Tuesday, June 8, 2021

Michael Parmly on Returning Guantanamo Base to Cuba

 


 

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The Guantánamo Bay Naval Base: The United States and Cuba—Dealing with

A Historic Anomaly

Michael Parmly

 

This paper is based on a pipe dream. It deals with a political (inter- national) reality that nobody in a position of responsibility has seriously addressed. It raises a matter in which the status quo is locked, seemingly permanently but certainly for the time being, in rigid U.S. Congressional legislation. It takes up a relationship between two countries—the United States and Cuba—that at this point can hardly be said to exist at all. One can legitimately ask the question: Why discuss the matter at all?

The answer is simple: Guantánamo Bay is back in the news. As a result of a hunger strike by as many as one hundred of the 166 detainees from the anti-terrorist efforts of the last decade who are—held in the various camps scattered around the naval base, hardly a day goes by without an article in the New York Times or another major media outlet reporting or commenting on the detainees, their jailers, or the judicial processes that for now have kept the 166 on Cuban soil.1

 

Michael Eleazar Parmly (F’76 M.A., F’77 MALD) is a retired U.S. Foreign Service Officer residing with his wife, Marie-Catherine nee Schutte (F’76 MALD) in Switzerland. Mr. Parmly served as Chief of Mission, U.S. Interests Section, 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 in Brussels. Earlier, while pursuing his Fletcher degrees, Mr. Parmly anticipated his diplomatic service working in the office of Ambassador Ellsworth Bunker, negotiating the Panama Canal treaties.

 

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The breadth of the movement focusing on the detainees at Guantánamo Bay has included UN High Commissioner for Human Rights Navi Pillay and International Committee of the Red Cross (ICRC) President Peter Maurer, as well as almost every major human rights NGO in the world. Maurer, newly elected this year to head the ICRC, made one of his first trips to Washington. There, Maurer met with, among others, President Obama, Secretary of Defense Hagel, and, in a first for an ICRC head, Congressional leaders, all with the purpose of discussing the detainees at Guantánamo.2

And whether or not the renewed world attention was the reason, Obama himself took up the cause again in the spring of 2013, returning to a subject which had marked the beginning of his presidency in January 2009. In an April 30, 2013 press conference devoted almost entirely to the Syrian conflict, the President went out of his way to comment— “emotionally,” as per one journalist; almost certainly extemporaneously in any case—on the status of the detainees. The President stated, “It is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”3

More extensively, President Obama dedicated a major portion of a May 23 speech at The National Defense University (NDU) to the subject. Indeed, the New York Times editorial commenting on Obama’s remarks called it “the most important statement on counterterrorism policy since the 9/11 attacks,” and “a turning point in post-9/11 America.”4 In his May 23 speech, Obama returned to previous themes, but in stronger terms, saying that, “[Guantánamo] has become a symbol around the world that America flouts the rule of law.”Obama lamented the fact that, “During a time of budget cuts, we spend $150 million each year to imprison 166 people—almost $1 million per prisoner. And the Department of Defense estimates that we must spend another $200 million to keep GTMO (Guantánamo) open.”6 Specifically addressing the status of the detainees, Obama outlined six specific steps:

1.  “. . .call on Congress to lift the restrictions on detainee transfers from GTMO. . .I have asked the Department of Defense to designate a site where we can hold military commissions;”

2.  “. . .appointing a new senior envoy at (Departments of State and Defense) whose sole responsibility will be to achieve the transfer of detainees to third countries;

 

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3.  “. . .lifting the moratorium on detainee transfers to Yemen, so that we can review them on a case-by-case basis;

4.  “. . .to the extent possible, we will transfer detainees who have been cleared to go to other countries;

5.  “where appropriate, we will bring terrorists to justice in our courts and military justice system;

6.  “And we will insist that judicial review be available for every detainee.”7

The problem is that in one public setting or another, President Obama has voiced those sentiments in the past—perhaps never in such an envi- ronment, perhaps never as comprehensively, perhaps never with as much determination. Clearly the fate of the hunger strikers was a factor weighing on Obama’s mind and conscience, impelling him to action, but he was also conscious of the fact that he has been stymied to date by partisan squab- bling in the United States. I know the politics are hard,” the President said in his NDU speech. “But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it.”8

