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President Donald Trump’s plan to send up to 30,000 migrants to Guantanamo Bay has echoes of the past — but it’s also unlike anything ever done before. And it’s almost certainly doomed to fail.

That’s according to Harold Hongju Koh, a Yale University law professor and former senior State Department official whose career has been deeply intertwined with Guantanamo.

“It is a mirage, but it’s also insane,” Koh said in an interview with POLITICO Magazine.

The U.S. detained migrants at Guantanamo in the early 1990s under President George H.W. Bush, when thousands of Haitians fled violence in the wake of a military coup and were picked up at sea by the Coast Guard. The administration refused to accept their claims of political asylum and sent them to a makeshift detention camp on the base on the southeastern tip of Cuba.

Koh led a team of Yale students and human rights lawyers who challenged the detention of the Haitians, ultimately winning the release of about 250 of them into the U.S. before losing the broader case when he argued before the Supreme Court.

Trump is proposing something altogether different by sending people who have already been in the United States, including some legally. The move is also sure to invite new legal challenges — as well as some of the same problems that emerged under President George W. Bush in the post-9/11 era, when the U.S. turned the base into a military detention center for people suspected of links to al Qaeda and the Taliban. More than two decades later, that saga is ongoing, with 15 men still held there.

“This has been a consistent pattern over and over again,” said Koh, who was the State Department’s top lawyer in the Obama administration. “Shortsighted policymakers think they found a solution, and they have ended up creating a problem for which they have no exit strategy. That’s exactly what they’re doing again.”

The following transcript has been edited for length and clarity.

What was your immediate reaction when you heard President Trump wanted to detain migrants at Guantanamo?

I thought: unprecedented, delusional and punitive.

Unprecedented, because Guantanamo has been used to hold people who are coming to the United States. It’s never been used as a place to send people who’ve been in the United States, especially those who have been lawfully in the United States at some point. Secondly, it was punitive, because what has been found over and over and over again is that people think of Guantanamo as a solution, and it turns out to be a false solution, because there is no exit strategy. Once we put people there, it’s incredibly difficult to get them out. And third, I thought it was delusional, because I don’t think it’s ever going to be implemented in the way that he signaled the amount of resources that it would take to bring 30,000 people to Guantanamo.

They’re going to want to use those resources at the border instead. It’s frankly insane to be devoting that kind of effort to creating an offshore prison camp. And if we create an offshore prison camp, what do we say when Putin creates an offshore prison camp to hold the next generation of his opponents, and then the Chinese decide to create a prison camp to hold Uyghurs from Xinjiang?

It is a mirage, but it’s also insane.

Before we get into the legal issues, what are some of the practical problems with using Guantanamo as a detention center for migrants?

Well, the base was built to be a coaling and refueling station. It wasn’t built to be a prison camp. It is, in fact, very poorly suited to be a prison camp. There aren’t that many buildings. Most of them are temporary. It’s a desert environment, and to put people into tents is extremely unsafe as a public health matter. The water is bad. Hospital facilities are insufficient. The more people you put there, the less capacity you have.

And then, most important, people who are at Guantanamo are in prison. They have no way to spend their time productively. They can’t work. They can’t contribute to the economy. They can’t support themselves. And so they’re entirely dependent on the people who are holding them captive. It’s a way of taking people who may be working legally on work authorizations and making sure that the only way that they can manifest their frustration is by demonstrating, rioting, resisting force. For this, the military on Guantanamo is totally unsuited. The idea that uniform military are now being enlisted for immigration detention on a grand scale is exactly what people didn’t sign up for in a volunteer army. If they wanted to be prison guards, they could sign up to be prison guards, but that’s not what they did.

In 1993, Judge Sterling Johnson Jr. in the Brooklyn federal court ruled that the conditions constituted a due process violation because they were inadequate medical conditions for people who had HIV or other kinds of people who were at Guantanamo. Pregnant women and unaccompanied minors had to be taken off because the medical facilities were insufficient. And that was with a much smaller population. When you’re talking about 30,000 people, you’re going to have to bring in five or 10 hospitals. They have one hospital, which is not capable of handling anything that’s very difficult.

Does the U.S. government see Guantanamo as a legal black hole where it can pretty much do whatever it likes?

Well, that’s how they see it, but that’s not how the courts have ruled.

People being held against their will at Guantanamo have a right to seek habeas corpus. If that’s so, there’s no legal advantage to the government in holding them offshore. You might as well just hold them in the United States, which has been done in other kinds of migrant camps on the border.

The problem is that large-scale detention efforts like this are bound to fail, because there’s nothing for the detainees to do other than to get frustrated, resist authority and get into fights with the military who are holding them. The children are not being educated adequately, and they sit around losing years of education and educational opportunity. It’s an amazing way to convert a group of people who otherwise would want to pursue productive activities into being prisoners having committed no crimes.

Can the Trump administration legally detain migrants there as part of its crackdown on immigration, or does it need authorization from Congress?

They can do it for the short term. But as it becomes prolonged and arbitrary detention, obviously, it will become illegal, and Congress would have to authorize it.

What are some of the practical challenges the government faces?

On one side of the base, there is something called the Migrant Operations Center, which is actually quite a small building that has maybe 100 cells. You have to cross the base to get to the other side, where there’s a sort of American-style village, where soldiers live. There’s a McDonald’s. There’s a department store. And then beyond that are the camps. The Guantanamo detainees from the 9/11 period, the al Qaeda detainees, are being held there essentially in a national security maximum security prison. Those are two completely different facilities.

