President Trump’s Unsound Action Regarding the U.S. Prison at Guantanamo Bay, Cuba    

On January 30, just before leaving the White House for his State of the Union Address at the Capitol, President Donald Trump signed an executive order regarding the U.S. prison at Guantánamo Bay, Cuba.

The Guantanamo Bay Executive Order[1]

The Executive Order entitled “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists” started with these Findings:

  • “Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict” and that since 9/11 the U.S. “remains engaged in an armed conflict with al-Qa’ida, the Taliban, and associated forces, including the Islamic State of Iraq and Syria.” (Section 1(a), (b).)
  • “The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.” (Section 1(c ).) “Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.” (Section 1(d).)

The Order than addressed the Status of Detention Facilities at U.S. Naval Station Guantánamo Bay. After revoking President Obama’s January 22, 2009, executive order ordering the closure of those facilities (Section 2(a)),  it stated, “Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” (Section 2 (b), (c))

The Order also directed certain government officials to “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.” (Section 2 (d).)

There, however, were modest concessions to the plight of the detainees and other interests. It states, the detainees “shall [be] subject to the [previously established] procedures for periodic review . . . to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States” (Section 2(e)); the order shall not “prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate, including to effectuate an order affecting the disposition of that individual issued by a court or competent tribunal of the United States having lawful jurisdiction” (Section 3(a); the order shall not “affect existing law or authorities relating to the detention of United States citizens, lawful permanent residents of the United States, or any persons who are captured or arrested in the United States” (Section 3(b); and the order shall not “prevent the Attorney General from, as appropriate, investigating, detaining, and prosecuting a terrorist subject to the criminal laws and jurisdiction of the United States” (Section 3 (c ).

The State of the Union Address[2]

The President announced that he had “just signed an order directing Secretary Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantánamo Bay. I am also asking the Congress to ensure that, in the fight against ISIS and al-Qa’ida, we continue to have all necessary power to detain terrorists — wherever we chase them down.”

He also said, “My Administration has also imposed tough sanctions on the communist and socialist dictatorships in Cuba and Venezuela.”

Reactions

Roger Cohen, a New York Times columnist, said the prison at Guantanamo Bay “is widely viewed around the world as a facility incompatible with the American principles of fair trial, human rights and the rule of law.” Moreover, this decision “will be seen by many as a signal of an American return to the excesses of the war on terror — the use of torture, extraordinary renditions and C.I.A ‘black sites.’”[3]

Admiral Dennis Blair, the former Director of National Intelligence, said Cohen, once testified to Congress that the “detention center at Guantánamo has become a damaging symbol to the world and that it must be closed. It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security.”

The Center for Constitutional Rights (CCR) stated, “Trump’s planned executive order is not the last word on the fate of Guantánamo, any more than his attempted Muslim bans and arbitrary transgender military ban—struck down by the courts—were the last word on those matters. CCR has filed a new legal challenge to the illegality and racism driving Trump’s Guantánamo policy and demanding detainees’ release. It is the courts, not the authoritarian-in-chief, that will ultimately determine the fate of the men detained at Guantánamo.”[4]

The just mentioned CCR action on behalf of 11 Guantánamo detainees was filed on January 11, 2018, in the U.S. District Court for the District of Columbia. It alleges that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.”  This move was supported by Muslim, Faith-Based and Civil Rights Community Organizations.[5] On January 18, the court ordered the federal government to provide information about its Guantánamo policy.[6]

The New York Times in an editorial supported this challenge to the continued detention of individuals at the U.S. prison in Cuba. The editorial stated, “the men make a straightforward case for their release. The Supreme Court has ruled that prisoners at Guantánamo must have a “meaningful opportunity” to challenge the legal and factual grounds for their detention, which means that the federal courts have the power to review those claims and grant any appropriate relief. If the Constitution stands for anything, the plaintiffs argue . . ., it must stand for the proposition that the government cannot detain someone for 16 years without charge.”[7]

Conclusion

The U.S. prison at Guantánamo Bay has long been a major source of legitimate complaints against the U.S. and should be closed as soon as possible, not potentially expanded as this Executive Order would permit. In addition, this prison provides Cuba with its strongest argument that the U.S. has breached its 1905 lease of the site of the prison from Cuba.[8]

============================================

[1] White House, Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists (Jan. 30, 2018).