Yet in all the recent discussion and commentary, only rarely is the discrete factoid—that the detainees are being held on soil that is ultimately subject to Cuban sovereignty—ever even brought up. President Obama alluded to the fact in his May 23 remarks, but he was paying attention to Guantánamo primarily because of the detainees. The renewed atten- tion to their fate at Guantánamo Bay, especially in light of the widespread hunger strike, is understandable: people’s lives may be at stake. That atten- tion is also a distraction, and President Obama may be missing a key point. At its core, the question is not how the United States is treating the 166 detainees. The central issue is why the U.S. government feels it can behave exactly as it wishes, on soil that has repeatedly—by legislative as well as judicial branches of the United States—been affirmed as Cuban territory.9 Supreme Court decisions over the past decade have emphasized that the U.S. government cannot treat individuals differently just because they are located in Guantánamo. Nonetheless, U.S. administrations—both Republican and Democratic—continue to behave as if Guantánamo were in a separate universe.

To review the basic facts on the status of Guantánamo: on its surface, the issue appears fairly cut and dry. The United States has been installed at Guantánamo Bay since 1898, and has had so-called treaty rights to the soil since 1903, under an accord signed with the then-Cuban government of President Tomás Estrada Palma.10 That accord, reached under dubious circumstances in the early years of the twentieth century, was then revised in

 

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the early years of the presidency of Franklin D. Roosevelt.11 With the arrival of Fidel Castro to power in 1959, the new Cuban regime made clear its total disagreement with the American presence in Guantánamo.12 However, Cuban leaders from Fidel on down have emphasized, from 1959 to the present day, that they would not seek to recuperate the forty-five-square mile territory by force. The United States is there until it decides to leave.

The fact is that the United States should not be in Guantánamo Bay—at least not in its current profile. Even leaving aside the uneven circumstances of the genesis of the base relationship, the current treaty, dating from 1934, leaves practically all initiative to stay or to go with the United States. The treaty has no termination clause. It stands as is until the two 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 such lopsided terms anywhere else in the world. At the same time, the United States lacks even normal diplomatic relations with Cuba, and the bilateral relationship is among the most acrimonious that Washington maintains with any country anywhere. So why, one might legitimately ask, would any U.S. government want to modify such favorable terms? More recently, in late July 2013, Cuba again popped up in the news, seeking to ship missiles for repair and upkeep . . . to North Korea! One may fairly ask why the United States should make a deal with Cuba, especially when it doesn’t have to. And back to the proposed revision of the base’s status, is it at all possible to make such a modification while still protecting what are perceived as vital national interests? This paper deals with those two ques- tions.

The issue at hand is more than the status of 166 detainees. The funda- mental matter is the U.S. Naval Base at Guantánamo Bay, Cuba, and that base’s relationship with the government and the people of Cuba. What is the base used for? Guantánamo Bay was developed in the early years of the last century as a naval and a coaling station for U.S. warships and to protect access to the soon-to-be-built trans-isthmus canal. In the 110 years that the United States has occupied the forty-five square miles of base land, its mission has evolved significantly. Most Americans—and much of the world’s population— primarily associate Guantánamo today with the holding of the detainees from the anti-terrorist effort. Most are probably unaware that the base does anything more than that, even though at least two other missions, assuring a U.S. naval presence in the Caribbean, and processing migrant refugees, arguably are at least as important—if not as politically topical—as the first.

It is important, however, to discuss Guantánamo Bay at this time because the status quo is a historical anomaly. The reason for the persistence of

 

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the status quo is clear: U.S.-Cuban animosity prevents even conversation from taking place on the issue. The core issue, quite frankly, is political. However, those politics are evolving. Determined opposition to any rapprochement between 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 the country. Indeed, as this paper will demonstrate, Raul expressed sympathy, on the record, in January 2002 for the U.S. military’s mission of guarding detainees accused of terrorism in Guantánamo.

