Michael Parmly on Returning Guantanamo Base to Cuba
TheGuantánamoBayNavalBase: The United
This paper is based on a pipe dream. It deals with a
reality that nobody in a position of responsibility has seriouslyaddressed. It raises a matter in which
the status quo is locked,
certainly for the time being, in rigid U.S. Congressionallegislation. It takes up a
relationship between two countries—the UnitedStates and Cuba—that at this point can hardly be said to
exist at all. Onecanlegitimatelyaskthequestion:Whydiscussthematteratall?
The answer is simple:
Guantánamo Bay is back in the news. As a resultof a hunger strike by as
many as one hundred of the 166 detainees fromthe anti-terrorist efforts of the last decade who are—held
in the variouscamps scattered
around the naval base, hardly a day goes by without anarticle in the New York Times or another major media outlet reporting orcommentingonthedetainees,theirjailers,orthejudicialprocessesthatfornow have keptthe 166 onCuban soil.1
Michael Eleazar Parmly (F’76 M.A., F’77
MALD) is a retired U.S. ForeignServiceOfficerresidingwithhiswife,Marie-CatherineneeSchutte(F’76MALD)inSwitzerland.Mr.ParmlyservedasChiefofMission,U.S.InterestsSection,in
Havana, Cuba (2005-2008) and in senior positions in Bosnia, Afghanistan,France, Romania, Morocco, and at the
U.S. Mission to the European Union inBrussels.
Earlier, while pursuing his Fletcher degrees, Mr. Parmly anticipated hisdiplomatic service working in the
office of Ambassador Ellsworth Bunker, negotiatingthePanamaCanaltreaties.
ThebreadthofthemovementfocusingonthedetaineesatGuantánamoBayhasincludedUNHighCommissionerforHumanRights Navi Pillay and International
Committee of the Red Cross (ICRC)PresidentPeterMaurer,aswellasalmosteverymajorhumanrightsNGOin the
world. Maurer, newly elected this year to head the ICRC, made oneof his first trips to Washington.
There, Maurer met with, among others,President
Obama, Secretary of Defense Hagel, and, in a first for an ICRChead,
Congressional leaders, all with the purpose of discussing the detaineesat Guantánamo.2
And whether or not the renewed world
attention was the reason,Obamahimselftookupthecauseagaininthespringof2013,returningto a subject which had marked the beginning of his
presidency in January2009.InanApril30,2013pressconferencedevotedalmostentirelytothe Syrian
conflict, the President went out of his way to comment—“emotionally,”asperonejournalist;almostcertainlyextemporaneouslyinanycase—onthestatusofthedetainees.ThePresidentstated,“Itiscriticalfor us to understand that Guantánamo is not necessary to
keep Americasafe. It is expensive. It is inefficient. It
hurts us in terms of our internationalstanding.Itlessenscooperationwithouralliesoncounterterrorismefforts.Itisarecruitmenttoolforextremists.Itneedstobeclosed.”3
More extensively, President Obama
dedicated a major portion of aMay23speechatTheNationalDefenseUniversity(NDU)tothesubject.Indeed, the New York Times editorial commenting
on Obama’s remarkscalled it “the
most important statement on counterterrorism policy sincethe9/11attacks,”and“aturningpointinpost-9/11America.”4InhisMay23 speech, Obama
returned to previous themes, but in stronger terms,saying that, “[Guantánamo] has become a symbol around the
world thatAmericafloutstheruleoflaw.”5 Obamalamentedthefactthat,“Duringa time of budget
cuts, we spend $150 million each year to imprison 166people—almost $1 million per prisoner.
