Jonathan P. Baird

Once again, the detention facility at Guantanamo has reemerged as a partisan issue. President Obama wants to fulfill his 2008 campaign pledge and close Guantanamo. Republicans remain opposed and desire a continuation of the prison camp. They do not want those held at Guantanamo transferred to maximum security prisons in the United States.

The opponents of Guantanamo closure raise the spectre of Isis or Al Qaeda attacks on supermax prisons in the United States where the terrorist prisoners might be held.

The problem with this narrative is how much is left out. Focusing on Guantanamo as a Democratic versus Republican debate misses the historical context of the place as well as deeper related issues.

A deeper perspective needs to look at how the United States gained possession of territory that is part of another country. The story of how Guantanamo became an American possession deserves attention.

It is a story that is a throwback to an earlier era of great power colonialism and gunboat diplomacy. In that era, great powers competed to carve up the Third World and its resources, including the Caribbean and Latin America. Going back to the Monroe Doctrine, the United States, like all the other major colonial empires, had an interest in promoting and protecting its business interests overseas. Part of the effort was the establishment of military bases to advance the American empire.

Guantanamo, the oldest existing American naval base outside the United States, is an expression of our own imperialism. While I expect it would be politically unpopular to say so, a just result would be returning Guantanamo to Cuba. Guantanamo is, quite obviously, part of Cuba. As relations warm between Cuba and the United States, I fully expect some future American administration will return the base. Guantanamo is an unneeded imperialist relic.

The United States gained control of Guantanamo in 1898 when Cubans rose up against the Spanish who then controlled Cuba. Siding with the Cubans, the United States, after vanquishing the Spanish, forced Cuba to accept the Platt Amendment into its constitution. The Platt Amendment granted the United States the right to intervene freely in Cuban affairs, including access to naval bases. The marines would land in Cuba in 1906, 1912, 1917 and 1920 to exercise those rights.

The Cubans were adamantly opposed to the Platt Amendment. For those looking to understand some of the historical reasons for the Cuban revolution, I would look at how the Platt Amendment humiliated Cuba. The Cubans rightly feared the amendment would turn them into a vassal people.

The United States essentially delivered an ultimatum to the Cubans: incorporate the Platt Amendment into your constitution or we will not withdraw our troops on the island. In spite of this affront to their sovereignty, the Cubans reluctantly bowed to the greater power in 1901.

In 1903, the United States made a further agreement with Cuba which gave the U.S. 45 square miles of land and water for the naval base that was to become Guantanamo. Under the deal, the United States was to pay Cuba rent of $2000 a year. There was no time limit specified.

In 1934, President Franklin Roosevelt made the lease permanent. Guantanamo was leased for both coaling and naval purposes. The United States later upped the amount it paid for the lease to $4085 a month.

To protest the base, the Cuban government has refused to cash these less-than-munificent lease checks sent by the United States government as payment for Guantanamo.

Before the War on Terror, Guantanamo was not exactly a center of attention. In the early 1990’s, President George H.W. Bush decided to use Guantanamo Bay as a place to shelter Haitian refugees but really Guantanamo did not serve much purpose. It does have a deep water port and a decent airstrip but it is less important in a world of nuclear submarines, aircraft carriers and drones.

The War on Terror did, however, give Guantanamo a new purpose. After the prison was built in 2002, it became what Amnesty International has called “the gulag of our time”. It became a sort of behavioral science lab to test out psychological torture techniques on the international detainees imprisoned there.

Guantanamo transformed into a legal black hole. Being outside the sovereign territory of the U.S., the George W. Bush Administration believed that fact of geography would remove all legal protections of both American and international law. The Bush-Cheney-Rumsfeld team played out some dark fantasy of omnipotence. For many detainees, the terms “innocent” and “guilty” became passe. They reside in a Kafkaesque hell. Those who think I am exaggerating might want to check out Guantanamo Diary by Mohamedou Ould Slahi.

I do not see the current debate as fundamentally about where to place the terrorist prisoners: Guantanamo or the U.S.. That may be an immediate practical problem but for lawyers and civil libertarians, the deeper question is how we end indefinite detention without trial. As the international lawyer Philippe Sands has written, such practices violate the most fundamental principle of the English common law and all civilized legal systems. The right to habeas corpus is the cornerstone of the rule of law. Those who are held deserve, at minimum, a trial and due process.

Demagogues will scream and push the fear factor. They will assert we would possibly be releasing people they have characterized as “the worst of the worst”. They will point to examples of released terrorists who returned to the battlefield. There are such cases. But the truth is so much more nuanced.

I am reminded of the famous quote from John Adams:

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crime are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, whether I do good or whether I do evil is immaterial, for innocence itself is no protection, and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

While there once were as many as 700 people held at Guantanamo, there are now 91. A military task force of 2000 troops now watches this relatively small group. Considering just the numbers, closing Guantanamo hardly seems like it should be a big deal. We already hold a number of convicted terrorists in the United States. Our judicial and prison system is more than competent to address the small number of remaining Guantanamo prisoners, whatever the result of judicial process.

It is estimated that 40 to 50 of the remaining prisoners are hardened Al Qaeda members. Some cannot be charged because there is insufficient evidence against them or what there is has been tainted by their treatment in custody. These are the most problematic prisoners.

In the case of 34 detainees, mostly from Yemen, it has already been determined that they can be released without a security risk. However, it has been determined they cannot be returned to Yemen. A place must be found for these detainees.

One wild card that needs to be mentioned: according to a study by Seton Hall Law School, 86% of the detainees were arrested by non-American forces who were, essentially, bounty hunters. These detainees were arrested by Afghan and Pakistani mercenaries eager for the $5000 bounty on each capture. Leaflets dropped across Afghanistan had invited people to inform intelligence services to get the big prize. It is impossible to know whether some of the detainees are simply innocent victims of greedy bounty hunters.

A rational look at the Guantanamo detainees presents a vastly different view than the hysterical fantasies spun by those opposed to Guantanamo closure. In saying that, I do not minimize the threat posed by isis or Al Qaeda. It is just that a close look at Guantanamo defies what might be expected.

I would suggest that the abuse of detainees at Guantanamo and elsewhere has tremendously hurt America’s cause in the War on Terror. It is contrary to the rule of law and America’s best values. Somehow the cost of that abuse has not registered with the American public. The abuse endangers American service members and it is a useful recruiting tool for our adversaries.

The wise and late historian Chalmers Johnson once wrote a book entitled The Sorrows of Empire. Guantanamo is one of those sorrows.