The United States retains key interests in its ability to continue to operate out of Guantánamo Bay, and the presence of the GWOT detainees is the most prominent—or certainly most high profile—of them. That will likely remain the case even after the United States returns control over the base 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. interests can be reconciled with Cuban operational sovereignty and overall control of the base.

 

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THE ISSUE OF THE STATUS AND POSSIBLE RETURN OF THE BASE

 

President Obama, in a January 2, 2013, statement attached to his signature of the 2013 Defense Authorization Act, reiterated his desire to close the detainee facilities at the Guantánamo Bay Naval Base.13 His earlier efforts to do so, so publicly proclaimed on his second day on the job in 2009, had over his first term run into overwhelming opposition, primarily in both houses of Congress, but also within his own White House staff.14

However, despite public perceptions to the contrary, and President Obama’s most recent statements notwithstanding, the issue of Guantánamo Bay is about much more than detainee facilities and prisoners from the global effort to combat terrorism. The history of the Naval Base, with its complex relations with the Cuban state on the soil of which the base sits, goes far beyond the question of the detainees. Guantánamo Bay Naval Base is not U.S. territory. Cuba is the ultimate owner. That means that if we want to be truly democratic about the question, the owners are the Cuban people. Yet they have never been asked their opinion.

There is another, fairly recent chapter of U.S. legislative history, dating from the last decade of the twentieth century, which specifically addresses the status of the base. The Cuban Liberty and Democratic Solidarity Act of 1996, better known as the Helms-Burton Act,15 is regularly decried by the Cuban Government as blatant American interference in Cuban affairs. At the same time, that piece of legislation acknowledges that the United

 

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States “should be prepared to enter into negotiations with a democratically elected government in Cuba either to return (the base) to Cuba or to rene- gotiate the agreement under mutually agreeable terms.”16

Although Fidel Castro and his brother Raul—who now governs the island—have declared that the U.S. possession of Guantánamo Bay is illegal, awareness of Cuba’s limited capacity to enforce a claim to the base has been repeatedly stated since Fidel Castro took power on January 1, 1959. Both Castros have affirmed that Cuba will not use force to recoup the territory. (There was at least one attempt to pressure the U.S. into leaving, during the Cuban Missile Crisis, when on October 28, 1962, an angry Fidel insisted—as one of his ‘conditions’ for ‘accepting’ the Kennedy- Khrushchev Agreement—that “U.S. troops must be withdrawn from the Guantánamo Naval Base, and that part of Cuban territory occupied by the United States must be returned.”17 The world’s relief at an agreement being reached on the missiles themselves caused the Cuban’s conditions to be overlooked, and the status quo has prevailed ever since.)

However, leaving aside the history and the politics of the Guantánamo issue aside for just a moment, it is useful to examine the logic of the U.S. presence at Guantánamo Bay.

 

THE MISSIONS FOR A NAVAL BASE AT GUANTÁNAMO

 

Beginning in the late nineteenth century, there were three fundamental reasons for the United States’ desire to establish a base at Guantánamo Bay.

1.  The United States Navy sought coaling stations to service its rapidly expanding fleet, and Guantánamo Bay was a prime piece of real estate, sitting astride one of the main thoroughfares in the Caribbean.

2.  Strategic American thinkers in the late nineteenth and first years of the twentieth century already were looking toward building a trans- isthmus canal in Central America, and were determined to have naval bases in the region to help protect such a vital facility.

3.  The United States, in the post-Civil War era, showed increasing self- confidence in world affairs. As part of that evolving mindset, there grew a feeling, especially among naval strategists, that the United States needed a military presence in the Caribbean.

The United States, wrapping up with the Cuban freedom fighters in 1898, the war to expel the Spanish colonial forces, took charge of Guantánamo Bay, and the rest is history.

History, however, tends to move on. The U.S. Navy no longer runs

 

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ships on coal, and the Panama Canal is no longer American, as it was returned to Panama in the late 1970’s by then-President Carter. Of the three original strategic reasons for U.S. possession of the Guantánamo base, the only one that remains relevant today is the third—that of assuring a permanent presence in the region—and that rationale has evolved signifi- cantly. The main missions of a base in the middle of the Caribbean are now much more focused and task-oriented.