And the Department of Defenseestimatesthatwemustspendanother$200milliontokeepGTMO(Guantánamo) open.”6Specifically addressing the status of the detainees,Obamaoutlined sixspecific
1.“...callonCongresstolifttherestrictionsondetaineetransfersfromGTMO. . .I have asked the Department
of Defense to designate asitewhere wecan holdmilitary
2.“. . .appointing a new senior envoy at (Departments
of State andDefense) whose sole
responsibility will be to achieve the transfer ofdetainees to third countries;
6.“Andwe will insist that judicial review be available for every
Theproblemisthatinonepublicsettingoranother,PresidentObamahas voiced those sentiments in the
past—perhaps never in such an envi-ronment,
perhaps never as comprehensively, perhaps never with as muchdetermination.ClearlythefateofthehungerstrikerswasafactorweighingonObama’smindandconscience,impellinghimtoaction,buthewasalsoconscious of the fact that he has
been stymied to date by partisan squab-blingintheUnitedStates.Iknowthepoliticsarehard,”thePresidentsaidinhisNDUspeech.“Buthistorywillcastaharshjudgmentonthisaspectofourfightagainstterrorism,andthoseofuswhofailtoendit.”8
Yet in all the recent discussion and
commentary, only rarely is thediscretefactoid—thatthedetaineesarebeingheldonsoilthatisultimatelysubject to Cuban
sovereignty—ever even brought up. President ObamaalludedtothefactinhisMay23remarks,buthewaspayingattentionto Guantánamo primarily because of
the detainees. The renewed atten-tion
to their fate at Guantánamo Bay, especially in light of the widespreadhungerstrike,isunderstandable:people’slivesmaybeatstake.Thatatten-tion is also a
distraction, and President Obama may be missing a keypoint.Atitscore,thequestionisnothowtheUnitedStatesistreatingthe 166 detainees. The central issue
is why the U.S. government feels itcan
behave exactly as it wishes, on soil that has repeatedly—by legislativeas well as judicial branches of the
United States—been affirmed as Cubanterritory.9SupremeCourtdecisionsoverthepastdecadehaveemphasizedthat the U.S.
government cannot treat individuals differently just becausetheyarelocatedinGuantánamo.Nonetheless,U.S.administrations—bothRepublican
and Democratic—continue to behave as if Guantánamo wereina separate universe.
To review the basic
facts on the status of Guantánamo: on its surface,theissueappearsfairlycutanddry.TheUnitedStateshasbeeninstalledat Guantánamo Bay since 1898, and has had so-called treaty
rights to thesoil since 1903,
under an accord signed with the then-Cuban governmentof President Tomás Estrada Palma.10 That accord, reached under dubiouscircumstancesintheearlyyearsofthetwentiethcentury,wasthenrevisedin
theearlyyearsofthepresidencyofFranklinD.Roosevelt.11Withthearrivalof Fidel Castro to power in 1959, the new Cuban regime made
clear itstotaldisagreementwiththeAmericanpresenceinGuantánamo.12However,Cuban leaders from Fidel on down have emphasized, from 1959 to thepresent day, that they would not seek
to recuperate the forty-five-squaremileterritorybyforce.TheUnitedStatesisthereuntilitdecidestoleave.
The fact is that the United States should
not be in GuantánamoBay—at least
not in its current profile. Even leaving aside the unevencircumstances of the genesis of the
base relationship, the current treaty,dating
from 1934, leaves practically all initiative to stay or to go with theUnitedStates.Thetreatyhasnoterminationclause.Itstandsasisuntilthetwo sides—but really
just the United States—agree(s) to modify its terms.There is no other agreement governing a U.S. military
presence on suchlopsided terms
anywhere else in the world. At the same time, the UnitedStates lacks even normal diplomatic
relations with Cuba, and the bilateralrelationship
is among the most acrimonious that Washington maintainswithanycountryanywhere.Sowhy,onemightlegitimatelyask,wouldanyU.S.governmentwanttomodifysuchfavorableterms?Morerecently,in late July 2013, Cuba again popped up in the news,
seeking to shipmissiles for
repair and upkeep . . . to North Korea! One may fairly askwhy the United States should make a
deal with Cuba, especially when itdoesn’thaveto.Andbacktotheproposedrevisionofthebase’sstatus,isitat all possible to
make such a modification while still protecting what areperceivedasvitalnationalinterests?Thispaperdealswiththosetwoques-tions.
Theissueathandismorethanthestatusof166detainees.Thefunda-mental matter is the U.S. Naval Base at Guantánamo
Bay, Cuba, and thatbase’srelationshipwiththegovernmentandthepeopleofCuba.Whatisthebaseusedfor?GuantánamoBaywasdevelopedintheearlyyearsofthelastcenturyasanavalandacoalingstationforU.S.warshipsandtoprotectaccesstothesoon-to-be-builttrans-isthmuscanal.Inthe110yearsthattheUnitedStateshasoccupiedtheforty-fivesquaremilesofbaseland,itsmissionhasevolvedsignificantly.MostAmericans—andmuchoftheworld’spopulation—primarily associate Guantánamo today
with the holding of the detainees fromtheanti-terroristeffort.Mostareprobablyunawarethatthebasedoesanythingmore than that, even though at least
two other missions, assuring a U.S. navalpresenceintheCaribbean,andprocessingmigrantrefugees,arguablyareatleastasimportant—ifnotaspoliticallytopical—asthefirst.
