Grappling with Gitmo

By: Wayne S. Smith
June 26, 2005
The Atlanta Journal-Constitution

Many prominent Americans, both Democrats and Republicans, are urging that the U.S. detention center at Guantanamo be closed. Their argument is that given the many reports of detainees being abused there, Guantanamo has come to be seen internationally as a symbol of U.S. disregard for human rights and for the Geneva Conventions. And so, to get rid of the harmful symbol, we should close it.

They are right. The administration's denials that any abuses have occurred have lost all credibility. But there is another compelling reason to close the prison at Guantanamo: its existence flagrantly violates the treaty that gives us the right to be there in the first place. Both the lease agreement signed in 1903 and the treaty of May 29, 1934, which confirmed it, specifically state that the leased area can only be used "as a coaling and naval station, and for no other purpose."

The coaling operation --- refueling of U.S. ships --- long ago became obsolete, and one must wonder whether the United States any longer has need of naval facilities there. But that aside, it has no legal right at all to operate a detention center at Guantanamo. The Bush administration may place little value on international law, but the treaty is subject to that law, which says the violation of a treaty by one party is grounds to terminate the treaty entirely.

As international law specialist Robert Muse pointed out recently at a conference in Washington, Cuba would be within its rights if it took the whole issue to the United Nations General Assembly and called for a resolution to send the matter to the International Court of Justice, which might well demand that the United States withdraw from the base. The Bush administration would doubtless give not the slightest heed to such a ruling from the ICJ, which would further sully our image internationally, something we most definitely do not need.

The Cuban government did not at first object to a detention center at Guantanamo. In the wake of the Sept. 11 attacks, it condemned the attack and all manifestations of terrorism, offered to cooperate with all nations in the struggle against terrorism, and even offered to sign bilateral agreements with the United States covering such cooperation. The Bush administration ignored all these overtures. It was within this context, nonetheless, that the Cubans initially did not protest the establishment of the detention center.

But as the months and years passed and the Cubans, along with the rest of the world, became aware of what was happening in that center, their attitude changed. This past Jan. 19, they delivered a diplomatic note to the United States protesting the abuses on Cuban soil and noting that the United States was now occupying Guantanamo in open violation of the treaty.

The administration's rationale for sending the prisoners to Guantanamo in the first place was that it was beyond the reach of U.S. law and therefore that prisoners could be held there indefinitely and virtually without rights --- without being charged, seeing lawyers or even told why they were being held.

But U.S. courts have ruled against that and insist that Guantanamo is not beyond the reach of U.S. law. The detainees, they say, do have rights. The administration can be expected to appeal and fight this every inch of the way, but the original rationale for holding prisoners at Guantanamo is collapsing.

Surely it would be better to be ahead of the curve, transfer them elsewhere and close the detention center at Guantanamo for good. And make certain that conditions at the new centers are above reproach, with regular visits by the International Red Cross and other appropriate international agencies to make certain that is the case.

It would be a new ball game. We would again be in compliance with the treaty, and the ugly and destructive symbol that Guantanamo has become would be removed. There is a way out if the administration would but take it.

THE FACTS ABOUT GUANTANAMO
> History: Guantanamo Bay Naval Base, built beginning in 1904, is the oldest U.S. military base off of American soil.
> How many: About 520 people are believed to be detained at Guantanamo, many of them for more than three years.
> Legal status: Few have been charged or seen a lawyer. The Supreme Court ruled last year that the detainees had the right to challenge their detentions in federal court.

Wayne S. Smith, a senior fellow at the Center for International Policy in Washington, is the former chief of the U.S. Interests Section in Havana.