1.  Detainees in the Anti-terrorist Effort: Since late 2001, in the wake of the September 11 attacks and the U.S. military operations in Afghanistan which followed in October-December of that year, Guantánamo has been the chosen spot of the U.S. Department of Defense for housing and for attempting to conduct judicial proce- dures against (some of) the detainees held in the anti-terrorist effort. As of July 2013, there remain 166 detainees.

2. Attempted Migrants: Since the migration crises in Cuba and then in Haiti starting in the early 1980s, Guantánamo Bay—and specifically the Migration Operation Center (MOC), established at the Naval Base in 2002—has served as the intermediate point for processing Cuban and Haitian refugees picked up on the high seas by the U.S. Coast Guard. While the refugee population on the base has risen as high as 45,000 (in 1994) and while the maximum capacity of refugee processing estimated by the U.S. military is 60,000, in recent years there have rarely been more than thirty to forty individuals awaiting

U.S. government decision on eventual refugee re-settlement.

3. A Permanent Naval Presence: Then-Combatant Commander for the U.S. Southern Command, General Douglas Fraser, stated on March 6, 2012, in Congressional testimony, “(E)ven absent a deten- tion facility and even following the eventual demise of the Castro regime,” it is important that the U.S. maintain a physical presence in the region.18 Inter alia, the rapidly expanding Chinese presence— presently commercial, but also featuring a growing a diplomatic and strategic component—in the Caribbean region presents U.S. strate- gists with a particularly salient imperative with regards to the U.S. presence in Guantánamo.

 

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THE PLATT AMENDMENT AND THE CUBAN CONSTITUTION

 

It is one thing for the United States to examine its own rationale(s) for maintaining Guantánamo Bay Naval Base. However, there is at least

 

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one problem with that approach. As mentioned above, the soil on which the base sits is not American. At this point, a brief trip back through history is required.

The U.S. military helped Cuban insurgents defeat Spanish colonial forces in 1898, and as a result the twentieth century began with a signifi- cant American military presence remaining on the island. As conditions on the island stabilized, the McKinley and Roosevelt administrations proved willing to contemplate the removal of U.S. troops, but only with fulfillment of certain firm conditions. Those conditions included, princi- pally, the insertion of the so-called Platt Amendment into the body of the Cuban Constitution, giving the United States oversight on Cuban govern- ment actions, especially but not exclusively in the foreign policy area, that affected U.S. national interests. Also included in the Platt Amendment, as Article VII, was the following provision:

“To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations, at certain specific points, to be agreed upon with the President of the United States.”19

It would be hard to argue that Cuba arrived freely at acceptance of the presence of a U.S. military base on Cuban soil.20 Cuba’s struggle for independence began in 1868, and led to three separate wars with Spain, each one bloody and destructive, before indigenous Cuban forces, with the help of U.S. forces in 1898, were able to throw out the Spanish colonialists. The United States only arrived in the final months of the third war.

The issue of the Platt Amendment and its related base agreement followed. In the end, it took three different votes of the Cuban Constituent Assembly in 1901 to obtain approval of the Platt Amendment and its Article VII, and, even then, the final vote was anything but overwhelming. The Platt Amendment passed in the Assembly by a vote of sixteen to eleven. According to one historian, nine of the eleven negative votes came from eastern Cuba, the region where the Guantánamo Bay Naval Base would be located.21 Cubans were never comfortable with the idea of an American base on their island.

For the first three decades of Cuban independence, there were repeated attempts by Cuban politicians and diplomats to re-open the ques- tion, not just of the Platt Amendment, but of the naval base specifically. In 1934, the newly-elected American President, Franklin D. Roosevelt, was willing to oversee the removal of the Platt Amendment from the Cuban

 

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Constitution. The one provision which remained, and which still prevails, is that which entitles the United States to preserve its naval base on the island. The reasons for Cuba’s acceptance of the continued presence of

 

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the base are veiled in history, and it is even hard to find a record of concerted

U.S. pressure to be allowed to stay. One explanation was the willingness of the then-Cuban leader, Fulgencio Batista, to let the United States keep its base, in exchange for major U.S. concessions regarding U.S. imports of sugar, Cuba’s export staple.