It is important, however, to discuss Guantánamo
Bay at this timebecausethestatusquoisahistoricalanomaly.Thereasonforthepersistenceof
the status quo is clear: U.S.-Cuban animosity prevents even conversation
fromtakingplaceontheissue.Thecoreissue,quitefrankly,ispolitical.However,those politics are evolving. Determined opposition to any
rapprochementbetween the two countries is shifting in the
United States. Cuba’s leadership,while
still under a Castro, is very different with Raul than when Fidel ran thecountry.Indeed,asthispaperwilldemonstrate,Raulexpressedsympathy,on the record, in January 2002 for the U.S. military’s
mission of guardingdetaineesaccusedofterrorisminGuantánamo.
The United States retains key interests
in its ability to continue tooperateoutofGuantánamoBay,andthepresenceoftheGWOTdetaineesisthemostprominent—orcertainlymosthighprofile—ofthem.ThatwilllikelyremainthecaseevenaftertheUnitedStatesreturnscontroloverthebase to Cuba. Because make no mistake
about it: that return will happen,sooner
or later. The aim of this paper is to explore whether and how U.S.interestscanbereconciledwithCubanoperationalsovereigntyandoverallcontrolof thebase.
President Obama, in a January 2, 2013, statement
attached to hissignature of the
2013 Defense Authorization Act, reiterated his desire toclosethedetaineefacilitiesattheGuantánamoBayNavalBase.13Hisearlierefforts to do so, so publicly
proclaimed on his second day on the job in2009, had over his first term run into overwhelming opposition,
However, despite public perceptions to
the contrary, and PresidentObama’s most recent statements notwithstanding,
the issue of GuantánamoBay
is about much more than detainee facilities and prisoners from theglobal effort to combat terrorism. The
history of the Naval Base, with itscomplex
relations with the Cuban state on the soil of which the base sits,goesfarbeyondthequestionofthedetainees.GuantánamoBayNavalBaseis not U.S.
territory. Cuba is the ultimate owner. That means that if wewanttobetrulydemocraticaboutthequestion,theownersaretheCubanpeople.Yettheyhaveneverbeenaskedtheiropinion.
Thereisanother,fairlyrecentchapterofU.S.legislativehistory,datingfromthelastdecadeofthetwentiethcentury,whichspecificallyaddressesthe status of the base. The Cuban Liberty and Democratic
Solidarity Actof 1996, better
known as the Helms-Burton Act,15is regularly decried bytheCubanGovernmentasblatantAmericaninterferenceinCubanaffairs.Atthesametime,thatpieceoflegislationacknowledgesthattheUnited
under mutually agreeable terms.”16
AlthoughFidelCastroandhisbrotherRaul—whonowgovernsthe island—have declared that the
U.S. possession of Guantánamo Bay isillegal,
awareness of Cuba’s limited capacity to enforce a claim to the basehas been repeatedly stated since
Fidel Castro took power on January 1,1959.
Both Castros have affirmed that Cuba will not use force to recoupthe territory. (There was at least one
attempt to pressure the U.S. intoleaving,
during the Cuban Missile Crisis, when on October 28, 1962, anangry
Fidel insisted—as one of his ‘conditions’ for ‘accepting’ the Kennedy-Khrushchev Agreement—that “U.S.
troops must be withdrawn from theGuantánamoNavalBase,andthatpartofCubanterritoryoccupiedbytheUnitedStatesmustbereturned.”17Theworld’sreliefatanagreementbeingreached on the missiles themselves
caused the Cuban’s conditions to beoverlooked,
and the status quohas prevailed ever since.)
However,leavingasidethehistoryandthepoliticsoftheGuantánamoissue aside for just a moment, it is useful to examine the
logic of the U.S.presenceatGuantánamo Bay.
1.TheUnitedStatesNavysoughtcoalingstationstoserviceitsrapidlyexpanding fleet, and Guantánamo Bay
was a prime piece of realestate,sittingastrideoneofthemainthoroughfaresintheCaribbean.
2.Strategic American thinkers in the late nineteenth
and first years ofthe twentieth
century already were looking toward building a trans-isthmuscanalinCentralAmerica,andweredeterminedtohavenavalbasesintheregiontohelpprotectsuchavitalfacility.
