Argument: Past Cuba-US treaties forbid the current use of Guantanamo

Issue Report: Guantanamo Bay Detention Center


  • Marjorie Cohn. “Close Guantánamo Prison”. truthout. May 23, 2005 – “Illegal US Occupation of Guantánamo The real question the media should be asking is why our government continues to illegally operate its prison at Guantánamo Bay, scene of widespread of torture and abuse. The occupation of Guantánamo by the US military violates the 1903 and 1934 treaties concluded between the United States and Cuba.
Guantánamo Bay came under United States control in 1903 when Cuba was occupied by the US army after its intervention in Cuba’s war of independence against Spain. The Platt Amendment, which granted the US the right to intervene in Cuba, was incorporated into the Cuban Constitution as a prerequisite for the withdrawal of US troops from Cuba. That provision provided the basis for a treaty granting jurisdiction over Guantánamo Bay to the United States.
The 1903 Agreement on Coaling and Naval Stations gave the United States the right to use Guantánamo Bay “exclusively as coaling or naval stations, and for no other purpose.” Twenty-one years later, President Franklin D. Roosevelt signed a new treaty with the Republic of Cuba, which abrogated the Platt Amendment and the 1903 treaty.
But this 1934 treaty, in the spirit of Roosevelt’s “Good Neighbor” policy, maintained US control over Guantánamo Bay in perpetuity until the United States abandons it or until both Cuba and the U.S. agree to modify it. The new treaty, however, specified that “the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect.” That is, Guantánamo Bay can be used only for coaling or naval stations. Additionally, article III of the 1934 treaty provides that the Republic of Cuba leases Guantánamo Bay to the United States “for coaling and naval stations.” Nowhere in either treaty did Cuba give the United States the right to utilize Guantánamo Bay as a prison camp.”
  • Karen J. Greenberg. “8 Reasons to Close Guantnamo Now”. In These Times. February 12, 2007 – “#1 It is a legal no-man’s-land Guantánamo Bay Naval Base was established as a coaling and naval station under U.S. control in 1903. It has no civilian legal authority (you can’t get a marriage license there, and you can’t be arraigned) and U.S. military authority is limited. According to the Department of Justice, the prison is not indisputably U.S. territory, nor does it necessarily fall under the jurisdiction of any foreign entity.
According to the Church Report—an official investigation of Guantánamo prepared by Vice Admiral Albert T. Church III, a former navy inspector general for the Armed Services Committee—Guantánamo’s uncertain legal footing may have been a fundamental reason the administration decided to use the facility to interrogate al-Qaeda and Taliban fighters. “Perhaps most importantly,” the report states, “GTMO was considered a place where [other] benefits could be realized without the detainees having the opportunity to contest their detention in the U.S. courts.”
According to Northwestern University Professor Joseph Margulies, the administration’s legal position rests on “the remarkable claim that the prisoners have no rights because they are foreign nationals detained outside the sovereign territory of the United States.” In 2004, in Rasul v. Bush, the Supreme Court ruled that U.S. courts have jurisdiction in hearing habeas corpus petitions from Guantánamo. Yet through a series of laws and military rulings, the administration has continued to argue that the prisoners do not have the right to contest their detention in a U.S. court.”