Guantánamo Bay: Change We Can’t Believe In

By Elizabeth Gavin

This week, speculation is circulating in Washington that the Obama administration will issue an executive order to relax restrictions on the Cuban travel ban before Labor Day. In addition, the State Department added Daniel Erikson, senior associate of the Inter-American Dialogue and author of The Cuba Wars: Fidel Castro, the United States and the Next Revolution, to its Western Hemisphere Affairs staff. Some analysts point to these steps as evidence that President Obama is prepared to redeem pledges that he made during his campaign and make a change in U.S. relations with Cuba, particularly because Erikson has implied that he supports lifting the decades-old embargo. Erikson has also described the U.S. naval base at Guantánamo Bay as an example of “the craziness of the U.S.-Cuba relationship.”

Erikson’s appointment and the rash of speculations about relaxing the travel ban come a mere two months after a New York Times article accused President Obama of suspending efforts to close the Guantánamo detention center due to fierce opposition. If the administration has indeed put its Guantánamo agenda on the back burner, President Obama will fail in his commitment to closing the prison before the end of his term. While appointing more enlightened leadership in the State Department and expanding the right to travel to Cuba would be a step in the right direction, the administration’s efforts in warming relations will prove fruitless if the detention center remains open. A continued U.S. presence at Guantánamo will pose a massive obstacle to the normalization of U.S.-Cuban relations due to the questionable manner in which the area was acquired and the notorious reputation it has obtained over the last seven years as a major force of the U.S.-anti-terrorist.

A Coerced Deal

Located only 90 miles from Florida, Cuba has always held a special allure for the United States, particularly because of its ideal location and lucrative natural resources. The U.S. attempted several times throughout the 19th century to purchase the island from Spain and failed. Undeterred, John Quincy Adams produced his “ripe fruit” theory in 1823, maintaining that Cuba would naturally fall under U.S. control once it gained independence from the Spanish Empire. As Cuba inched toward autonomy, Washington feared that another European power would enter the region and, in response, promulgated the Monroe Doctrine. This attitude was again invoked after the Cuban Revolution in 1959 to justify U.S. intervention in Latin America to prevent the spread of communism.

By the end of the 19th century, Americans had made substantial investments in the island’s lucrative tobacco and sugar industries, and therefore had a vested interest in Cuban politics. By 1898, the decaying Spanish Empire began to lose its grip on Latin America, and support for intervening in Cuba’s fight for independence rapidly grew, not only in Washington, but also among the American public. Later that year, Spain surrendered and the Treaty of Paris was signed, designating Cuba as a “special territory” from which the U.S. was to withdraw after a protectorate relationship was established.

The United States oversaw the drafting of what would be the Cuban Constitution as well as the Platt Amendment, which contained two clauses that greatly impeded Cuba’s claim to complete sovereignty. Perhaps the most ironic section of the Amendment, Article III, maintained that the United States had “the right to intervene for the preservation of Cuban independence.” Article VII laid the groundwork for the perpetual leasing of Guantánamo Bay to the United States, saying that in order for the U.S. to maintain the independence of Cuba and protect its people, “the Government of Cuba will sell or lease to the United States land necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”

The United States officially acquired the Guantánamo Bay territory in 1903 under the Cuban-American Treaty. Tomás Estrada Palma, an American citizen who was to become the first president of Cuba, officiated the deal on behalf of Cuban authorities. The treaty was created to “execute fully the provisions of Article VII” of the Platt Amendment. The United States was to have absolute jurisdiction and to exercise plenary control over the area, on the condition that it would recognize Cuba’s ultimate sovereignty. This recognition became significant during the Bush Administration, which used Cuba’s technical sovereignty over Guantánamo to argue that the United States’ anti-torture laws did not apply to prisoners held at the base.

In 1934 the lease was reaffirmed with a second treaty that rendered the contract permanent unless both governments agreed to break it, or the U.S. formally abandoned the base property. It was also agreed that the United States would pay Cuba $4,085 per year to lease the area. To this day, Cuba receives an annual check for this amount. Since the Cuban Revolution of 1959, Fidel Castro has cashed only the first check, leaving the subsequent checks untouched in his desk. The Cuban government maintains that the first deposit was a result of the confusion immediately following the Revolution, and has since refused to cash the checks in protest of what it sees as an invalid treaty imposed upon Cuba as an act of conquest. The United States claims that cashing even just one check validated the treaty.

The base at Guantánamo Bay is the oldest overseas U.S. naval facility. Ironically, it is the only one in a country with which the United States does not have full diplomatic relations. In the wake of the Cuban Revolution, Washington broke off ties with Cuba, and ever since the base has operated as a clandestine enclave surrounded by Cuban territory.