3.TheUnitedStates,inthepost-CivilWarera,showedincreasingself-confidence in world affairs. As part
of that evolving mindset, theregrew
a feeling, especially among naval strategists, that the UnitedStates needed amilitary presencein
1898, the war to expel the Spanish colonial forces, took charge ofGuantánamoBay,and therest ishistory.
ships on coal, and the Panama Canal is no longer
American, as it wasreturned to
Panama in the late 1970’s by then-President Carter. Of thethree original strategic reasons for
U.S. possession of the Guantánamobase,theonlyonethatremainsrelevanttodayisthethird—thatofassuringapermanentpresenceintheregion—andthatrationalehasevolvedsignifi-cantly.ThemainmissionsofabaseinthemiddleoftheCaribbeanarenowmuchmore focused andtask-oriented.
in the Anti-terrorist Effort: Since
late 2001, in thewakeoftheSeptember11attacksandtheU.S.militaryoperationsin Afghanistan which followed in
October-December of that year,Guantánamo
has been the chosen spot of the U.S. Department ofDefense for housing and for attempting to conduct judicial
proce-duresagainst(someof)thedetaineesheldintheanti-terroristeffort.As ofJuly 2013,thereremain 166detainees.
2.AttemptedMigrants:SincethemigrationcrisesinCubaandtheninHaiti starting in the
early 1980s, Guantánamo Bay—and specificallythe Migration Operation Center (MOC), established at the
NavalBase in 2002—has served as
the intermediate point for processingCuban
and Haitian refugees picked up on the high seas by the U.S.Coast Guard. While the refugee
population on the base has risen ashighas45,000(in1994)andwhilethemaximumcapacityofrefugeeprocessing
estimated by the U.S. military is 60,000, in recent yearstherehaverarelybeenmorethanthirtytofortyindividualsawaiting
3. A Permanent Naval Presence: Then-Combatant Commander forthe U.S. Southern Command, General
Douglas Fraser, stated onMarch
6, 2012, in Congressional testimony, “(E)ven absent a deten-tion facility and even following the
eventual demise of the Castroregime,”itisimportantthattheU.S.maintainaphysicalpresencein the region.18Inter alia, the rapidly expanding Chinese presence—presently commercial, but also
featuring a growing a diplomatic andstrategic
component—in the Caribbean region presents U.S. strate-gists with a particularly salient
imperative with regards to the U.S.presencein Guantánamo.
problem with that approach. As mentioned above, the soil on whichthebasesitsisnotAmerican.Atthispoint,abrieftripbackthroughhistoryis required.
The U.S. military helped Cuban insurgents
defeat Spanish colonialforces in
1898, and as a result the twentieth century began with a signifi-cant American military presence
remaining on the island. As conditionsontheislandstabilized,theMcKinleyandRooseveltadministrationsproved
willing to contemplate the removal of U.S. troops, but only withfulfillment of certain firm
conditions. Those conditions included, princi-pally, the insertion of the so-called Platt Amendment into
the body of theCuban
Constitution, giving the United States oversight on Cuban govern-ment actions, especially but not
exclusively in the foreign policy area, thataffected U.S. national interests. Also included in the
Platt Amendment, asArticleVII,was thefollowingprovision:
of Cuba will sell or lease to the United States landsnecessary
for coaling or naval stations, at certain specific points, to beagreeduponwiththePresidentoftheUnitedStates.”19
It would be hard to argue that Cuba
arrived freely at acceptance ofthe
presence of a U.S. military base on Cuban soil.20Cuba’s
struggle forindependence began
in 1868, and led to three separate wars with Spain,eachonebloodyanddestructive,beforeindigenousCubanforces,withthehelpofU.S.forcesin1898,wereabletothrowouttheSpanishcolonialists.TheUnitedStatesonlyarrivedinthefinalmonthsofthethirdwar.
The issue of the Platt Amendment and its
related base agreementfollowed.Intheend,ittookthreedifferentvotesoftheCubanConstituentAssemblyin1901toobtainapprovalofthePlattAmendmentanditsArticleVII, and, even then, the final vote was anything but
overwhelming. ThePlatt Amendment
passed in the Assembly by a vote of sixteen to eleven.According to one historian, nine of
the eleven negative votes came fromeastern
Cuba, the region where the Guantánamo Bay Naval Base wouldbelocated.21CubanswerenevercomfortablewiththeideaofanAmericanbase on their island.
