Caribbean Mayberry: Why The U.S. Can Stay In Guantánamo Forever – Real Cheap

Jan 9, 2017

Among its demands for normalized relations, Cuba wants the U.S. to leave its naval station at Guantánamo Bay on the island’s southeastern tip. But the lease Cuba signed more than a century ago lets the U.S. stay there forever if it wants to.

Even so, when Donald Trump becomes President next week he’ll face questions about the legality of the base at Guantánamo, known as “Gitmo” – especially its controversial terrorist prison.

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University of Miami law professor Christina Frohock has published “Small Town GTMO: The Layers of Estate, Sovereignty and Soil in U.S. Naval Station Guantánamo Bay.” The book examines the unusual Guantánamo contract – and what if anything Cuba can do about it. WLRN’s Tim Padgett spoke with Frohock about this hemispheric hotspot.

Here are some excerpts of the conversation: 

As a legal scholar, why the personal interest in Guantánamo?

It started several years ago. I learned about this strange use of Guantánamo to detain not terrorists but pre-9/11 Cuban refugees. From a constitutional perspective it was just a very strange thing to be happening. This U.S. naval base holding Cubans who wanted to come to the United States – trying to get through the court systems, with claims of due process. And then that law review article turned into a career focus.

Cuba has “ultimate sovereignty” over Guantánamo, but the U.S. has “complete jurisdiction and control.” That sounds like a contradiction. But you argue the U.S.’s perpetual Gitmo lease meets all the legal tests. What are the most important?

U.S. law recognizes that two entities – in this case two countries – can be property holders over the exact same area. Cuba’s [Guantánamo] property rights are just dormant. And they’re waiting for us to either change our lease terms or to just abandon the site. The [U.S.] Supreme Court has said that’s just fine – even though it’s a very strange circumstance.

This has been a thorn in Cuba's side for a long time now. But from a U.S. common law perspective it's perfectly legal – even though it's a very strange circumstance. –Christina Frohock

But you spend a lot of time in the book referring to common law questions about the legality. Rules of perpetuity and things like that.

That’s exactly right. This has been a thorn in Cuba’s side for a long time now. But from a U.S. common law perspective it’s perfectly legal – even going back to ancient political philosophy notions of sovereignty.

This lease was the product of the U.S.’s quasi-occupation of Cuba after the Spanish-American War of 1898. Is there any other place in the world where the U.S. enjoys a deal like this – especially one where we pay less than $5,000 rent a year, which the Cuban government always sends back in protest?

Certainly not that I know of. And I think one of the reasons is that this is the oldest overseas base that the United States has. And so in some sense it was a historical experiment from 1903. Over the years, I think we’ve learned some things.

And the world’s landlords have learned a few things too, then?

Yes, I don’t think any country will be in Cuba’s position any time soon.

But you don’t think Donald Trump has any intention of closing the base. In fact, you don’t think the U.S. will ever leave. Why?

No, I certainly don’t this he does. But regardless of whoever is in the White House, it is useful for the United States to have that Caribbean port.

BAD DUDES

Cuba could take its Guantánamo case to a U.S. federal court, or an international court like the Hague. But why is it not likely to ever do that?

Certainly not the U.S. courts, because Cuba would have to accede to the jurisdiction of the U.S. courts, which I doubt it ever would. The international court – the problem is the United States could decline jurisdiction. So there would have to be consent from both countries, which just isn’t going to happen.

Trump is telling President Obama to stop releasing Gitmo detainees. Does that reinforce your belief that Trump will keep the naval base’s post-9/11 prison open there, despite the charges of torture and other abuses leveled at it?

He said that he wants to load it up with bad dudes. He has said in another statement that he wants to send U.S. citizens there. [If he does], he will face instant constitutional challenges.

You’ve gotten to know Gitmo pretty well in recent years. All the legal claims aside, what impresses you most about it as a place?

What I notice about Guantánamo is that it’s a small American town – down on the island of Cuba, on the southeastern tip of a communist country. No one speaks Spanish in Gitmo; everyone’s speaking English. It is disorienting to be there. You know, to be standing on Main Street, a Norman Rockwell America – but there’s a terrorist prison three miles down. This is Mayberry with a Caribbean breeze.