Unwelcome Visitors

The Cuban government bitterly opposes the presence of a U.S. naval base, maintaining that the treaty is in violation of Article 52 of the Vienna Convention on the Law of Treaties, which states that a treaty is void if brokered by the threat or use of force. Cuba’s belief is that the Cuban-American Treaty was signed against the will of its people. However, it was drafted in 1903, and the Vienna Convention, formulated in 1969, does not apply retroactively. Not surprisingly, the U.S. government claims that the lease is valid.

Since the present government took power in 1959, Fidel Castro has continually decried what he calls an “imperialist occupation” of Guantánamo. Many legal specialists in the United States also recognize the illegitimacy of the Cuban-American Treaty, and have called for Guantánamo to be returned to Cuba. After the widespread criticism that engulfed the United States after the imprisonment of “enemy combatants” at the naval base, some experts recommended that the camp be closed and returned to Cuba in order to repair the damaged reputation earned by the Bush administration. The continued occupation of Guantánamo Bay is a painful remnant of 19th century colonialism and a symbol of Latin America’s unsuccessful fight against external intervention that has inspired anti-American sentiments throughout the hemisphere.

Caleb McCarry, the Bush administration’s Cuba Transition Coordinator, commented on the naval base in 2007, saying that returning Guantánamo Bay to Cuba could be considered if the Cuban government removed its one-party regime. McCarry’s statements imply that the United States retains the base as a means of punishing Havana for its leftist political system. This policy is glaringly hypocritical, as the United States has repeatedly reached out to promote talks with pariah countries such as Iran and North Korea. McCarry’s remarks are reminiscent of the widely condemned 1996 Helms-Burton Act, or the Libertad Act, in which the U.S. government again insulted Cuba’s sovereignty, offering to negotiate the return of Guantánamo Bay to Cuba, but only under the condition that the dialogue take place with a democratically-elected government (Section 201.12).

The State Department claims to be unaware of the Cuban government’s desire to reclaim the land that they see as rightfully theirs. John Regan, the State Department’s Cuba desk chief, said that to his knowledge, “the Cubans have never officially asked for it back,” nor have they publicly objected to the purpose that the naval base has served for the past decade. Cubans may have accepted Washington’s occupation of Guantánamo Bay as a fait accompli, and therefore do not wish to waste time pursuing control of the base. Others suggest that Cuba may not even particularly want to reclaim the area that has been riddled with controversy and disgrace.

An Ignored Executive Order

On January 22, 2009, two days after his inauguration, President Obama signed an executive order that declared the Guantánamo detention camp “shall be closed as soon as practicable, and no later than one year from the date of this order.” At the time, 245 detainees were still being held at the naval base. The President’s order required an immediate review of their statuses to determine if prisoners should be transferred, released, or prosecuted.

The order also called for the CIA to shut down the remains of its network of secret prisons and prohibited the use of coercive interrogation methods. Instead, intelligence agents were required to use the Army Field Manual used by U.S. military when interrogating terrorism suspects. The manual lays out 20 acceptable psychological techniques that avoid physical and severe mental anguish. Obama’s order to the CIA would still allow its personnel stationed abroad to temporarily detain terrorism suspects and transfer them to other agencies, but the order would no longer allow the agency to independently carry out long-term detentions.

Some of Obama’s political opposition immediately criticized the administration’s attempts to close Guantánamo Bay prison, saying that it would lead to the release of dangerous prisoners. Among Americans, support for closing the prison has significantly declined as a direct result of events such as the December 25, 2009 attempted bombing of a U.S. airliner and the failed bombing attack in Times Square in May of this year. The political tide could shift if public discourse were to focus on the high cost of operating an isolated prison facility. Pentagon officials believe that a prison in the mainland would save taxpayers about $180 million a year.

Upon the announcement of President Obama’s original order to close the base, Dennis C. Blair, then-Director of National Intelligence, promised to sternly enforce the new standard, saying, “It is not enough to set a standard and announce it.” Blair, who later resigned, conceded that the closing of Guantánamo would take time, but that it was a necessary step in amending what had become “a damaging symbol to the world.” Blair referred to Guantánamo as “a rallying cry for terrorist recruitment and harmful to our national security.”

On November 18, 2009, President Obama admitted that the detention camp would not be closed by his original January 2010 deadline. He stated he was hopeful that his administration would have the prison closed sometime this year, but he would not set a specific deadline. The President seemed not to be surprised nor disappointed that his original promise was not kept, acknowledging not only the strong opposing political factors, but also the technical, logistical, and legal complexities behind shutting down the camp.

Two Years of Inertia

According to Senator Carl Levin (D-MI), “the administration is not putting a lot of energy behind their position” on closing the prison. Senator Lindsey Graham (R-SC), who supports shutting down the facility, blamed the demagoguery of members of his own party, together with the decision-making paralysis of the Obama administration, for lack of movement on the issue.

