Institutionalizing harm

At the Munich Security Conference over the weekend, former U.S. Senator and Secretary of State Hillary Clinton spoke to the audience about the cruelty unleashed by the Trump administration, as well as its attempts to return to some nostalgic “past” and its dreams of controlling or excluding whole parts of the population.

Addressing immigration directly, she said, “Migration has been a huge flash point. more people were deported under my husband and Barack Obama without killing American citizens and without putting children into detention camps than were in the first Trump term or this first year of Trump's second term... There is a legitimate reason to have a debate about things like migration. It went too far. It's been disruptive and destabilizing and it needs to be fixed in a humane way with secure borders that don't torture and kill people.”

I’d already started working on this post last week, yet what Clinton said fits in cleanly with what I wanted to consider today. I have serious concerns about her line of thinking.

On a related note, the partial government shutdown (which began the same day Clinton delivered that soundbite) is focused on the Department of Homeland Security, with Democrats refusing to allocate funding until a series of immigration policy reforms have been accepted. The demands include rollbacks on the use of masks during operations, a requirement for judicial warrants instead of administrative ones, the use of body cameras, clear identification of personnel, and several other measures. Republican Senators have balked at any concessions, often claiming that agents face personal risks if people know who they are.

I’d like to address the dangers inherent in both Clinton’s comments and the demands made on ICE by Senate minority leader Chuck Schumer and House minority leader Hakeem Jeffries. They both paint a picture that—if we’re willing to look at it straight on—suggests the country is at an inflection point.

I absolutely believe that Hillary Clinton and Democratic leadership on the Hill are horrified by what ICE and Border Patrol are doing right now. And I don’t know anyone who isn’t a Trump supporter who approves of this violence—or who wouldn’t be thrilled to see any part of that brutality hemmed in.

But, paradoxically, what Democratic leadership is calling for runs the risk of making the overall Trump project on immigration permanent. Today, I want to address why some of the talk of reforms is well-intentioned, but also a minefield that could solidify the expanding network of camps going forward.

The roots of a crisis

First, I want to acknowledge reality. Hillary Clinton isn’t wrong about the number of deportations under Presidents Bill Clinton and Barack Obama. So why did immigration enforcement under Donald Trump seem different during the first Trump administration—and why is it much more visibly violent in the year since Trump returned to office?

The reason is twofold. In part it seems different because Trump an his allies are doing something different. As immigration expert Aaron Reichlin-Melnick noted yesterday, immigration looks different because border crossings have been smothered brutally and precipitously in Trump’s second term, but the administration wants to keep posting big numbers. So we see agents trying to meet quotas, grabbing anyone in the interior that they can.

There’s also a visible difference because Trump externalized something that had been folded into the system. During his first administration, “immigration enforcement” goals shifted away from the prior focus on criminals with deportation orders, with the administration asserting that any undocumented immigrant could be targeted at any time. The idea was that no undocumented immigrant should feel safe. Public strategies like family separations were inflicted to provide highly visible punishment that would frighten those already in the U.S. and those coming into the country without papers.

In the second Trump administration, the goal so far appears to be to frighten every immigrant, documented or not. And given that the federal government is currently returning to an attempt that failed to make headway in the first Trump administration—a focus on stripping status from naturalized citizens—we can conclude that they now want even immigrants with U.S. citizenship to be frightened in the same way.

These operations were never really about the status of those being deported. They’re about Stephen Miller’s obsession with removing as many people of color from the U.S. as possible.

There are countless examples to back up this idea. But here are just two: The Guardian reported that the U.S. government recently spent more than $1 million per detainee to send some passengers to countries they have no connection to, only to see many sent back to their home nations at further taxpayer expense. And this week, Rep. Mark Alford told CNN, "If you tie a judicial warrant to what ICE is doing, it will never happen."

What the Trump administration is doing isn’t any kind of rational or legal process. It is a sham, built to demonstrate vindictiveness and hate.

