Circumventing the U.S. Legal System at Guantánamo
The Political Scientist Michael Strauss analyzes the violations and mistakes the U.S. government may have committed at Guantánamo’s prison. Photo: Gianni Carta
The files the website Wikileaks recently published reveal that often prisoners at Guantánamo Bay wrongly judged a minimal threat were released, while hundreds of innocent detainees were held in the detention center set up in January 2002 under the Bush administration. Also, the prison at Guantánamo did not help the U.S. to dismantle the Al-Qaeda network. Hundreds of prisoners, including elderly men as old as 89 found to have senile dementia and children as young as 13, were detained without having any links with terrorist organizations. Meanwhile, Barack Obama who in January 2009 pledged to close the detention center within a year announced in March 2011 the lifting of a two-year freeze on military trials at Guantánamo Bay. Michael Strauss, a professor in international relations at the Centre d’Études Diplomatiques et Stratégiques in Paris and author of The Leasing of Guantanamo Bay (Praeger, 2009), goes beyond the repercussions of the Wikileaks files as he delves into the territorial leasing arrangement between Cuba and the U.S. This was the agreement in 1903 that gave the U.S. jurisdictional rights over Guantánamo Bay. Strauss questions how the Bush administration circumvented the U.S. legal system in his ‘’war against terror.’’
CartaCapital: Is the prison at Guantánamo Bay a fiasco?
Michael Strauss: I wouldn’t necessarily call the prison at Guantánamo a fiasco itself, but the framework in which it was supposed to operate might be called that. The underlying decisions that led to the prison being at Guantánamo Bay—shifting the crime of terrorism into the military sphere from the civilian sphere, and wanting the prisoners detained in a place outside U.S. sovereign territory—didn’t solve the problem the Bush administration wanted to solve. What it did do was create a lot of new legal, political and moral problems. This scenario made it more difficult for the U.S. to address the issue of terrorism effectively with international partners.
CC: Do the prisoners have any rights?
MS: The U.S. Supreme Court ruled in 2008 that the prisoners at Guantánamo do have rights such as habeas corpus under the U.S. Constitution. But the ruling came only after some of them had been there for six years without being charged with crimes, and after some of them had been tortured. And the story isn’t over yet. The court said the prisoners have these rights because the U.S. has a sort of de facto sovereignty over Guantánamo Bay, even if Cuba is the official sovereign. But prisoners detained at the Bagram airfield in Afghanistan don’t have these rights. Note that Bagram has the same legal relationship to U.S. sovereign territory as Guantánamo has, based on their respective leases. Last year, a regional U.S. appeals court decided not to grant to the prisoners at Bagram the same rights given in 2008 to the detainees at Guantánamo. In my opinion that was a wrong decision. It was flawed by allowing geopolitical factors to intrude.
CC: Does the prison at Guantánamo comply with international humanitarian law?
MS: International humanitarian law, which is effectively the modern name for the law of war and includes the Geneva Conventions and other elements of international law, evolved mainly for governing the actions of states relative to combatants and civilians from other states. Where it gets to be uncharted territory is that you have a situation in which the U.S. is not fighting against another formal army sponsored by another state. The enemies may believe that they are fighting for another state—but they are not formally representing the states that may be sponsoring them. They are representing an ideology, a belief, and effectively what you are fighting is a non-state actor. International humanitarian law has not quite caught up with how to deal with situations like the one at Guantánamo. So, if captured, do they become prisoners of war and therefore the Geneva Conventions must apply? Then there’s the whole aspect of whether they are designated combatants or enemy combatants, which adds a big legal gray area. This issue has become a huge dilemma because it was brought to Guantánamo. Guantánamo represents the transformation of terrorism into a military crime. And that transformation is somewhat nebulous: how much of it is civilian, how much of it is military?
CC: Should alleged terrorists be tried in civilian courts?
MS: They should be tried in civilian courts because the justice system in the U.S. is good enough to do it. Yes, in civilian courts you have all sorts of pitfalls and technicalities, but these are meant to protect the rights of the prisoners. And they have rights. Terrorism used to be a perfectly good crime for the civilian justice system in the U.S. and other countries. It is a system that has managed to evolve to accommodate any other changes in the trends of criminality for more than two hundred years. There were bombs in New York in the 1970s planted by a group that was seeking independence for Puerto Rico. There was the bombing of the U.S. Federal Building at Oklahoma City. All of those were civilian crimes. Suddenly they become military crimes. Perhaps military justice plays well with the public, because the public wants to see justice done but they would also like to see people punished. And perhaps to some people the second takes precedence over the first.
