“The grant of the foregoing Article [regarding the leasing of Guantanamo] shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” Article II of the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations; February 23, 1903.
Washington may be Losing its Right, let Alone its Political Ability to Maintain its Control over Guantanamo
The Bush administration has made several declarations expressing its willingness to help Cuba make a smooth transition to a Washington-approved “democracy,” achieved through a “soft landing.” This transition would take effect upon Fidel Castro’s death or complete incapacitation (taking note of the Cuba leader’s botched operation and subsequent reports of his fragile health). However, one complex issue that is only now being raised is the judicial basis for the U.S.-occupied naval base at Guantanamo.
The facility, which fell under a U.S. leasehold for more than a century has again returned to the headlines with the confession made by Khalid Sheikh Mohammed, that he was the Al-Qaeda operative in command of the September 11 2001 operations. He admitted to the 9/11 terror attacks during a U.S. military hearing on Saturday, according to an edited transcript of the hearing released by the Pentagon on Wednesday. But even more ominous is the concern being voiced by at least one analyst close to the Bush White House that as result of several statements by relatively pro-U.S. Latin American leaders who stressed to President Bush their insistence that the U.S. should recognize the full sovereignty of Latin America nations, Washington could be faced with mounting demands throughout the hemisphere that Guantanamo – the symbol of 19th century gunboat diplomacy practiced by the Washington during the period– be returned to Cuba.
The Guantanamo Bay Naval Base, located on the southeastern tip of Cuba, reached a peak of notoriety after it was discovered that, in the post-September 11 world, it was being used as a detention center and torture facility. Individuals suspected of being terrorists were detained at Guantanamo, and were subjected to various forms of harsh treatment. Many detainees were imprisoned for years and were denied the protection granted by habeas corpu, if their alleged crimes had been committed in the U.S. In the beginning of 2007, with a change of regime in Cuba seemingly at least possible in the next year or so, it would be useful to question the continued presence of the American military on the island, and whether or not it would be wiser for Washington to systematically consider the orderly reversion of Guantanamo Bay to the present – or successor – government in Havana. It is important to keep in mind that the U.S. has never questioned that residual sovereignty over the bay always has rested with Cuba. In fact, State Department legal experts are reviewing their international law books in the now almost certainty that a serious movement arises throughout the hemisphere questioning the U.S.’s legitimacy in occupying Guantanamo under the present arrangement and whether or not it has been exhausted by the passage of time and the dramatic change of circumstances. At the very least, now we have a sharply anomalous situation where Cuba is “paid” a trifling annual rent from its most lethal enemy to occupy the facility in the Cuban nation.
Attention also should be given to the controversial speech given at the recent 43rd Munich Conference on Security Policy, by Russian President Vladimir Putin: “Incidentally, Russia – we – are constantly being taught about democracy. But for some reason those who teach us do not want to learn themselves.” This was a barely concealed –if not a nominally indirect – message targeted at the Bush administration. A similar statement could be made about Washington’s self-glorification of its respect of freedom, sovereignty and international law, while it, ahistorically, holds on to a colonial relic like Guantanamo instead of returning it to Cuba. Around the globe, in the aftermath of World War II, there has been a steady devolution of former colonies and other dependencies to local control – the decolonization of Africa in the 1950s and 1960s; Britain’s return of Hong Kong to the People’s Republic of China in 1997; even the reversion of authority over the Panama Canal to Panama in 1977. Guantanamo is one of those few territories that continue to exist in the world from a time when imperial societies imposed their will on weaker states.
