Posted on 12/01/2003 10:01:33 AM PST by Triple
Visit the official U.S. Navy website for Guantanamo Bay and the first thing you'll see is a picture of a gigantic American flag planted firmly on Cuban soil. The picture confirms the obvious: that this forty-five square mile chunk of territory, geographically part of Cuba, is under direct and exclusive American control.
The United States has occupied Guantanamo Bay for over a century. U.S. Marines first wrested control of Guantanamo from Spain in 1898, at the outset of the Spanish-American war. The American government later formalized its power over the territory via agreements signed with Cuba in 1903 and 1934, back when the Cuban Republic was an obedient client state.
A single clause in these agreements reserves "ultimate sovereignty" over the territory to Cuba. Except for the right to an annual rent -- money that the current Cuban government refuses to accept -- Cuba's formal sovereignty has little practical value. No matter how unhappy the Cuban authorities may be with the United States, their putative "tenant," they are unable to evict U.S. forces from the island.
Cuban sovereignty over Guantanamo exists only in the abstract. Yet it is, for the U.S. government, a convenient legal fiction. In the current litigation over the fate of the hundreds of detainees held on Guantanamo, the government's position is premised on the fact that Guantanamo is technically foreign soil. Because Guantanamo is part of Cuba, argues the government, it is beyond the reach of American courts.
What is most dismaying about these formalistic discussions of Guantanamo's legal status is not simply that they disregard the practical reality of U.S. control over the territory. They also, quite mistakenly, ignore the U.S. government's deliberate decision to place the detainees there.
This much should be clear. The detainees did not accidentally fall outside of the jurisdiction of the federal courts because they ended up on Guantanamo. Rather, they were brought to Guantanamo for the very purpose of being kept beyond the jurisdiction of the courts.
A Constitution-Free Zone
A few weeks ago, the Supreme Court agreed to hear two cases brought on behalf of foreign detainees on Guantanamo. Although the appeal has not been framed in precisely these terms, what the Court will rule on, in essence, is whether Guantanamo should remain a Constitution-free zone.
As the situation now stands, it is not Guantanamo's security features that make it a tempting place to hold detainees. In Illinois, Colorado, and elsewhere, there are high-tech super-maximum security prisons that are far more secure than the makeshift facilities on Guantanamo. What makes Guantanamo unique is that, if the Supreme Court accepts the Administration's views, the courts will have no role in monitoring and protecting the right of the detainees held there.
The key precedent underlying the Administration's position is Johnson v. Eisentrager. In that 1950 case, the Supreme Court denied a group of convicted German war criminals the right to seek federal court review of their sentences. The Court's opinion placed great emphasis on the fact that occupied Germany, where the prisoners were being held, was foreign territory.
The Court has never before ruled on the legal status of Guantanamo, but the lower courts have. In the 1990s, when tens of thousands of Haitian and Cuban refugees were detained on Guantanamo, the courts reached differing conclusions regarding the implications of Cuban sovereignty over the territory.
In a 1992 ruling by the U.S. Court of Appeals for the Second Circuit, which was later vacated as moot, the court found that the Cuba's residual sovereignty over Guantanamo did not strip detainees there of all rights. Three years later, however, the U.S. Court of Appeals for the Eleventh Circuit took the opposite view. Relying on the fact that the detainees were held outside of U.S. territory, it found that they were "without legal rights that are cognizable in the courts of the United States."
The Government's Choice of Where to Imprison
There are many good reasons not to extend the Eisentrager precedent to cover Guantanamo. Even without overruling Eisentrager, the Court should find for the Guantanamo detainees.
Yet a re-reading of Eisentrager shows what an embarrassment it is, like the Japanese internment cases of the same era. Justice Hugo Black, one of the dissenters in the case, raises powerful objections to the majority's stubborn and begrudging focus on territorial sovereignty.
"Does a prisoner's right to test the legality of a sentence," Black asked, "depend on where the Government chooses to imprison him?" He warned, specifically, against allowing the executive branch, "by deciding where its prisoners will be tried and imprisoned," to deprive the federal courts of their power to protect individual rights.
What is most relevant, Black explained, are not abstract notions of sovereignty but instead concrete realities of power and control. "We control that part of Germany we occupy," he noted. "Only our own courts can inquire into the legality of [the prisoners'] imprisonment."
Whenever and wherever the U.S. government imprisons someone, the courts should be able to review it. The contrary idea -- power but no law -- is lawlessness.
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Joanne Mariner is a human rights attorney based in New York. Her previous columns on the detainees on Guantanamo can be found in the archive of her columns on this site.
Heck, why should they stop at Guantanamo?
Let the Supremes claim ALL of the Caribbean for the US!
This author fails to recognize the reality of this particular situation: it is not a Japanese Internment camp -- it is really a prison for combatants who will mostly NOT cease hostilities once sent home.
These "detainees" are (generally) motivated by religion and ideology. These principles do not end with a signature. These are sworn enemies of the United States. The usual rules cannot apply here.
I trust that the Government will argue this case in that direction.
Do you think that the US Constitution is too fragile and inflexible to handle these combatants?
According to what rules should the detainees be kept?
Regards,
</end rant> I predicted this was coming the other day when the future transfer of British illegal combantants into British custody was announced. Bringing up the hysteria-mongering BS again.
Show me a case where Joanne Mariner fought for the human rights of Scott Speicher.
Best Regards,
Anyone care to discuss the interesting points of the article?
Everything I've read has said that all detainees who are at Gitmo were picked up on the battlefield, and all were of non-Afghan or Iraqi backgrounds. I am aware of two American-born combatants, both of whom were brought back to the United States for trial.
(1) The US Constitution does not directly address non-citizens or POWs. So maybe I could answer this way:
Fragile? No (although recent SCOTUS decisions on other topics make me wonder about that as I'm typing).
Inflexible? No again, though as I say it simply is a document that (evidently) wasn't directed towards combatants.
In other words, then, I would love to see the Court respond by saying "this is a matter for the Executive Branch as the group charged by the Constitution as responsible for the Defense of the United States, subject to current applicable international treaties." And with that, they esentially throw the case out of Court as not really being a Constitutional issue.
(2) Under what rules: I don't know the definition of this term "enemy combatant". I understand the reluctance to call them POW's, however, though I know our military to be among the most respectful on earth to prisoners. My personal consternation is this: how/when do you finally opt to send them home? Won't they simply try to kill us again? It's the same quandry that Israel has with Palestinian prisoners.
Overall, I have no problem with the current policy of indefinite detainment. If their brothers in arms can ultimately be defeated, then the release of 600-800 Gitmo comrades won't matter.
If they were in a POW camp in Mosul, would that be purposefully keeping the detainees from federal courts? This author is not a moron but obviously is in favor of radical enemies of the USA to have the same freedoms as every day Americans.
Maybe a 'foster-care' system in which these so-called Human Rights writers host 3 or 4 of these guys in their home for the duration?
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