Why, the reader might ask, does this history matter? The answer is simple: the most common narrative in the United States today is that the United States cannot return Guantánamo to the Castros. Yet opposition among Cubans to the presence of the Guantánamo Bay Naval Base long predates the arrival of Fidel Castro to power in 1959. Indeed, opposition to the base is much stronger than his rhetoric or mere communist propaganda; it is intimately related to

 

                                                

 

Yet opposition among Cubans to the presence of the Guantánamo Bay Naval

Base long predates the arrival of Fidel Castro to power in 1959. Indeed, opposition

to the base is much stronger than his rhetoric or mere communist propaganda; it is intimately related to Cuban nationalism, to Cuban identity, to Cuban self-image, to the present-day Cuba and, most importantly, the Cuba of tomorrow.

 

Cuban nationalism, to Cuban identity, to Cuban self-image, to the present- day Cuba and, most importantly, the Cuba of tomorrow.

 

CUBAN NATIONALISM: A LONG-STANDING SAGA

 

Numerous writers and historians have written at length about the extent of Cuban nationalism across the decades and indeed, centuries. The most in-depth studies of this phenomenon are by Louis A. Perez of the University of North Carolina. Among Perez’ most extensive analyses of Cuban nationalism is his classic, On Becoming Cuban. Identity, Nationality and Culture.22 Other contemporary writers who have addressed the subject include Rafael Rojas23 and Jorge Duany.24

These and other scholars explain that Cuban nationalism—and the roots of Cuban identity—first formed in the nineteenth century, primarily in opposition to Spanish colonial rule, especially its ever-harsher manifesta- tions. Duany writes, “The Cuban people had acquired a unique spirit or soul,

 

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a code of moral virtues whose preservation required establishing a sovereign state.” However—and this is where the impact on the Guantánamo issue is most salient—Duany goes on to note that, “Cuban independence in 1902 began inauspiciously for many intellectuals who had fought for national sovereignty. One of Cuba’s foremost literary critics, Cintio Vitier, maintained: ‘We are victims of the most subtle corrupting (U.S.) influence in the Western world.’”25 As the United States gradually replaced Spain and become omni- present in life on the island—in history and politics; economics and finance; agriculture, commerce and industry; and society and culture—Cubans came to define themselves, positively and negatively, vis-à-vis the United States.

 

                                                

 

The resultant outcome was not always felicitous.

There are numerous Cuban figures, especially in the nineteenth century, who argued for a solid—and separate—Cuban identity, first vis- à-vis the Spanish colonial rulers, but also over time in relation to the United States. Felix Varela and Jose Marti are but two prominent Cubans who even before the idea of a U.S. base on Cuban soil was envisioned, argued for keeping a respectable distance from Cuba’s huge neighbor to the north.26 Those two, often referred to as Founding Fathers of Cuba, would almost certainly have opposed the presence of a U.S. military base on Cuban soil.

More contemporaneously, Fidel’s attempts to monopolize Cuban polit- ical thought have instead given way to an incipient rebirth of a more wide- spread and popular-based pride of all Cubans in determining their own future. Pro-American attitudes on the

 

Fidel’s attempts to monopolize Cuban political thought

have instead given way to an incipient rebirth of a more widespread and popular- based pride of all Cubans in determining their own future. Pro-American attitudes on the island today are widespread; anti-Americanism has fairly limited currency. And yet curiously, it is the long- standing and overwhelming

U.S. proximity, especially in the minds of Cubans, that incites a reaction, including among those opposed to the

current regime.

