Fordham International Law Journal Volume 30, Issue 3 2006 Article 10 Guantanamo and U.S. Law Joseph C. Sweeney∗ ∗ Copyright c 2006 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Guantanamo and U.S. Law Joseph C. Sweeney Abstract This Article deals with the United States’ presence at Guantanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep- water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the Spanish-American War in 1898. Originally a coaling station, it had been utilized for training, repairs, anti-submarine warfare, and humanitarian rescue before its present uses. Its continued presence is deeply resented in the island State of almost twelve million people, but the persistence of the communist dictatorship of Fidel Castro has strengthened U.S. determination to hold on, even though the base no longer serves a military purpose. GUANTANAMO AND U.S. LAW Joseph C. Sweeney* Hurrah for old GITMO on Cuba's fair shore The home of the cockroach, the flea and the whore We'll sing of her praises and pray for the day We get the hell out of Guantanamo Bay!t I. INTRODUCTION This Article deals with the United States' presence at Guan- tanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep-water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the Spanish-American War in 1898. Origi- nally a coaling station, it had been utilized for training, repairs, anti-submarine warfare, and humanitarian rescue before its pre- sent uses. Its continued presence is deeply resented in the island State of almost twelve million people, but the persistence of the communist dictatorship of Fidel Castro has strengthened U.S. determination to hold on, even though the base no longer serves a military purpose. II. BACKGROUND A. The Spanish Colony After Spain lost most of its empire in Latin America during * John D. Calamari Distinguished Professor of Law, Fordham University School of Law, New York City; Captain, JAGC, USNR (Ret.). The author is most grateful for the research assistance of his students, Mr. Ryan Krebsbach, '07, and Mr. Matthew Daly, '07, and the patient and skillful work of Ms. Judy Haskell and Associate Law Librarian Kate McLeod. t Old Navy song, recorded in 1968 by Oscar Brand. The Spanish language uses an accent mark over the second "a" in Guantanamo. Navy practice eliminates the accent in English, a practice followed herein. 673 674 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 30:673 the first quarter of the nineteenth century, Cuba became its most valuable colony, the source of wealth from sugar, tobacco, and minerals, produced largely by slaves.1 In 1854, the United States had sought to annex Cuba by purchase or other means as a slaveholding outpost from which U.S. slaveholding could be protected, but Northern Abolitionists would never agree to such an expansion of slavery.2 By that time, the Cuban economy, 1. Efforts by Spain to plant a settlement on Cuba after its discovery by Columbus in his first voyage (1492-93) did not begin until 1512 at Baracoa near the eastern tip of the island, and, were quickly followed by other settlements with headquarters at Santiago de Cuba, in 1515. From this outpost the conquistadors of Mexico under Cortes set out in 1519; at the same time as an outpost on the northeast shore, Havana (San Cristobal de Habana) was established. By 1533 native opposition to Spanish land seizures ended as their numbers decreased from war and disease and the importation of African slaves had begun. Sugar and tobacco plantations soon joined the mines as sources of wealth and Spanish entrepreneurs developed Cuba into Spain's richest colony. The bloody slave revolution in Haiti from 1791 to 1803 forced the French planters out and many of them made the short voyage to Cuba where they were permitted to reestablish their sugar and coffee plantations worked by slave labor. See RICHARD GOTT, CUBA: A NEW HISTORY 11-26 (2005); HUGH THOMAS, RIVERS OF GOLD: THE RISE OF THE SPANISH EM- PIRE, FROM COLUMBUS TO MAGELLAN 312-22, 473-91 (2004) [hereinafter THOMAS, RIVERS OF GOLD]. The absence of Spanish language authorities is not meant to imply a lack thereof; there is a substantial literature by Cuban, Spanish and Latin American scholars in all aspects of Cuban history; for instance, see the bibliographies in Go-r, supra, HUGH THOMAS, CUBA: THE PURSUIT OF FREEDOM (1971) [hereinafter THOMAS, CUBA], and FRANK ARGOTE-FREYRE, FULGENCIO BATISTA: FROM REVOLUTIONARY TO STRONGMAN (2006). 