The Invalidity of the Cuban-American Treaty on Guantanamo Bay
The Cuban government could use the 1969 Vienna Convention on the Law of Treaties (specifically articles 60 and 62) and the section dealing with the rebus sic stantibus clause (which is used in reference on Article 62 of the Vienna Convention) to make a cogent case for the devolution of its territory back to the Cuban nation. The fundamental change of circumstances, otherwise known as the clausula rebus sic stantibus, can be invoked to challenge the validity of treaties and lead to their termination. A 2003 lecture given by Dr. Alfred de Sayas, visiting professor of international law at the University of British Columbia, explains that it could be argued that the lease of a military base in a foreign country is conditioned on the friendly relations between those states, and that such pacts are terminated when a new sovereign government takes office that is fundamentally opposed to the alliance. Similarly the physical presence by treaty right of a hostile nation on Cuban territory is contrary to modern conceptions of sovereignty and of the sovereign equality of States. Indeed, as Dr. de Sayas argues in his lecture, it is an anomaly that the country that has imposed an embargo on Cuba for more than 40 years insists that it has a right to remain on its sovereign territory.
Moreover, the Guantanamo lease is right now 104 years old, which makes it only logical that it should be due for reconsideration by both governments. A 1967 article entitled “International Law and Guantanamo” (by Gary L. Maris in The Journal of Politics, Vol.29, No. 2, pp.263) declared that the legal term “lease” was not a disguise for the actual cession of Guantanamo to the U.S., but a relinquishing of jurisdiction over the area with the legal possibility of eventual recovery if the parties so desired or if conditions of the lease were not met. This makes it all the more necessary for Washington and Havana to discuss the Bay’s future.
Dr. de Sayas also explained that according to article 60 of the Vienna Convention, a treaty is voidable by virtue of a material breach of its provisions. According to the terms of articles 1 and 2 of the 1903 Lease Agreement, the use of the Guantánamo Bay territory was limited to coaling and naval purposes only, “and for no other purpose.” Hence, the repeated use of the territory as an internment camp for Haitian and Cuban refugees or as a detention and interrogation centre and prisoner of war camp and torture center is incompatible with the purpose of the treaty. Such actions by the U.S. would arguably bring about a material breach of the agreement justifying unilateral termination by Cuba in accordance with article 60 of the Vienna Convention.
The U.S. has also broken the agreement through another, though perhaps a less forceful, issue: the presence of commercial enterprises at Guantánamo, including a McDonalds. This constitutes a breach of the terms of article III of the supplemental July 1903 agreement between Washington and Havana over Guantanamo, which stipulates that “the United States of America agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”
The U.S. obtained control of Guantanamo as the result of the 1898 Spanish-American war. In 1903, Theodore Roosevelt, using the Platt Amendment passed by the U.S. Senate, pressured the weak Cuban government (which the U.S. had placed in power) to lease Guantanamo Bay to the United States in what essentially appears to be in “perpetuity.” This was no great task as Cuba was, at that time, an entirely dependent regime largely being ruled from Washington. The then Cuban president was an American citizen named Tomas Estrada Palma, who was persuaded to grant a lease of 117 square kilometers of Cuban territory surrounding Guantánamo Bay to the U.S. on February 23, 1903. Construction of a military base immediately proceeded in order to eventually house a contingent of American troops and a naval flotilla.
From its inception, Guantanamo was viewed as the first line of defense against any attack on the Panama Canal, over which the U.S. also had obtained jurisdiction from a comparable act of legal legendemare. The move to integrate Guantanamo into the chain of U.S.-dominated military facilities was mainly inspired by the Canal, and was driven by a security perspective. How the U.S. obtained this base is a prime example of an imperial power taking whatever it coveted as a fruit of war. The negotiations that ended in Washington gaining de facto control of areas former under Spanish control in the Pacific as well as the Caribbean, were not so much the results of deliberations between two equal independent nations, but rather negotiations between a relative superpower and its proxy state. Even if Estrada wanted to, he was powerless to affect Washington’s insistence that the Platt Amendment regulating Washington’s access to Guantanamo would be incorporated into the Cuban Constitution in 1901.