For the first three decades of Cuban
independence, there wererepeatedattemptsbyCubanpoliticiansanddiplomatstore-opentheques-tion,notjustofthePlattAmendment,butofthenavalbasespecifically.In1934, the newly-elected American
President, Franklin D. Roosevelt, waswillingtooverseetheremovalofthePlattAmendmentfromtheCuban
Constitution. The one provision which remained, and
which still prevails,is that
which entitles the United States to preserve its naval base on theisland.ThereasonsforCuba’sacceptanceofthecontinuedpresenceof
base are veiled in history, and it isevenhardtofindarecordofconcerted
U.S.pressuretobeallowedtostay.Oneexplanation was the willingness of thethen-Cuban leader, Fulgencio Batista,tolettheUnitedStateskeepitsbase,inexchangeformajorU.S.concessionsregardingU.S.importsofsugar,Cuba’sexportstaple.
Why, the reader might ask, doesthishistorymatter?Theanswerissimple:themostcommonnarrativeintheUnited States today is that the UnitedStates
cannot return Guantánamo to theCastros.YetoppositionamongCubanstothepresenceoftheGuantánamoBayNaval Base long predates the arrival
ofFidel Castro to power in
1959. Indeed,oppositiontothebaseismuchstrongerthan his rhetoric or mere communistpropaganda;itisintimatelyrelatedto
Yet opposition amongCubans to the presence oftheGuantánamoBayNaval
Baselongpredatesthearrivalof Fidel Castro to power in1959.Indeed,opposition
to the base is much strongerthan
his rhetoric or merecommunist
propaganda; it isintimately
related to Cubannationalism, to
Cubanidentity, to Cuban
self-image,to the present-day
Numerous writers and historians have written at
length about theextentofCubannationalismacrossthedecadesandindeed,centuries.Themost
in-depth studies of this phenomenon are by Louis A. Perez of theUniversity of North Carolina. Among
Perez’ most extensive analyses ofCubannationalismishisclassic,OnBecomingCuban.Identity,Nationalityand Culture.22 Other
contemporary writers who have addressed the subjectinclude Rafael Rojas23and Jorge Duany.24
These and other scholars explain that
Cuban nationalism—and therootsofCubanidentity—firstformedinthenineteenthcentury,primarilyinoppositiontoSpanishcolonialrule,especiallyitsever-harshermanifesta-tions.Duanywrites,“TheCubanpeoplehadacquiredauniquespiritorsoul,
acodeofmoralvirtueswhosepreservationrequiredestablishingasovereignstate.”However—andthisiswheretheimpactontheGuantánamoissueismost salient—Duany goes on to note that, “Cuban independence in 1902began inauspiciously for many
intellectuals who had fought for nationalsovereignty.OneofCuba’sforemostliterarycritics,CintioVitier,maintained:‘Wearevictimsofthemostsubtlecorrupting(U.S.)influenceintheWesternworld.’”25AstheUnitedStatesgraduallyreplacedSpainandbecomeomni-presentinlifeontheisland—inhistoryandpolitics;economicsandfinance;agriculture,commerceandindustry;andsocietyandculture—Cubanscametodefinethemselves,positivelyandnegatively,vis-à-vistheUnitedStates.
The resultant outcome was not alwaysfelicitous.
TherearenumerousCubanfigures,especiallyinthenineteenthcentury, who argued for a solid—andseparate—Cubanidentity,firstvis-à-vis the Spanish
colonial rulers, butalsoovertimeinrelationtotheUnitedStates. Felix Varela and Jose Marti arebut two prominent Cubans who evenbeforetheideaofaU.S.baseonCubansoilwasenvisioned,arguedforkeepinga
respectable distance from Cuba’s hugeneighbortothenorth.26Thosetwo,often referred to as Founding Fathersof Cuba, would almost certainly haveopposedthepresenceofaU.S.militarybaseon Cuban soil.