[2]   White House, President Donald J. Trump’s State of the Union Address (Jan. 30, 2018).

[3] Cohen, Trump’s Volk and Vaterland, N.Y. Times (Jan. 31, 2018).

 

[4] Center for Const’l Rts, Guantánamo Attorneys blast Trump “Keep Gitmo Open” Order (Jan. 30, 2018).

[5]  Brief of Amici Curiae Muslim, Faith-Based, and Civil Rights Community Organizations in Support of Petitioners’’ Motion for Order Granting Writ of Habeas Corpus, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C. Jan. 22,  2018).

[6] Center Const’l Rts, Court Orders Government to Clarify Guantánamo Policy, Attorneys React (Jan. 18, 2018); Order, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C.J an. 18, 2018).

[7] Editorial, Donald Trump vs. Guantánamo’s Forever Prisoners, N.Y. Times (Jan. 16, 2018).

[8]  See these posts to dwkcommentaries.com: Resolution of Issues Regarding Cuba Lease of Guantánamo Bay (April 4, 2015); Resolution of U.S. and Cuba’s Damage Claims  (April 6, 2016); Does Cuba Have the Right To Terminate the U.S. Lease of Guantánamo Bay? (April 26, 2015)

 

Published by

dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

3 thoughts on “President Trump’s Unsound Action Regarding the U.S. Prison at Guantanamo Bay, Cuba    ”

  1. Former Cuban Prisoner Condemns U.S.’ Cuba Internet Task Force

    U.S. citizen Alan Gross was imprisoned for five years in Cuba for trying to establish clandestine communication service on the island, but was released and returned to the U.S. on December 17, 2014, as part of the U.S.-Cuba agreement to pursue normalization of relations.

    On February 1, 2018, Gross criticized the newly announced U.S. creation of the Cuba Internet Task Force with the stated aim of improving the island’s Internet access. He said, “”We are supposed to learn from our mistakes. I learned the hard way that it’s illegal to distribute anything in Cuba that’s funded in full or part by the U.S. government. Until the government of Cuba wants the kind of assistance United States is capable of providing, the United States shouldn’t be doing stuff there.”

    Gross added that while he was in prison Cuba vastly expanded internet access and that the U.S. government should have direct discussions with the Cuban government on whether add how the U.S. could assist Cuba on these issues.

    Many previous posts to this blog have discussed Gross’ actions in Cuba; his lawsuit against his employer for these actions as a contractor for the U.S. Agency for International Development (USAID); his arrest, conviction and sentencing in Cuba; and his release and return to the U.S.

    Reuters, Ex-Cuba Prisoner Gross Criticizes U.S. Plan to Foster Internet on Island, N.Y. Times (Feb. 4, 2018), https://www.nytimes.com/reuters/2018/02/04/world/americas/04reuters-cuba-usa-internet-gross.html

    1. How to Close the Base

      Eviction via eminent domain

      1. Does someone have the power of eminent domain over Guantanamo?

      Yes, there was no agreement to suspend eminent domain over the period of the lease, so someone has that power.

      2. Is it Cuba or is it the United States that has that power?

      Cuba has it.

      The lease mentions eminent domain in the January agreement, as follows, in Article III:

      a> While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water,

      b> on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas

      c> with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

      The lease (in a>) recognizes that Cuba has ultimate sovereignty. It does not say who has penultimate sovereignty, or what that might mean. Sovereignty has always been associated with the right of eminent domain, which is associated with the eminence of the sovereign, his eminence.

      It all belongs to his eminence. His realm.

      The lease (in c>) deals with property within the leased area that is in private hands. It says that the US may acquire it by purchase or by the exercise of eminent domain, under conditions to be hereafter agreed upon by the two governments.

      These conditions are specified in the July agreement, in Article I:

      All private lands and other real property within said areas shall be acquired forthwith by the Republic of Cuba.

      The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said Agreement.

      So rather than having the United States both own and lease land in Cuba, Cuba will acquire the land, by eminent domain if necessary, and the United States will advance rental payments if needed to expedite the transfer of tile to Cuba, and perfect the lease of Guantanamo.

      So after the signing of the lease for Guantanamo, Cuba had the right of eminent domain as against any plots in private hands within the leased area. Did they then lose the right of eminent domain against those areas?

      If so, what was the mechanism?

      The United States does not have the right of eminent domain, so Cuba must still have it.

      Exercise it.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s