                                                

 

island today are widespread; anti-Americanism has fairly limited currency. And yet curiously, it is the long-standing and overwhelming U.S. prox-

 

imity, especially in the minds of Cubans, that incites a reaction, including among those opposed to the current regime. Writing about an earlier era, but exercising analytical tools that remain relevant today, Perez writes in On

 

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Becoming Cuban, “The power of U.S. hegemony was embedded in cultural forms that served as the principal means by which the North American presence was legitimized. It just happened that these forms also served as the means by which North American influences were contested. It was perhaps, in the end, a measure of the vitality of the North American struc- tures and the creative power of adaptation that these were often the basis on which Cubans chose to challenge the United States.”27

Admittedly, the efforts of Fidel Castro over the past five decades to capture the nationalist rhetoric in Cuba’s history have met with some success, especially outside of Cuba, but also on the island, and more powerfully in the early years of the Castro revolution than as time has moved on. However, as Fidel’s star has faded in recent years, the power of Cuban nationalism has persisted. Indeed, some would argue that the sentiment has even strengthened. Rafael Rojas’ recent work, La Maquina del Olvido,28 argues against Fidel’s monopolization of the nationalist ideal, and recent evidence gives power to that narrative. Emblematic figures such as the recently-deceased activist Oswaldo Paya and former political pris- oner Oscar Espinoza Chepe have not only written their critical analyses from the island, but they have also insisted that the perspective from the island—as opposed to from overseas—is the most truly Cuban, the most authentic. Renowned blogger Yoani Sanchez and her husband Reinaldo Escobar lived overseas but chose to return to Cuba, largely to engage in the effort to democratize Cuba. Of the 59 political prisoners released from jail in 2011 as a result of the intervention of Cardinal Jaime Ortega, a dozen, including the most prominent dissidents, eschewed the Cuban Government’s pressure to go into exile and instead insisted on remaining in Cuba. Whatever the view towards the current government, there remains a pride in being Cuban. And whosoever claims “Cuban pride” also makes a case for Guantánamo Bay returning to Cuba.

The sentiment is perhaps best incarnated by Yoani Sanchez, who stated on at least one occasion on her recent world tour that “On Guantánamo, I am a ‘civilist’, and am a person who wants to see the law respected, thus I cannot be in agreement with (the existence of) a place that does not respect the law.”29 Technically, Sanchez is wrong, since the 1934 agreement gives the base a legal cover. Her point, nonetheless, is well-taken.

 

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GETTING PAST ZERO-SUM

 

The challenge going forward is to get past a zero-sum situation. That is where things stand at present. The U.S. government sees itself with

 

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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 or later. Moreover and equally importantly, although diplomatic efforts from outside Cuba to pressure the United States to return the base have been sparse, Latin American nationalist sentiment demands its return.

Of the two stakeholders, Cuba has a simpler aim: it wants its land back. Given the virtually non-existent state of bilateral relations, at first glance it appears that the two sides are going nowhere, and thus the United States, as the one holding the cards, gets to keep what it has. Facing the current situation, the U.S. government has two options:

1.   Maintain the status quo. After all, that tactic has worked since at least 1959, if not in fact since 1903. The philosophy of “if it ain’t broke, don’t fix it” could serve U.S. purposes for the indefinite future. Certainly the current fragile state of the Cuban economy is likely to restrain any adventurous engagement on the part of Havana to recu- perate the base. The frigid state of U.S.-Cuban relations would make an initiative coming from Washington highly unusual. If nothing else, Cuba’s continued imprisonment of USAID contractor Alan Gross, serving a fifteen year sentence for crimes against the Cuban state and not due to be released until 2024, makes any such rapprochement between the two capitals a non-starter, at least for now.

2.  Seek to accommodate the American presence in Guantánamo Bay to the evolving reality of the Cuban populace, and plan for the future. The current frozen state of U.S. relations with Cuba will not last indefinitely. At the beginning of President Obama’s second term, there have already been initiatives and proposals, admittedly from outside the Administration but from elements with close ties to the White House, pressing for improved relations. There have even been hints of a possible pardon by Raul Castro of Alan Gross, which could produce a break in the bilateral logjam. An initiative on Guantánamo Bay—one foreseen in the 1996 Helms-Burton legislation—would be one method to respond to such a hypothetical gesture by Raul.