2. The United States, then a country half-slave and half-free, entered Cuban his- tory at the beginning of the nineteenth century as U.S. slave-owning interests sought to invest in or acquire the slave-dependent island. See THOMAS, CUBA, supra note 1, at 207- 32. In fact, slavery was so important to the Spanish Colony of Cuba that it survived more than twenty years in Cuba after its abolition in the United States; slavery was abolished in 1886, the first year of the reign of Alfonso XIII under the regency of his mother, Queen Maria Cristina. See id. at 281-92. Efforts to acquire Cuba by purchase were made informally after the United States purchased Florida in 1819 but were ignored. A formal effort in 1853 occurred in the wake of President Pierce's inaugural address in which he suggested further territorial purchases. Secretary of State William L. Marcy offered to purchase Cuba for US$130,000,000. In October 1854, a meeting at Ostend in Belgium of the U.S. Minis- ters to Spain (Pierre Soul6), France (John Y. Mason) and Great Britain (James Buchanan, future president) composed a dispatch ("The Ostend Manifesto") sug- gesting future policy respecting Cuba, concluding that if Spain should refuse to sell, "then by law human and divine, we shall be justified in wresting it from Spain, if we possess the power." The Secretary of State rejected the suggestion and dismissed Minis- ter Soul6. Nevertheless, the dispatch received wide publicity in Europe and the United States. Spain's colonial policy has been described as both "incompetent and tyrannical," especially in the 1895-1897 uprising when General Valeriano Weyler (called "the Butcher" in the U.S. press) introduced concentration camps in which thousands of 2007] GUANTANAMO AND U.S. LAW based on sugar, was more closely connected to the United States than to Spain.3 Spain retained a tight control as an independence move- ment broke out in 1868. Interference by the United States in 1875 to assist the Cuban efforts was bitterly resented by Spain, which succeeded in crushing the ten-year struggle in 1878. When a new Cuban revolt occurred in 1895, Cuban revolutionar- ies, many of them exiled in Florida and New York, sought to in- volve the United States, which was again ready to assist in negoti- ating independence from Spain, but Spain refused to consider the offer and troops under General Valeriano Wyler brutally sup- pressed the rebellion, which ended in 1897. General Weyler re- signed when the Liberal Spanish Prime Minister Praxedes Sagasta sought to bring peace to Cuba through negotiations and home rule, but it was too late for negotiations.4 B. The Spanish-American War The next year, on February 15, 1898, the battleship Maine exploded and sank in Havana harbor,5 setting off a rancorous call to war with Spain by several powerful newspaper editors. Cubans died of disease and starvation. See HUBERT HERRING, A HISTORY OF LATIN AMERICA 405-07 (2nd ed. 1961); THOMAS, CUBA, supra note 1, at 316-38. After the end of U.S. slavery, Cuban revolutionaries from 1868 to 1898 operated out of the United States, usually from Miami and New York where Marti, Estrada Palma and Gomez planned the overthrow of Spanish colonialism. See THOMAS, CUBA, supra note 1, at 293-315. See generally 2 PHILIP S. FONER, HISTORY OF CUBA AND ITS RELATIONS WITH THE UNITED STATES 198-309 (1961); FREDERICK MERK, MANIFEST DESTINY AND MIS- SION IN AMERICAN HISTORY 167-214 (1963). 3. See Gorr, supra note 1, at 67-70. United States predominance as Cuba's largest trading partner continued until the total embargo on Cuban imports and exports after the Castro revolution. See infra note 118. 4. SeeJOHN A. S. GRENVILLE & GEORGE B. YOUNG, POLITICS, STRATEGY AND AMERICAN DIPLOMACY: STUDIES IN FOREIGN POLICY 1873-1917, at 179-200, 239-66 (1965); WILLIAM L. LANGER, DIPLOMACY OF IMPERIALISM, 1890-1902, at 517-20 (1935). 5. Ostensibly on a courtesy call, the battleship Maine anchored in Havana harbor on February 15, 1898. She was in fact there to protect U.S. citizens and property. An explosion at 9:40pm destroyed the ship, which sank, killing 266 members of the crew.