monopolize Cuban polit-ical
thought have instead given way toan
incipient rebirth of a more wide-spreadandpopular-basedprideofall
Cubans in determining their ownfuture.Pro-Americanattitudesonthe
have instead given way to anincipient
rebirth of a morewidespread and
popular-based pride of all
Cubans indeterminingtheirownfuture.Pro-Americanattitudesontheisland today are widespread;anti-Americanism
currency. And yetcuriously, it
is the long-standingandoverwhelming
U.S.proximity,especiallyinthe minds of Cubans, thatincites
a reaction, includingamongthoseopposedtothe
especially in the minds of Cubans, that incites a reaction, includingamong those opposed to the current
regime. Writing about an earlier era,butexercisinganalyticaltoolsthatremainrelevanttoday,PerezwritesinOn
Cuban, “The power of U.S. hegemony
was embedded in culturalforms
that served as the principal means by which the North Americanpresence was legitimized. It just
happened that these forms also served asthe means by which North American influences were contested. It wasperhaps,intheend,ameasureofthevitalityoftheNorthAmericanstruc-tures and the creative power of
adaptation that these were often the basisonwhichCubanschosetochallengetheUnitedStates.”27
Admittedly,theeffortsofFidelCastrooverthepastfivedecadesto capture the
nationalist rhetoric in Cuba’s history have met with somesuccess, especially outside of Cuba,
but also on the island, and morepowerfully
in the early years of the Castro revolution than as time hasmoved on. However, as Fidel’s star has
faded in recent years, the powerof
Cuban nationalism has persisted. Indeed, some would argue that thesentiment has even strengthened.
Rafael Rojas’ recent work, La MaquinadelOlvido,28arguesagainstFidel’smonopolizationofthenationalistideal,andrecentevidencegivespowertothatnarrative.Emblematicfiguressuchas the recently-deceased activist Oswaldo Paya and former political
pris-oner Oscar Espinoza Chepe
have not only written their critical analysesfrom the island, but they have also insisted that the
perspective from theisland—as
opposed to from overseas—is the most truly Cuban, the mostauthentic. Renowned blogger Yoani
Sanchez and her husband ReinaldoEscobar
lived overseas but chose to return to Cuba, largely to engage intheefforttodemocratizeCuba.Ofthe59politicalprisonersreleasedfromjail in 2011 as a result of the
intervention of Cardinal Jaime Ortega, adozen, including the most prominent dissidents, eschewed the CubanGovernment’s
pressure to go into exile and instead insisted on remaining inCuba.Whatevertheviewtowardsthecurrentgovernment,thereremainsapride in being
Cuban. And whosoever claims “Cuban pride” also makes acase for Guantánamo Bay returning to
‘civilist’, and am a person who wants to see the law respected, thus Icannotbeinagreementwith(theexistenceof)aplacethatdoesnotrespectthe law.”29 Technically, Sanchez is wrong, since the 1934
important stakes in maintaining a physical presence
in Guantánamo Bay.There is an
implicit acknowledgement—in the 1996 Helms-Burton legis-lation if nowhere else—that the land
must be returned to Cuba sooner orlater.Moreoverandequallyimportantly,althoughdiplomaticeffortsfromoutside Cuba
to pressure the United States to return the base have beensparse, Latin Americannationalist sentimentdemands itsreturn.
Of the two stakeholders, Cuba has a
simpler aim: it wants its landback.
Given the virtually non-existent state of bilateral relations, at firstglanceitappearsthatthetwosidesaregoingnowhere,andthustheUnitedStates, as the one
holding the cards, gets to keep what it has. Facing thecurrent situation, theU.S. governmenthas twooptions:
1.Maintain the status
quo. After all, that tactic has worked since atleast 1959, if not in fact since 1903. The philosophy of “if
it ain’tbroke, don’t fix it” could serve U.S. purposes for the indefinite
current fragile state of the Cuban economy is likely torestrainanyadventurousengagementonthepartofHavanatorecu-peratethebase.ThefrigidstateofU.S.-CubanrelationswouldmakeaninitiativecomingfromWashingtonhighlyunusual.Ifnothingelse,Cuba’s
continued imprisonment of USAID contractor Alan Gross,servingafifteenyearsentenceforcrimesagainsttheCubanstateandnot due to be released until 2024,
makes any such rapprochementbetweenthetwocapitalsanon-starter,atleastfornow.
2.Seek to accommodate the American
presence in Guantánamo Bay tothe evolving reality of the Cuban populace, and plan
for the future.The current
frozen state of U.S. relations with Cuba will not lastindefinitely. At the beginning of
President Obama’s second term,there
have already been initiatives and proposals, admittedly fromoutside the Administration but from
elements with close ties to theWhiteHouse,pressingforimprovedrelations.TherehaveevenbeenhintsofapossiblepardonbyRaulCastroofAlanGross,whichcouldproduceabreakinthebilaterallogjam.AninitiativeonGuantánamoBay—oneforeseeninthe1996Helms-Burtonlegislation—wouldbeonemethodtorespondtosuchahypotheticalgesturebyRaul.
