Even If US Courts Don’t Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts

In response to my most recent item on Guantánamo Edward Hasbrouck asks this reasonable question: “if courts in the USA say Guantanamo isn't under their jurisdiction, doesn't that mean they would have to recognize Cuban jurisdiction?”

The answer to this question is unusually clear: No.

The US has signed two treaties with Cuba that relate to Guantánamo. In 1903 the US and Cuba signed a treaty (US Treaty Series No. 426) which provides,

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, 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 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 more recent treaty, the Treaty Between the United States of America and Cuba of 1934 (US Treaty Series No. 866) abrogates the 1903 agreement in Article I, but then in Article III states,

Until the two contracting parties agree to the modifications or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23rd day of the same month and year, the stipulations of that agreement with regard to the naval stations of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has, with the limits that it has on the date of the signature of the preset Treaty.

So the Gitmo provisions survive until the US and Cuba agree to change them. And Cuban courts have no jurisdiction to intervene.

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

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5 Responses to Even If US Courts Don’t Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts

  1. I’m still not convinced that “The answer to this question is unusually clear”.

    According to the treaties you cite, “the United States shall exercise complete jurisdiction and control over and within said areas” (1903 treaty) … “Until the two contracting parties agree to the modifications or abrogation of the stipulations of the agreement.” (1934 treaty)

    Would not Cuba be entitled to interpret a decision by the U.S. Supreme Court that the USA does not have jurisdiction over Guantanamo as an “abrogation”, within the meaning of the 1934 treaty, of the jurisdiction derived from the 1903 treaty?

    At *most*, all that would be further required by the 1934 treaty would be for Cuba formally to declare that Cuba “agrees” to this abrogation of jurisdiction by the USA. Full Cuban jurisdiction would then spring into effect.

    So my question remains: Have any habeous corpus petitions for Guantanamo detainess been presented to Cuban courts?

  2. Michael says:

    I’m afraid the premise is wrong. The US lacks “sovereignty” which is why, following some aged precedents, THE COURTS say they don’t have jurisdiction. That doesn’t mean, alas, that THE USA has no jurisdiction — it does, the Navy is there! It’s an old debate, ‘does the Constitution follow the flag’ (Mr. Dooley philosophized about it)–I think it does; the court has suggested it doesn’t. In particular there is a line of case making a distinction between territory leased without “sovereignty” and territory claimed by the US, with only the latter automatically falling under either the courts’ purview, or within the coverage of statutes that are not explicitly extra-territorial.

    As for Cuba, they don’t have habeaus corpus. They don’t really have judicial review in a meaningful way. They keep hands off Gitmo. Thre have been no court cases, and couldn’t be under the current treaty regime.

    And in fanct Castro has been oddly quiet about the whole thing. Is it because he likes having the US look repressive — makes him look less bad? Or some more complex agenda? Or a secret deal with the Bush admin? I have no idea what’s going on there….

  3. Tony Daniel says:

    I hold the opinion that the court does have jurisdiction. The question is one of whether it (the court) will exercxise the right of jurisdiction. If the federal courts do not have the right to review the actions of the executive branch, wherever the action might occur, then we as a nation are left with a breakdown in the notion of checks and balances that have been accepted leagal principles embedded in the constitution.

    Politically speaking, the courts have not shown a willingness to get involed during times of “national emergency”, the Florida presidential election, notwithstanding.

  4. Masaccio says:

    The US recognizes that Cuba retains “ultimate” sovereignty over Guantanamo, but the US has “shall exercise complete jurisdictin and control” . Black’s Law Dictionary, defines sovereignty as: “The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of gevernment and its administration; the self-sufficient source of political power, from which all specific political powers are derived;…, citing inter alia, Chisholm v. Georgia. Also, “The power to do everything in a state without accountability, — to make laws, toexecute and to apply them, to impose and collect taxes and levy contributions, to make war or peace,…citing Story.

    I cannot see a difference between “sovereignty” and “complete jurisdiction and control”. Cuba’s ultimate sovereignty would merely mean that at some point the land will revert to Cuba.

    Either the US has sovereignty, or Cuba does. IWho else is there?

  5. Who else is there? Options include, the US military,with Bush as CiC, the US government, with the court having judicial review, the Cuban military, Castro as CiC, the Cuban government, whoever that is, less likely, the King of Spain, nobody until Masaccio claims it, the heirs or assigns of bastita, some john doe.
    Maybe the prisoners (but not their guards) have a right to self-determination and elections under UN custom.
    My question, does cuba have jurisdiction to determine whether cuba has jurisdiction? Cuba will likely abstaain as a political question, but that’s different from lack of jurisdiction, it’s justiciability.
    I thought the greenhouse piece was pretty good. It’s analysis, which permits some editorial license about the imperial judiciary. The core times reader is politically aware, literate, liberal, not a lawyer. On the one hand, Rhenquist is king of deference to the other branches; he’s a judicial inactivist. But many times readers saw his role in the impeachment trial, bush v gore, and now McConnell, as overtly political.
    I think it’s fair to suggest Bush is using the war to try to evade otherwise justiciable questions of the scope of executive power, and the court, in, e.g., watchtower v stratton, hasn’t gone along quietly.
    I mentioned safire today ballots.blogspot.com re scalia’s parsing in Social Security v Barnhart.

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