In 1934, as part of a movement to multilateralize the application of the Monroe Doctrine under the Pan American Union – which was undertaken by President Roosevelt under his “Good Neighbor” policy – Cuba was allowed to expunge the Platt Amendment from its constitution but was persuaded to negotiate a new lease regarding Guantanamo Bay with Washington. The Cuban government at the time had all the attributes of a full-fledged U.S. protectorate, ken to Britain’s relationship with post-Ottoman Empire satrapies. One of the three Cuban signatories on the new lease was the island’s future dictator, Fulgencio Batista. Article III of the 1934 treaty explains that: “So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has.” It is all but unthinkable to believe that the U.S. will be in the mood to voluntarily pack its troops and equipment from Guantanamo and redeploy them, just as it would be a long stretch to believe that any American administration (Democrat or Republican), at the insistence of Castro, would return the base to Havana’s sovereignty, no matter how redundant it’s continued use might be. Nevertheless, some parallel exists with the manner in which Washington transferred its authority over the Panama Canal back to Panama or Great Britain’s return of the Suez Canal to Egypt in 1956. What is certain is that Guantanamo irredenta might become Latin America’s war cry against the U.S.
Today, the Guntanamo Bay base (or “Gitmo” as it is commonly known by generations of U.S. military personnel) houses around 6,000 members of the U.S. armed forces and occupies 117 square kilometers of Cuban soil. For this huge piece of land Washington pays an annual rent to Havana of $4,085, the same figure which it has paid since 1934. An August 2004 article by the Armed Forces Press Service reports that the State Department sends a check to the Cuban government every July to pay for the base’s rent. However, in the same article, Navy Captain Les McCoy (a former commander of Gitmo) explained that Castro has only cashed one of the checks – in 1959, the year when he took power. Washington has used this one payment during the entire Castro era as the legal basis to say that Castro, by accepting the check, had agreed to the continuation of the lease. After Cuba had accepted that one and only check, Washington has continued to dutifully send the rent checks every year since, which the Castro government never again cashed.
Why the U.S. should [Not] stay in Cuba
Gitmo’s strategic importance increased during the Cold War, reaching its peak during the 1962 Cuban missile crisis, when it was feared that Cuba would be used as a staging area for either an attempted Soviet invasion of the U.S. or the launching point for a surprise missile attack against the American heartland. However, as geo-strategically important as the island may have been in the past, advancements in military technology and the current status of global geopolitics makes “Gitmo” somewhat irrelevant in today’s political environment.
In comparison, today there is no bona fide threat to U.S. security coming from Cuba. Furthermore, a possible missile attack, akin to the one posed by the missile crisis of 1962, is similarly beyond the realm of possibility. If launched from Cuba, such an attack would be suicidal due to the overwhelming force available to the U.S. to stage a massive counterattack. Also, it is a near certainty that the Cuban military does not possess any missiles with which to launch such an attack, let alone the nuclear warheads to arm their weapons. In any future military scenario, the U.S. is far more likely to be attacked by one of its main trading partners and renowned human rights violator, the People’s Republic of China – who recently tested a missile that destroyed a satellite in space – than by Cuba’s increasingly hapless armed forces, whose strained economic conditions has demoted it to third-rate status. In a March 2005 article, Dan Gardner of CanWest News Service explained that Guantanamo’s “other key purpose—protecting the passage to the Panama Canal Zone—became moot when then-president Jimmy Carter returned the canal to Panama.”
Lately, another justification for the continued retention of Gitmo has been its use as a detention facility for suspected terrorists, such as Khalid Sheikh Mohammed, and before that, would-be Haitian and Cuban refugees hoping to enter the U.S. The prison at “Gitmo” recently opened a new wing, called Camp 6, constructed by the controversial U.S. military contractor Haliburton Co., at a cost of $30 million. These developments indicated that Washington policymakers apparently had no plans to relocate the facility anytime soon. In a recent interview on C-SPAN, as reported by Global News Wire’s Charles Stimson, the U.S. deputy assistant secretary of defense for detainee affairs, took the position that:
It’s important during a time of war to have a place where, number one, you can take people off the battlefield and not allow them to go back to the battlefield, but also, exploit intelligence that they may possess […] Guantanamo today remains the key strategic intelligence platform in the war on terror.