Unexpected tradeoffs

And now we see Secretary Clinton saying migration has gone too far. And Schumer and Jeffries are demanding measures to install guardrails on behaviors from immigration law enforcement.

But Hillary Clinton seems not to understand that Trump is able to do what he is doing in part because of what her husband and Barack Obama did during their presidencies (as well as both Bush presidents) and the tools they bequeathed to him. Tom Homan spent decades with the border patrol, for instance, and Obama brought him in to help run ICE.

As for Schumer and Jeffries, they’re failing to see that we can push for reforms but have to simultaneously take on the whole apparatus now shifting further and further into a lack of unaccountability: the paramilitary-style street actions, the unconstitutional detention, the refusal to respond to court orders, and the massive expansion of detention camps for civilians without trial.

History offers many examples of someone hoping to do a good thing by limiting the reach of another person’s malicious actions, while accidentally winding up contributing the greater harm by institutionalizing it. This can happen through validating a program’s legitimacy by not arguing directly against it. It can happen by reinforcing the bureaucracy of a bad system. And it can happen by accidentally reforming an abomination just enough so that it passes legal or political muster and can continue to exist.

In my history of concentration camps, I included a good deal about Guantanamo, because it remained (and remains) an ongoing threat. I want to lay out three examples from Gitmo’s history that illustrate the danger we’re in right now with regard to responding to the Trump administration’s grotesque immigration overreach.

1990s Gitmo

I’ve written about some of these issues before, but not quite in this way. In the 1990s, long before the War on terror detentions began happening there, Guantanamo became famous as a detention site for Haitians and Cubans who were picked up at sea trying to get to the U.S. They were taken to Gitmo with the idea that they would have fewer legal rights, and fewer options for making a home in the U.S. than they would if they managed to make it to the Florida coast.

Thousands at a time were detained in terrible conditions. There were riots and lack of access to medical care, as well as HIV-positive detainees who were segregated in horrific quarters. Teams of students and lawyers collaborated to bring cases pressing judges to assert jurisdiction and protect the detainees, even though the site wasn’t part of the mainland United States.

In one case, a judge in a federal district court in Brooklyn ruled that the detainees were entitled to constitutional due process, including the right to a lawyer, the right to proper medical care, and the right not to be held indefinitely. Faced with this outcome, the Clinton administration made a deal.

The plaintiffs at the heart of the case would be released, but it would come at the cost of the judge’s ruling being vacated, so as not to tie the government’s hands going forward. Those potential legal protections would not end up on the books for anyone that followed. The clients in that case were saved. But it wound up leaving Guantanamo in a gray area in which it wasn’t clear that detainees held there had any legal rights or recourse.

The legitimization—or to more parallel more closely what’s happening on Capitol Hill today—the safeguarding of a few rights in a limited way is a dangerous path to tread. The small reforms, which surely did save some lives, led to a second, more harmful stage nearly a decade later.

War on Terror detention

After 9/11, the Bush administration was looking for a location to host extrajudicial trials, somewhere where rough justice might be administered, a place where legal shortcuts might not be strictly legal, but where (it could be argued that) housing hundreds of war-on-terror detainees with plans to harm them might not be strictly illegal either. Guantanamo was the only place that fit the bill.

The second way that Guantanamo history is especially relevant is that after 9/11, the Supreme Court followed U.S. legal tradition. Given that Congress had passed an authorization for the use of military force in September 2001 to respond to the attacks, the justices initially gave President G.W. Bush wide leeway on the military operations that followed, even as many of them breached both norms and existing laws.  

By 2004, with the case of Yaser Hamdi, they had begun to express discomfort with both the legality of the current mass detention without due process at Guantanamo and how long the government might wind up extending it.

When Supreme Court Justice Sandra Day O’Connor wrote the opinion for Hamdi, she pondered the possibility that the military actions against Al Qaeda might never end and observed that “If the Government does not consider this unconventional war won for two generations,” a detainee might wind up subject to indefinite detention for the rest of his life.