 

THE PANAMA CANAL TREATIES AS A PRECEDENT FOR GUANTÁNAMO BAY

 

Lest the idea of a negotiated return of the Guantánamo Base be seen as a scarcely achievable scenario, it is important to recall that there is a firm precedent for this action in recent American history. In 1977, the United

 

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States concluded with the Republic of Panama a treaty—actually a series of Accords—returning to Panama the entire Canal Zone, including the Canal itself.

There is much to recommend the Panama Canal Treaties as an example for dealing with Guantánamo Bay.

1.  In the process of negotiating the Panama Canal Treaties, the United States first formally and explicitly recognized Panama as the “territo- rial sovereign.”

2.  The United States then received back from Panama, “for the dura- tion of this treaty, the rights necessary to regulate the transit of ships through the Panama Canal, and to manage, operate, maintain, improve, protect and defend the Canal.”

3.  The core treaty states that “the Republic of Panama guarantees to (the United States) the peaceful use of land and water areas which it has been granted the right to use for such purposes” pursuant to the treaty.

4.  The treaty foresees that Panama “shall participate increasingly in the management and protection and defense of the Canal.”

5.  Finally, “In view of the special relationship established by this Treaty,” the United States and Panama “shall cooperate to assure the uninter- rupted and efficient operation of the Panama Canal.”30

A critical aspect of the 1977 Panama Canal Treaties was its neutrality provisions. Specifically, the Carter-Torrijos Agreements include an entirely separate treaty devoted exclusively to the issue of the neutrality of the waterway. In that adjunct Agreement, Article I declares that the Canal will be “permanently neutral.” Article II adds that the Canal’s neutrality would be maintained “both in time of peace and in time of war” and that the Canal “shall remain secure and open to peaceful transit by vessels of all nations on terms of entire equality.” Article III goes so far as to state that “1.(e) Vessels of war and auxiliary vessels of all nations shall at all times be entitled to transit the Canal, irrespective of their internal operation, means of propulsion, origin, destination or armament, without being subjected, as a condition of transit, to inspection, search or surveillance.”31

The Panama Canal treaties were, however, made by possible by the altogether stronger ties between the United States and Panama. These two countries, after all, have enjoyed long and stable diplomatic relations for over one hundred years—whereas the United States and Cuba have not had diplomatic relations since January 1961. Even at times of bilat- eral tension, the United States and Panama enjoyed full diplomatic ties.

 

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The United States and Cuba are represented only by “Interest Sections” in the capital of the other, and that arrangement has only prevailed since 1977 when Jimmy Carter entered the White House, determined to try to improve bilateral ties. Panama was virtually created by the United States for the specific purpose of building a Canal across the isthmus of Panama. Cuba was also emerging into independence at that same time, but its citi- zens had a much more rich tradition, deeper and more extensive roots, and

 

                                                

 

However, in both the Presidencies of Jimmy Carter and Barack Obama, respect for the sentiments of other countries and peoples has been a hallmark. It was a conscious decision of the U.S. government to hand back the Panama Canal, stretching across two Administrations, Republican and Democrat.

The current partisan tensions on the Hill ensure that it would be an uphill climb, but it is the thesis of this paper that a similar bold step, akin to the Panama Canal, is called for regarding Guantánamo.

                                                

 

a much clearer sense of themselves as a country and a people. Finally, lest one forget, whereas the Panama Canal is a truly international waterway through which pass the ships of many nations on earth, Guantánamo Bay is merely a port with two small adjoining airstrips. Panama has a vital interest in the Canal staying open, inter alia, to maximize its collection of toll income from ships passing through the waterway. Cuba has no such incentive with respect to Guantánamo Bay.

It thus stands to reason that in negotiating the 1977 Panama Canal Treaties, both sides showed consider- able understanding of the constraints on the other side. The United States worked very hard to maintain the best possible relations with Panama, but the Government of Panama as well acted in recognition of the impor- tance it attached to maintaining these ties. Panama was fully conscious of the importance of keeping the Canal, so vital to world commerce, open to all

 

nations and functioning. It thus had a concrete incentive to seek satisfac- tory solutions to problems which arose in the negotiations.