States concluded with the Republic of Panama a treaty—actually
a seriesof Accords—returning to
Panama the entire Canal Zone, including theCanal itself.
There is much to recommend the Panama
Canal Treaties as anexamplefor dealing with GuantánamoBay.
1.In the process of negotiating the Panama Canal Treaties,
2.The United States then received back from Panama,
“for the dura-tionofthistreaty,therightsnecessarytoregulatethetransitofshipsthroughthePanamaCanal,andtomanage,operate,maintain,improve,protect anddefend theCanal.”
3.The core treaty states that “the
Republic of Panama guarantees to (theUnited States) the peaceful use of land and water
areas which it hasbeengranted
the rightto use for suchpurposes” pursuant tothe treaty.
5.Finally, “In view of the special
relationship established by this Treaty,”theUnitedStatesandPanama“shallcooperatetoassuretheuninter-ruptedandefficientoperationofthePanamaCanal.”30
Acriticalaspectofthe1977PanamaCanalTreatieswasitsneutralityprovisions.Specifically,theCarter-TorrijosAgreementsincludeanentirelyseparate treaty devoted exclusively
to the issue of the neutrality of thewaterway.InthatadjunctAgreement,ArticleIdeclaresthattheCanalwillbe“permanentlyneutral.”ArticleIIaddsthattheCanal’sneutralitywouldbe maintained “both in time of peace and in time of war” and that
theCanal “shall remain secure
and open to peaceful transit by vessels of allnations on terms of entire equality.” Article III goes so
far as to state that“1.(e)VesselsofwarandauxiliaryvesselsofallnationsshallatalltimesbeentitledtotransittheCanal,irrespectiveoftheirinternaloperation,meansof propulsion, origin, destination or
armament, without being subjected,asaconditionoftransit,toinspection,searchorsurveillance.”31
The Panama Canal treaties were, however,
made by possible by thealtogetherstrongertiesbetweentheUnitedStatesandPanama.Thesetwo countries, after all, have
enjoyed long and stable diplomatic relationsfor over one hundred years—whereas the United States and
Cuba havenot had diplomatic
relations since January 1961. Even at times of bilat-eraltension,theUnitedStatesandPanamaenjoyedfulldiplomaticties.
TheUnitedStatesandCubaarerepresentedonlyby“InterestSections”in the capital of the other, and that arrangement has only
prevailed since1977 when Jimmy
Carter entered the White House, determined to try toimprove bilateral ties. Panama was virtually created by the
United StatesforthespecificpurposeofbuildingaCanalacrosstheisthmusofPanama.Cuba was also
emerging into independence at that same time, but its citi-zenshadamuchmorerichtradition,deeperandmoreextensiveroots,and
However, in both thePresidencies of Jimmy Carterand Barack Obama, respectfor the sentiments of othercountries
and peoples hasbeen a hallmark.
It was aconsciousdecisionoftheU.S.governmenttohandbackthePanama
Canal, stretchingacross two Administrations,RepublicanandDemocrat.
Thecurrentpartisantensionson the Hill ensure that itwould
be an uphill climb,but it is the
thesis of thispaper that a
similar boldstep, akin to the Panama Canal,iscalledforregardingGuantánamo.
amuchclearersenseofthemselvesasacountry and a people.
Finally, lest oneforget, whereas
the Panama Canal is atrulyinternationalwaterwaythroughwhich pass the ships of many nationson earth, Guantánamo Bay is merely aport with two small adjoining
airstrips.PanamahasavitalinterestintheCanalstayingopen,interalia,tomaximizeits collection of toll income from
shipspassing through the
waterway. Cubahas no such
incentive with respect toGuantánamoBay.
It thus stands to reason that innegotiatingthe1977PanamaCanalTreaties,
both sides showed consider-able
understanding of the constraintson
the other side. The United Statesworked
very hard to maintain the bestpossiblerelationswithPanama,buttheGovernmentofPanamaaswellactedinrecognitionoftheimpor-tance it attached to maintaining theseties.Panamawasfullyconsciousoftheimportance of keeping the Canal, sovitaltoworldcommerce,opentoall