Discussions between Senator Graham and the White House attempted to create a bipartisan legislative package to close Guantánamo, but efforts towards an agreement have since floundered. Officials have instead focused on praising small improvements made at Guantánamo, such as the banning of brutal interrogations and the overhaul of military commissions. This new approach moves away from the deplorable practices sanctioned by the Bush Administration. Despite these changes, however, the prison remains open still.

The White House denies that it has sidelined its efforts to close the prison, saying, “The President remains committed to achieving that goal.” Some officials maintain that Obama has already done his part, pointing to the administration’s proposal to move Guantánamo detainees to an Illinois prison. The location is an empty maximum-security detention center in Thomson, 150 miles west of Chicago. However, the Obama administration remained silent last year when the Senate blocked funds needed for the transfer or release of Guantánamo prisoners and again in May when the House and Senate Armed Services Committees voted to block funding for renovation of the Illinois prison. The lack of funding also restricts transfers of prisoners from Guantánamo to their countries of origin.

Some critics suggest that although the Obama administration may have privately conceded that, due to political climate of the President’s first term, closing the prison is infeasible, but it will continue to publicly refer to shutting Guantánamo down as a priority. Admitting failure on a pivotal campaign issue could be disastrous not only for the administration’s cultivated image as representing the spirit of “change,” but also for the United States’ world standing. The prison has become an intensely self-defaming symbol of torture at the hands of American officials, particularly in the Muslim world. For example, the Pakistani foreign office released a statement last year that said, “closing Guantánamo Bay Detention Center signals an important step towards upholding the primacy of the rule of law and adds the much needed moral dimension in dealing with terrorism.”

The Waiting Game

Today, 176 people remain imprisoned at the detention camp. Of this figure, about 100 have been found to be innocent and cleared for release by the Bush administration. However, they remain in custody, simply because they have nowhere to go. On one hand, U.S. officials say that these wrongfully accused prisoners cannot come to the United States for fear of what they would do if they were permitted inside our borders. On the other hand, if they are not allowed to enter the country, Washington’s allies would be hard-pressed to identify the reason why they should admit them into their own territories. Some countries simply do not meet the conditions or standards the administration has established for such repatriation. For example, the United States considers Yemen to be too unstable to repatriate 58 of its nationals now being held at the naval base.

Of the remaining prisoners who have not been cleared for release, there are two categories: those who will be tried, and those who simply will not. The first group will go through a process involving either a Federal Court or a Military Tribunal. It is up to presidential discretion as to which modality will be used. However, even if a prisoner is found innocent, he may not be released because the military is only required to “make the effort” to release prisoners. On the other hand, prisoners who will not be tried belong to perhaps the most alarming category of detainees, in which the evidence found against them is either illegitimate (often because it was extracted by torture) or deemed to be unreliable. These individuals will remain in United States custody until the president decides otherwise. Currently, there are 48 such prisoners at the naval base.

More of the Same

After President Obama’s “equal partnership” speech to Latin American leaders in 2009, many were left hopeful that the United States would finally move to normalize relations with Cuba. However, despite promises to close down the detention camp, President Obama has never committed himself to returning Guantánamo to the Cuban government. Moreover, the president’s previous attempts at improving relations with Cuba, such as allowing unlimited remittances and allowing Cuban-Americans unrestricted travel rights to the island, have proven to be relatively modest. Most disappointing, however, has been the President’s failure to fulfill his promise to close the prison. It is clear that the original passion with which President Obama approached the topic of closing Guantánamo seems to have atrophied over the past year. This key step towards normalizing relations with Cuba and rehabilitating the United States’ image abroad remains untaken.

Behind closed doors, a number of U.S. policymakers are prepared to acknowledge that the U.S. had indeed acquired Guantánamo Bay illegitimately and that Washington’s continued misguided Cold War policies toward the country display a blatant double standard in our foreign policy. Policymakers hopefully understand that political change in Cuba needs to happen naturally rather than as a result of a diktat issued at the behest of the United States. A policy of hermetic disengagement until U.S. wishes are satisfied is ineffective. For those who were optimistic that the new administration would develop less hypocritical policies towards the island, Obama’s continued inaction has been greatly disappointing. One can only hope that the new State Department appointment and efforts to ease the travel ban will lead to more concrete and diplomatic engagement with Cuba, and the last formal vestige of the U.S.’ Cold War policies will finally be removed.

This analysis was prepared by COHA Research Associate Elizabeth Gavin

COHA

COHA

COHA, or Council on Hemispheric Affairs, was founded in 1975, the Council on Hemispheric Affairs (COHA), a nonprofit, tax-exempt independent research and information organization, was established to promote the common interests of the hemisphere, raise the visibility of regional affairs and increase the importance of the inter-American relationship, as well as encourage the formulation of rational and constructive U.S. policies towards Latin America.

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