But if the facility has proven to be useful, it also has turned out to be immensely controversial as well as symbolic of some of Washington’s worst mistakes, and the center where the most egregious human rights violations have occurred under U.S. auspices. In fact, the Bush White House could be correct in arguing that Cuba may be the scene of major human rights violations, they are just not committed by Cubans – as Bush asserts – but rather by Americans at Gitmo.
In spite of whatever important intelligence data may have been gained from using unorthodox means of questioning prisoners at Guantanamo Bay, it remains unproven if the same “effectiveness” in obtaining this information could not have been achieved by detaining the prisoners in another maximum security facility, located on U.S. territory, like a renovated Roosevelt Roads naval base in Puerto Rico (closed since 2004) or, less provocatively, some other site in the continental U.S.
Rationale for Returning Guantanamo to Cuba
Demonstrably, Cuba is no longer a security threat to the U.S.; therefore, there is little need to maintain a military base for which U.S. taxpayers have already spent tens of millions of dollars yearly, yet which serves no defensible strategic purpose other than guaranteeing a continuing U.S. presence that is deeply frustrating to Cuban authorities. Furthermore, the redeployment of Guantanamo personnel to some location in the continental U.S. could provide an important inflow of income to local suppliers surrounding the new facility. A possible model for this occurred last September, when the 554th Electronic Systems Group out of Wright-Patterson Air Force Base was tasked to supervise a $627.8 million contract awarded to Computer Sciences Corp., a California.-based company. The contract will help generate high-tech jobs as the company goes about configuring, installing and conducting training for the Expeditionary Combat Support System.
Another good reason for Guantanamo’s reversion back to Havana is that such an act would be viewed as an important gesture of goodwill and sound judgment stripped of any propaganda intent. As it is, Gitmo is a daily reminder to islanders that Washington continues to disrespect their country and their government. Returning the base to the Cubans, as President Carter did with the reversion to Panama of the Canal, could markedly ease tensions between the two governments and lead to an advance in constructive engagement and the orderly assessment of a long list of disruptive issues.
Fidel Castro has referred to Guantanamo in recurrent and often passionate speeches throughout the decades of his rule, describing the base as “a dagger plunged into the Cuban soil,” and proclaiming that it “is there just to humiliate Cuba.” During a recent one-day visit to Mexico (at a time when Fidel Castro’s health was on everyone’s mind), U.S. Commerce Secretary Carlos Gutierrez declared that “”if we can be of help, we are ready to help in that transition [to democracy in a post-Fidel Cuba].” But if Washington is as committed as it claims to be to aiding Cuba after the demise of Castroism, a good starting point would be to return Gitmo, allowing a Havana government to have full control of all of its national territory for the first time in almost a century. Such an act would be interpreted as a manifestation of goodwill notwithstanding who would be occupying the White House or in charge of Havana.
A final positive effect of Guantanamo’s reversion would be that Washington would be able to rebuild its international credibility concerning hemispheric issues. Critics charge that while the U.S. denounces torture, insisting on the defendants’ right to a fair trial in the abstract, it has systematically violated its own declarations with its persistently shadowy use of the detention facility for extra-constitutional procedures. These types of contradictions have done grave damage to the U.S.’s credibility abroad. The closing down of what essentially is one more redundant U.S. base through a proceeding of the Base Realignment and Closure Commission (BRAC) should be a decision not influenced by radical rightwing Republican political operatives like Florida Representative Ileana Ros-Lehtinen, but one which is determined by the facts on the ground. Cuba should have long ago regained control of a territory that has generated international outrage because of its use as a center for torture and psychological warfare under the supervision of U.S. military personnel as well as intelligence agents. Its closure and prompt reversion could not come at a better time.