In that particular case, the decision O’Connor wrote ruled in favor of the plaintiff’s right to contest his detention, but also noted that Congress had authorized it in the first place. Her comment reflecting concerns about indefinite detention had been recorded for posterity in the decision of the court.

Yet her observation wasn’t some kind of self-executing directive requiring that after one generation had passed but before a second one was complete, the whole operation would have to be shut down. And so, here we are, twenty-four years after Guantanamo’s inauguration: it is still a stain on notions of due process and democracy, still a threat to the country.

The three branches

An authoritarian response to the crisis of 9/11 wasn’t checked early on by the courts. However, after the Supreme Court greenlit a number of early excesses, it did finally deal a significant blow to the Bush administration’s agenda. In 2006, with the case Hamdan v. Rumsfeld, the Supreme Court ruled that the military commissions system to try detainees at Guantánamo Bay was unfair and illegal.

To be fair, courts are limited by the cases that appear before them. They can only rule on the matter at hand. But in this case, instead of addressing the larger issues involved in the rendition and detention underlying the program as a whole, the Supreme Court left a loophole that Congress could easily make its way through.

In response to the court declaring the military commissions unconstitutional, Congress legalized what the justices had declared illegal, passing the Military Commissions Act as a direct response to the Supreme Court’s decision. By 2007, Guantanamo’s existence as a detention camp for suspected terrorists and a place to give them kangaroo court trials—an initial massive overreach on the part of the executive branch—had by then been examined and then institutionalized by all three branches of government.

Exerting checks and balances limited part of the harm by forcing an end to elements of the Bush administration’s tactics, but wound up strengthening the core of that initial overreach. O’Connor’s note in the Hamdi decision that all this might become a problem if it went on for a generation became a quaint observation about a phenomenon that would, in the end, outlive her.

Expeditionary Gitmo

There’s a third way in which Guantanamo is relevant here—a way I’ve never talked about before. The courtroom complex at Guantanamo, known as Camp Justice, was built as an expeditionary project in 2007. This was done through a 100-person team composed of national guardsmen from six states. The idea behind an expeditionary approach was that the facility could be stood up very quickly, avoiding delays.

“A larger permanent facility was initially planned to support the proceedings, but it was scrapped in favor of the expeditionary concept that would be ‘quicker, cheaper and better,’” Air Force Maj. Chad Warren, operations officer for 474th Expeditionary Civil Engineering Squadron said back when he was building the courtroom. When I attended a week of hearings at Camp Justice back in 2015, the expeditionary nature of the place remained one of the unusual aspects noted by the public affairs team.

Expeditionary facilities were not the only related development from the Department of Defense under the second Bush administration. Expeditionary civilian workers were also brought into use in that same era. A Rand brief from a decade ago noted that the Department of Defense “increasingly looked to its civilian workforce to fill critical needs overseas during Operations Iraqi Freedom and Enduring Freedom.”

How does this relate to what’s happening with immigrant detention in 2026? It connects to the expanding network of detention camps the Trump administration is rushing to establish today.

Earlier this month, Pablo Manriquez’s reporting for Migrant Insider showed that the Trump administration’s new plan, already in progress, is to use additional expeditionary contracts, this time through the Navy, to quickly stand up a number of camps nationwide.

As Manriquez wrote, “The mechanism for this expansion is the Worldwide Expeditionary Multiple Award Contract (WEXMAC), originally designed for military logistics abroad. In a move to bypass traditional competition delays, the Navy’s Supply Systems Command has repurposed the vehicle for “TITUS”—Territorial Integrity of the United States. This $45 billion increase, published just weeks ago, converts the U.S. into a ‘geographic region’ for expeditionary military-style detention.“

The legacy of Camp Justice

The process that was used to build Camp Justice, the kind of physical framework for military justice at Guantanamo, will be used to create countless Guantanamos with far more detainees, and far less in the way of delay and restrictions than normal Defense Department contracts. And this time, it will all happen inside U.S. borders.