The Migrant Operations Center, over the course of the last 15 to 20 years, has had usually anywhere from five to 25 people being held who came from Cuba or Haiti or whatever. But they’re quickly sent back or sometimes sent to Canada or Australia. So there’s never a large number of people there. They have a contingency plan where they could expand if necessary, and when you land at Guantanamo, at the airport, there’s a picture of the maximum capacity during the 1994 [episode], which shows tents as far as the eye can see on all available runways. If that’s so, you’re not able to land planes on Guantanamo.

All that Trump did was to authorize them to increase capacity, the secretary of Defense and secretary of Homeland Security, up to 30,000 people. It’s a form of saber rattling because to actually get people there, to actually have people holding them, to actually have infrastructure to support them — water, electricity, hospitals, food — would just be unbelievably expensive. On the al Qaeda side, it costs something like a million dollars a person a day to hold someone at Guantanamo. It’s the most expensive prison camp in the world.

And the main reason we have a problem is that Congress has not passed comprehensive immigration legislation or provided adequate resources for the policies that the Trump and Biden administration were originally pursuing. This is scaling it up probably 10 or 15 times. Where’s the money going to come from? Especially since they’re planning to do all these other kinds of things — invade sanctuary cities, mass deportations, a lot more activity at the border. I mean, this is a massive addition to that. That’s why I call it a delusion or a mirage. It’s designed to scare people, but I don’t think it’s going to be fully implemented.

Are there any similarities to what Trump is proposing and what the U.S. did with the Haitian and Cuban migrants in the 1990s?

No, the Haitians and Cubans had never entered the United States. They were stopped in the high seas, and they were interdicted, as it was called, and they were brought to Guantanamo. In some of the cases, in some of the boat lifts, Fidel Castro had deliberately urged people to leave as a way of harassing the United States. They never entered.

The people Trump is talking about bringing there are people who are inside the United States, are persons under the due process clause and have certain legal rights. They can still invoke those rights even if they’re taken to Guantanamo. The Supreme Court has said very clearly that the government cannot divest an individual of rights simply by moving them around so that they lose their right to habeas corpus.

This is a very poorly lawyered order.

This has been a consistent pattern over and over again. Shortsighted policymakers think they found a solution, and they have ended up creating a problem for which they have no exit strategy. That’s exactly what they’re doing again.

We’re now down to 15 people at Guantanamo. The place should be closed and shuttered, and instead, every time that happens, somebody thinks, oh, here’s a solution. And then, you know, we’ll go another 20 years, and then they’ll be disabused of that at that time. Even George W. Bush, who opened Guantanamo [as a military detention center], said he thought it was a mistake after the fact. At one point it reached a height of, but it was never more than, 743, I think. And then nobody was brought there under Obama or Biden. And in fact, nobody was brought there under Trump One. Through a process of attrition, they finally got it down. Interestingly, in the first Trump administration, he never expressed that interest in expanding Guantanamo, but suddenly, somebody on his new team has thought they found a new solution, and you know, they’ll just be educated like everybody else.

Are any of the legal fights from the post-9/11 years at Guantanamo relevant to what is being proposed?

There were three very significant Supreme Court decisions — striking down the government’s effort to run military commissions, to deny people statutory habeas corpus and deny people constitutional habeas corpus. Those don’t directly relate, because these people are not prisoners of war or unlawful combatants. They’re migrants, and so they don’t have the exact same rights. But the question is whether, in addition to detaining them, they try to subject them to a different system of justice, a truncated system of justice. The problem is that if they had been held in the United States, which is where they are now, they would have certain rights under the immigration laws, and they don’t lose their rights just because they’re transported to Guantanamo. What the Supreme Court cases have made clear is that Guantanamo is “territory subject to the jurisdiction of the United States” and so they ought to be able to claim comparable rights. Given that, what is the advantage of moving them there at extraordinary expense, and with the inadequate facilities, in that the litigation will ensue anyway? The only advantage, I suppose, is to claim that they’re out of sight, out of mind. But that’s just creating an offshore prison camp that you hope that nobody notices, but the Chinese and the Russians certainly will.

How do you think this will all play out?

Donald Trump doesn’t make long-range plans, and he doesn’t stick with his plans when faced with concerted opposition, so I think he wants to use shock-and-awe methods to scare people, and that’s what he’s doing across the board. It’s already stimulated a large amount of resistance. Many of his orders have been blatantly unconstitutional, like the order on birthright citizenship. If he tries to move people to Guantanamo, there’ll be more litigation, and people are now very familiar with litigating about Guantanamo. People have worked on these issues for 30 years. The people who worked on this in the government, many of them are being sacked, and so for them, it will be new.

I think the net result is they will start to find that this is not the easy solution that they thought. And then they will quietly slow it down and stop doing it. But don’t be surprised if Trump claims that he got some kind of symbolic victory out of it, and that maybe nobody will look behind to see that the emperor has no clothes.

If you were still in the government, what would you be telling the Trump administration?

I’d be saying, you only think you found a new solution. Every policymaker that thought they came up with a magic solution realized that it’s a poisoned chalice. There is no exit strategy. Don’t kid yourself about the amount of time and energy that will be devoted to this. You have not solved the problem. You’ve created a problem.

I’d say don’t do it even if I completely agreed with the reasons for doing it. This is about the least effective way you can imagine. It will be high profile. It will be litigated. It will create turmoil among our allies. And it will be a failure.

Wherever the U.S. flag flies, people have rights, and Trump seems to believe that through the artifice of moving people there, he can insert them into a black hole. That’s a proposition that the Supreme Court rejected before, and even this Supreme Court, I think, will reject it again.

Ben Fox is a senior editor at POLITICO. He reported from the U.S. base at Guantanamo Bay, Cuba, dozens of times between 2005-2021 while covering the base as an Associated Press journalist.