CC: You wrote that the main aim to take terrorism outside the civilian justice system is to ‘’shop’’ for the verdicts the U.S. wants.
MS: I think to an extent it has been put in military courts because the likelihood is greater that you will get the result you want. And if you want to prosecute these people and get them convicted, which will have some political benefits, no doubt, it is tempting to have the trial occur at a place where conviction is more likely, where you don’t have to deal so much with technicalities, and other factors that enter into civilian justice.
CC: One argument for having military trials was that the civil court system was too busy.
MS: Actually, I think that argument is crap. If the civilian court system is too busy for anything you simply build more courts and add more judges. Yes, it costs money, but so does building this entire structure at Guantánamo. Somehow you are going to allocate the resources that are necessary to try these people, whether it is in the civilian system or whether it is in the military system. It is something the U.S. government simply has to accommodate. What if all of a sudden there is a surge in some other kind of crime? The courts are not going to say, sorry we are too busy.
CC: In January 2009 President Obama pledged to close the prison at Guantánamo within a year. Why didn’t he?
MS: For Obama, closing Guantánamo Bay was an issue that he considered fairly important. But in the world of Washington D.C. as in any government, priorities matter and the U.S. government had to address other priorities affecting the country. The recession was going to have a direct impact on a far greater number of people within the U.S. than whatever Washington did with respect to Guantánamo, as important as that was from a moral and legal standpoint. There was also Obama’s effort to reform the health care system, which was a huge and difficult project that was also going to affect far more people directly than whatever happened at Guantánamo. But by not acting immediately he probably weakened his ability to close it later. This is in part because people’s expectations might have been lowered by the delay. And since the mid-term elections in 2010 the Republicans now have a majority in the House of Representatives.
CC: You wrote that the main reason the Bush administration built a prison at Guantánamo was due to the fact that the U.S. had no sovereignty there.
MS: That was the primary reason that Guantánamo was chosen as the site for this prison. It was a place where the U.S. had complete jurisdiction and control, but not sovereignty, under terms of the lease. To sum it up, where the U.S. is sovereign its legal system applies in full. And where the U.S. has jurisdiction—but it is not sovereign—its legal system applies only partially. How much of its legal system it applies at Guantánamo has been a matter of constant debate in court rulings, tribunals and in legislation for over one hundred years. Guantánamo was the choice for a prison starting in January 2002 for other reasons. It is a military base. It is a secure facility from where it would be very difficult to escape. There is a minefield around the perimeter. But most importantly for the decision, it is worth repeating, was that it was not a U.S. sovereign territory, and not all the constitutional protections such as habeas corpus applied there according to court decisions up to that point.
CC: In the case of Guantánamo the U.S. didn’t have sovereignty (until it acquired de facto sovereignty in 2008), but it had complete control over the territory. How can that be?
MS: This is one of the dilemmas. In fact, this lease that dates back to 1903 separated control from sovereignty. Cuba is the sovereign state, but the U.S. can act like it is the sovereign one. And the U.S. can act that way indefinitely because it is the only country under the lease agreement that can have any control there, and any jurisdiction. But then what is a de facto sovereignty? That becomes a whole new issue even if Cuba is the de jure sovereign state.
CC: In the 1903 agreement there is no fixed expiration date for Cuba to regain control over Guantánamo. When is the lease going to end?
MS: Duration is one of the aspects of territorial leases, and you have various types. You have the Hong Kong model, which had a fixed term of 99 years. You can also have leases that last for specified periods, but automatically renew if there’s no objection from either country. Israel uses two small areas of Jordan this way. Another type of lease is the perpetual territorial lease. France and Spain have one of those. And then you have what you get with Guantánamo, which is a lease with indefinite duration. It expires if certain things happen, according to the lease. For instance, the U.S. decides it does not want the place anymore.
CC: Cuba does not have a say in this.
MS: That’s part of this whole mess at Guantánamo. In 1934 there was an agreement between the U.S. and Cuba, a treaty of relations that updated the relations that both countries have with each other. It actually reinforced this idea that only the U.S. can decide when it will leave Guantánamo Bay. The treaty didn’t say anything about Cuba being able to kick the U.S. out.
CC: Does the U.S. really mean it when it says that it will leave when Cuba will become a democracy?
MS: During the period before the prison, when naval activity at Guantánamo Bay was being scaled down, the site became politically useful for the U.S. as a bargaining chip to try to pressure Cuba to become a democracy. There was a law passed in 1996 called the Helms-Burton Act law that was aimed at promoting the restoration of democracy in Cuba. One line in this law said that in case the Cubans adopt a democracy it would be the policy of the U.S. government to be ready to negotiate revising the terms of the lease, or returning control over Guantánamo to Cuba.