The Rand analysis from 2016 noted that “U.S. Northern Command (USNORTHCOM), which ‘deploys’ its own civilians within the United States, did not have a need for DoD expeditionary civilians at the time of the study. However, it did not rule out the possibility in the future if it were possible to mobilize these personnel on very short notice.”

Over time, Guantanamo became a fusion of U.S. and foreign soil for military purposes, but without any of the rights inherent in that idea. The expeditionary aspect there was part of a larger model for how to carry out an unethical mission—the War on Terror. Later, expeditionary approaches were used in Iraq—a preemptive, arbitrary war. And now with this massive Navy expeditionary contract, the earlier abominations become a model for how to carry out military-style rough justice against civilians in the U.S. itself.

Some of what the U.S. government is perpetrating in this moment is a conspiracy to commit heinous criminal acts against vulnerable people. But along with that, another whole part of this process is the natural growth of administrative bureaucracy that was planted long ago in poisoned soil and has continued to grow for decades.

There are so many moving parts to the terror the government is imposing. It’s hard to keep up! But it’s critical that we keep track of this underlying bureaucracy of harm, some of which predates Trump, and much of which will outlive him, if we don’t shut it all down.

Democrats’ demands

And this is the risk of the list of demands that Schumer and Jeffries have circulated about how to hem in and address ICE and Border Patrol abuses that have taken place in Minneapolis and across the country. Not every measure they’re putting forward will be useful (looking at you, body cameras), but many ought to happen. And of course it would be excellent to stop some of the violence that’s been unleashed.

But what are the enforcement mechanisms? When dealing with lawless agencies, how will accountability be ensured? More importantly, by not addressing the issues of the greater legal obscenity of the larger project as a whole, by not acknowledging the ways that inhumane detention-focused and punitive policies across decades have brought us to this point, and by not directly addressing our burgeoning camp system, Democratic leadership risks becoming complicit in this new wave of U.S. immigration purges by letting them continue with only a few band-aids on the tactics.

How many U.S. residents ever knew or now remember now that Sandra Day O’Connor clearly thought war-on-terror detention at Guantanamo would be deeply problematic if allowed to continue indefinitely? Who will lead the call for a dismantling of this sick network of camps instead of merely pressing for a few changes while throwing in condemnations that, like O’Connor’s comment, will mark only the moment in which someone knew better but didn’t actually stop what followed.

Free to speak

Unlike the Courts, Congress isn’t dependent on what matters of law come through the system. Representatives and Senators can actively choose what to address and what bills to introduce. While in the minority, everyone knows that Democrats can’t magically get votes for things they want. But they can take on big issues and support the groundswell happening against ICE and Border Patrol—and the camp facilities expanding at an alarming rate across the country.

Though Secretary Clinton might want us to hand it to her husband and Barack Obama on immigration, their policies are part of what laid the groundwork for what is happening now. We can reject their immigration policies, and those of the Bushes, and Biden, and Trump, too.

We should press our elected representatives to demand the active dismantling of DHS and its massive, metastasizing camp system. It’s beneath a democracy to run such an operation. The flexible and fast expeditionary model is also easy to dismantle. But it won’t go away on its own. We must demand it.

Elected officials can put it on the public radar now as an issue for the elections, and so can we. Ask your neighbors if they’re really going to vote for the person who wants a concentration camp full of your other neighbors in your back yard.

In the meantime, we can continue to work on the ground, to protect our actual neighbors and our metaphorical ones from ICE, as so many are already doing, whether it’s as ICE observers in courtrooms or neighborhoods, as deportation flight watchers, or as school patrols that help keep children safe.

We can work against the acquisition of warehouses for camp detention. There are so many successes on this front—most recently in Dallas. Keep going. The administration’s violence is picking up speed in part because Trump and his lackeys are terrified that we who oppose them will stop them and hold them to account.

And we will. Don’t let up.

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