Jonathan M. Hansen: The U.S. Is Sovereign at Guantanamo

Jonathan M. Hansen, author of The Lost Promise of Patriotism: Debating American Identity, 1890-1920, is writing a book about the history of Guantánamo Bay; in the NYT (April 20, 2004):

... The history of how the United States came to possess Guantánamo Bay illuminates a question in the Supreme Court case to be argued today about whether American courts have jurisdiction over challenges to the detention of hundreds of foreign nationals there: who is sovereign at Guantánamo Bay, the United States or Cuba? If the Supreme Court rules that Cuba is sovereign, the detainees will have no recourse in United States courts.

The legal arguments in the case involve technical distinctions between sovereignty, jurisdiction and control. The historical record is plainer: Cuba has never been sovereign at Guantánamo Bay. Not only was Guantánamo Spanish territory when the United States seized it in 1898, but the ensuing lease between Cuba and the United States formalizing American occupation was completed amid a climate of coercion. To understand that coercion, it is necessary to return to a moment more than a century ago when the United States intervened in the Cuban war of independence against Spain.

The American forces that first occupied Guantánamo in June 1898 were late arrivals in a colonial struggle already three years old. The American victory over Spain was all but assured by then thanks to the skill and determination of the Cuban revolutionaries.

But history is written by the victors, and by midsummer 1898 the Cubans' role in the Spanish defeat was already being written off. Cuba's war of independence had become a mere"insurrection," its leaders notorious for their lawlessness and caprice. The Spanish-American diplomacy that concluded the war formalized the disregard: neither the armistice of August 1898 nor the Treaty of Paris signed that December allowed for any Cuban participation. The year 1898 drew to a close with the American flag fluttering over Havana and Guantánamo Bay firmly in the grip of a United States military government.

Congress had pledged America to Cuban independence, which raised the problem of how to secure United States political and economic interests in Cuba after the provisional American government departed. Congress resolved this problem in 1901 by passing the Platt Amendment, which curtailed Cuba's right to conduct its own foreign and fiscal policy, granted America the right to intervene at will in Cuban affairs, and compelled Cuba to"sell or lease to the United States lands necessary for coaling or naval stations at certain specified points, to be agreed upon by the president of the United States."

In the face of American pressure and despite the mounting opposition of Cuban citizens, the Cuban Constitutional Convention ratified the Platt Amendment in June 1901. Thus the American occupation of Guantánamo received Cuba's official sanction.

Subsequent treaties in 1903 and 1934 between the United States and Cuba confirmed American supremacy at Guantánamo. But the insistence in these documents of Cuba's"ultimate sovereignty" over the bay did not change the facts on the ground. Moreover, a clause in the 1934 treaty requires both signatories to agree to any termination of the lease....