CC: Is the detention center a violation of the terms of the lease?
MS: The terms of the lease state that the U.S. can only use the space it has at Guantánamo Bay as a coaling station and as a naval station. Back when they made the lease in 1903, the main fuel for ships was coal and if you wanted to have an international presence it made sense to have stockpiles of coal abroad, like at Guantánamo. By the end of the 1930s when oil, and no longer coal was the fuel of choice, Guantánamo Bay became an oil depot. A change like this has implications, and it might have been an opportunity for Cuba to say stop it you are violating the lease. When a country has a military base on another country’s territory an attack on that base might affect the host country. If somebody bombs coal piles they are going to burn. However, if you drop a bomb on oil tanks they are going to explode, the oil is going to pollute and it may go into Cuba’s waters. The type of danger that other parts of Cuba faced from being next to an oil depot was much greater than from being close to a coal depot. This is how the U.S. has been behaving through the changes of fuel, the modernization of the military in the twentieth century. Did any of these changes violate the terms of the lease? Cuba has never protested against that to my knowledge.
CC: The other restriction of the lease was that Guantánamo was to be a naval station.
MS: Correct. And it turns out that the terms naval base, military base and naval station can often be used rather informally. But the U.S. has had a hierarchy of military facilities for the U.S. Navy, and a naval station has a distinct place in that hierarchy. It is the lowest level facility that you can have. At the top of the hierarchy is the full-fledged naval base, a much bigger and broader kind of facility than a naval station, under the U.S.’s own definition. In the run up to World War II the U.S. elevated the status of Guantánamo Bay to become a naval operating base. In 1952, during the Korean War, it elevated the status once again to become a full-fledged naval base. The Cuban acquiescence of this made some sense given what was happening in the world at the time. In the run up to World War II, would you rather have a little naval station on your territory or a big military base? But, again, once you allow this to happen it becomes very difficult to backtrack from it and to argue that the U.S. is violating the lease.
CC: Why has Cuba criticized the U.S. presence at Guantánamo but does not take any legal or diplomatic action to regain control over its territory?
MS: Cuba may not be as antagonistic for the U.S. presence at Guantánamo as it says it is because the rhetoric that has been used politically has not always matched the actions of the government vis-à-vis Guantánamo. And in fact despite the Cuban rhetoric that the U.S. is occupying the place illegally, Cuba has never done anything in a legal forum to try to get back control. It has made a public policy to keep the return of Guantánamo not a priority issue. In a way, the fact that the lease continues to exist, and that is honored by both sides, may reflect certain benefits for Cuba. After all, Guantánamo gives Cuba a bigger voice in the United Nations.
CC: How does it give Cuba a voice in the UN?
MS: The fact that the U.S. is at Guantánamo and has remained there against the stated wishes of the Cuban government since the 1959 Revolution does raise questions about whether Guantánamo Bay is occupied territory or not. The law of occupation has not really been updated to accommodate this kind of phenomenon. It assumes that occupation comes about through belligerent means. At Guantánamo you have a foreign military presence on Cuban territory against the stated wishes of the Cuban government since 1959. But the U.S. argues that the lease lets it stay as long as it wants. Is that occupation, or not?
CC: Some legal scholars argue that after the 1959 Revolution, Cuba should have regained sovereignty over Guantánamo based on the doctrine of rebus sic stantibus (‘’under which a treaty may be declared void because of a fundamental change in circumstances’’), but others counter the argument referring to pacta sunt servanda (‘’the doctrine that embodies the obligation of states to comply with treaties into which they have entered’’). What is your opinion?
MS: I think Cuba’s best chance at getting control over Guantánamo Bay back would have been to argue that fundamental circumstances behind the lease agreement had changed. Since the 1959 Revolution Cuba has no longer been what it was, and the military base that has been on its territory is now in the hands of what it considered a hostile country. This points to what could have been a pretty decent argument of rebus sic stantibus, the doctrine that a treaty may be abrogated if fundamental circumstances behind it have changed. Cuba never went through this in any legal tribunal or arbitration or any other forum, but it certainly must have considered it because it was among the potential arguments it used to show that the U.S. was at Guantánamo illegally when the government put out a publication in 1970. The publication spoke of the U.S. at Guantánamo and the reasons it should not be there, and it elaborated several legal arguments. They conflicted with each other to some extent. But what that said to me was that even eleven years after the Revolution, Cuba still had not decided on a single argument to use to try to get control over Guantánamo back. That suggests that even at an earlier stage after the Revolution, getting back control over Guantánamo was not the highest priority for Cuba. Others countered the argument of rebus sic stantibus by using the equally strong argument that if you sign an international agreement you have to stick to it—that it is your obligation as a state, as an actor in international law to comply with the agreements you sign.