Any kind of redeployment of troops or base closing must be approved by BRAC. This commission is charged with coming up with recommendations on how the deployment of this country’s military forces should be reshaped in terms of infrastructure and organizational charts. According to Donna Miles of the American Forces Press Service, the four previous BRAC rounds — in 1988, 1991, 1993 and 1995 - resulted in 97 major closures, as well as 55 major realignments of U.S. military facilities. The current 2005 recommendations, according to officials cited by Miles, represent the most aggressive recommendations ever proposed by BRAC, which will affect more than 800 installations and which features plans to move thousands of U.S. military personnel currently serving overseas to stateside facilities. It is certain that the subject of Gitmo was never brought up during these discussions due to the absolute veto almost certainly to be exercised by Miami’s Cuban-American leadership as a result of such a move. But speculation can be made on the number of U.S. being closed down whose existences are far less controversial than that of Guantanamo.
A Legal Limbo
The reasons why Guantanamo was chosen to serve as a detention center in the U.S. war against terrorism represent a bizarre set of legal issues and the political framework that surrounds them. Washington could have avoided such complications if it had sent the suspected terrorists held at Guantanamo to any other U.S. base abroad, like for example in Germany. But such a move could have angered the local authorities, to the extent of even alienating an important U.S. ally. In Guantanamo’s case, Washington does not care if it angers the Castro regime or not, which made the base into its obvious choice to serve as an illegal detention camp where it would be certain that no embarrassing questions would be asked. As Gardner explains, the U.S. interpretation is that “Cuba retains ‘ultimate sovereignty’ of the land on which the base sits, according to the lease, but the U.S. also has “complete jurisdiction and control. In effect, that means the American military is in charge of Guantanamo just as it is at Fort Bragg or any base in the United States. But at the same time, Gitmo remains foreign soil.” Lawyers for the suspects traditionally have argued that Havana’s sovereignty simply does not exist on a day-to-day basis but only as a residual, largely theoretical factor. Ttherefore, American courts should be prepared to disregard Washington’s arguments. In response to such a claim, the U.S. government has insisted on a strict and literal reading of the lease, which states that Cuba is sovereign, so American courts have no jurisdiction over any foreigners being housed at the facility.
Last June, the U.S. Supreme Court ruled that suspects held at Guantanmo could petition for a judicial review of their cases, to which Washington responded by staging a series of military trials that were widely interpreted at the time as being severely bias. In a related action, the Military Commissions Act, signed by President Bush last October, essentially denied the prisoners their right to habeas corpus. Will Sullivan, of the U.S. News & World Report, reported in a January article that: “when [Republican] Sen. Arlen Specter offered an amendment to the Military Commissions Act [in 2006 that would restore habeas corpus], it fell just three votes short of adoption. A batch of new Democrats would seemingly give the bill strong odds of passing, but Congress might have a hard time mustering the votes to overcome a possible presidential veto.”
Can Trust be Built between Washington and Havana that Could Lead to Gitmo’s Return?
As the world continues to wait for the latest news concerning the status of Castro’s health, the nature of a post-Fidel Castro Cuba is being debated and plans are being hurriedly prepared. As to how to constructively respond to the all but certain Raul Castro takeover of the island, Washington might want to use its de facto control over Guantanamo as a gesture for advancing good will or, at least, as a bargaining chip.
In the event of an electoral victory by the Democrats in the 2008 elections, there is likely to be a campaign component stressing the beginnings of a new inter-American relationship, which could consider returning Guantanamo Bay to its rightful owners. Such an act would be demonstrative of a more cooperative and goal-oriented Washington bilateral policy rather than the ideologically-driven orientation that has been common place for decades. Such a template for a new generation of policy with constructive engagement at its core is essential to facilitating even minimal dialogue between the two countries in the future. Reversion would be just the kind of gesture needed for both governments to demonstrate that they are capable of turning their energies to bilateral talks to each other as part of a “new beginning” campaign. Just as Washington is arranging to do now with North Korea (and is willing to do with Iran), there should also be a Havana-Washington constructive dialogue, with Guantanamo conceivably being thrown into the pot as a sweetener.
This analysis was prepared by by COHA Research Staff
March 15th, 2007
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