The Supreme Court Ends the Other Tyranny on Cuban Soil

The United States would never think of violating Cuban sovereignty again by removing the tyrant it installed 50 years ago in our country, but it has no problem usurping that very sovereignty by committing atrocities on Cuban soil which U.S. law would prohibit on U.S. territory.

Guantánamo Naval Base, of course, is Cuban territory under U.S. jurisdiction. It was leased "in perpetuity" in 1901 as a naval coaling station during the U.S. Occupation of the island that followed the Spanish-American War. The U.S. refused to end its occupation unless Cuba's Constituent Assembly approved the lease of Guantánamo and incorporated the Platt Amendment into the new Cuban Constitution. Actually, the Americans originally wanted ten bases in Cuba. It was a pyrrhic victory that Cubans were able to keep them to one.

Under international law, then as now, the U.S. could not just take a chunk of Cuban territory as recompense for "liberating it." France, after all, did not claim Chesapeake Bay as its due for winning America's independence at Yorktown in 1789. Nor, do I think, will the U.S. claim the oil fields in Iraq as compensation for liberating it. Back in 1901, however, the U.S. was just getting its bearings as an imperialist power and pretty much did as it wanted in regard to its pseudo-colonies. That "lease in perpetuity" was a triumph of American gunboat diplomacy. Under international law, no such thing ever existed before or since.

No doubt the U.S. would have returned Guantánamo to Cuban jurisdiction at the time it agreed to cede the Panama Canal to Panama except for Fidel Castro. The Panama Canal Zone, where, incidentally, John McCain was born during his father's term of service there, was indeed U.S. territory, not "leased" from the Panamanians. Guantánamo is not. It is that legal fact which allowed the Bush administration to subvert the Constitution and the Rule of Law by aping the worst abuses of Fidel Castro in the land where, apparently, all rights end for everybody.

Since Castro does it to his own people, Bush figured that he was also entitled to torture his enemies on Cuban soil, deprive them of all rights under the U.S. Constitution and the Geneva Convention, and, without bringing charges against them in an American court, hold them indefinitely as the U.S. once did the Mariel excludables. Infinitely worse than the internment of the Japanese during World War II as "enemy aliens," the confinement of these 270 political prisoners under truly inhuman conditions and in violation of all norms of international law has weakened the U.S. position as an advocate of human rights throughout the world and led directly to the revamping of the U.N. Human Rights Commission, which in the past had condemned Communist Cuba but which is now controlled by its terrorist allies, and the election of a Sandinista relique as president of the General Assembly. George Bush not only did great damage to this country but empowered, indeed, resurrected its enemies when he agreed to stand on the same moral plane with them.

Today the Supreme Court restored America's moral equilibrium when it ruled that the detainees at Guantánamo have the right to challenge their detentions in U.S. Courts. In a 5-4 decision, it struck down the parts of the Military Commissions Act of 2006 that would have created special military tribunals to hear their cases. Under the provisions of this Act the detainees would not have been allowed access to the evidence against them and hence would not have been able to refute it (if, in fact, any such evidence existed). It is the closest that the U.S. has ever come to establishing star chambres since the Sedition Act of 1798. Writing for the majority, Justice Anthony Kennedy noted that "The laws and the Constitution are designed to survive, and remain in force, even in extraordinary times." We should all hope so.