CC: Cuba receives from the U.S. an annual rent. It does not reject the check but does not cash it. Why is this?
MS: Like most international treaties there was an English version which was the official version for the United States, and a Spanish version, the official version for Cuba. The English version stipulated that the rent would be $2,000 in gold dollars. The Spanish version stipulated that the U.S. would pay an annual rent of 2,000 pesos, payable in gold dollars, to Cuba. That would have been all well and good if the value of the peso equaled the value of the dollar. But it didn’t. One peso at the time was worth 60 U.S. cents. The U.S. kicked Spain out of Cuba in the Spanish-American War of 1898, and one of the first things it did was to devalue the Spanish colonial peso, which was then used because the U.S. thought it was overvalued and it made the value of the peso 60 cents in American money. Even after Cuban independence, one peso was not equal to one dollar. Note that we are still talking about the Spanish colonial peso, as the Cuban peso did not exist. Over the years the U.S. dollar was devalued through official devaluations, most notably this happened in the early 1930s during the Great Depression, when the U.S. along with most countries of the world went off the gold standard and gold became outlawed. So the U.S. was no longer to make payments in gold coins to Cuba. The U.S. started sending checks to Cuba every year. But the amount was no longer $2,000 because the dollar was worth less than it was before: the amount in dollars was increased to compensate for the devaluation. The current rent that the U.S. pays or tries to pay has been $4,085 per year. This represents the official US government value of $2,000 gold dollars. But it also reflects the 1903 value that was set for the rent. One of the flaws of the treaty is that an arrangement like this inherently involves two variables that were not taken into account. One is changes in currency values and exchange rates over time, and the other is changes in the value of the property being leased. Neither of these were taken into account. So the $4,085 that the U.S. government pays today is meant to represent the value that was put on Guantánamo Bay for purposes of this lease in 1903. That’s why it seems on the surface to be a bargain for 45 square miles (117.6 square kilometers).
CC: And it seems more of a bargain because Cuba does not cash the checks.
MS: Indeed. Since 1960 the Cuban government has taken in the checks written by the U.S. government to its Treasury but has not cashed them to protest the fact that U.S. has remained at Guantánamo Bay. Now, if Cuba has any hope of getting it back under international legal arguments, one of the things it would have to do is to show that it has protested the U.S. presence there. Cuba does not reject the checks outright, it keeps them. Raúl Castro, the current Cuban president, said when he was Defense minister that the checks were being saved for an eventual museum that will be built to remind everyone that the U.S. was there and Cuba did not want them there. The interesting thing is that Cuba’s refusal to cash the checks is an openly stated and publicly known policy. So the U.S. is paying in a way that it knows in advance won’t work. The U.S. doesn’t pay Cuba by electronic transfer because it does not have normal banking relations with them due to the U.S. trade embargo against doing business with Cuba.
CC: Is the U.S. paying Cuba in good faith?
MS: That’s a question worth asking. When you pay with a check, the legal moment of payment is when you cash the check. So the fact that the U.S. continues to pay only by check knowing that they will not be cashed does raise some questions such as, is the U.S. paying Cuba in good faith? Fidel Castro has called the payments a symbolic value. And perhaps not cashing them is something that Cuba could use in an eventual legal argument to try to get control over Guantánamo back. The other thing about paying by check is that U.S. government checks become void after one year if they are not cashed. So in two respects these checks lose their value. One is that they are not cashed and become valueless after one year. And the other is that by not being cashed the payment is actually not ever made anyway. Therefore, Guantánamo Bay as a territory is absolutely free to the United States. Of course, it costs a lot of money to do things there, but having it is free. And that puts Cuba in the odd position of protesting the U.S. presence at Guantánamo Bay, but at the same time making the conditions for that presence financially better than the lease actually says. Again, it is a trivial point but an interesting one.
CC: Does Fidel Castro put the checks in a drawer in his office in Havana, or does he, as some people claim, send them to a bank account in Switzerland?
MS: I am sure Cuba has an account in Switzerland, just like most governments do, but not for the checks. Chances are they were never destroyed because they have some value in a political sense. So my guess is that they are somewhere in a desk in Cuba, awaiting a museum, which may take a long time to come into being.