Wednesday, February 02, 2005

Distinguishing Guantanamo

David Glazier, a former naval officer and current research fellow at UVA's Center for National Security Law takes issue with my claim that due process rights in Guantanamo may lead to due process rights at other U.S. military bases overseas. He writes:

Having spent extensive time at overseas naval bases (I was stationed at Yokosuka, Japan for 20 months and have visited Guantanamo (GITMO) three times, most recently as the commandingofficer of a frigate in early 2001), I can tell you there are MAJOR differences between our use of GITMO and other leased bases. Under most base agreements the host nation exercises significant practical controls,particularly in areas such as immigration and customs. We cannot host athird country national, for example, at Yokosuka w/o Japanese approval. Andservicemen reporting for duty in Japan clear Japanese customs andimmigration. In Cuba we do as we please in terms of having people come and go.

Something the administration has overlooked is that had the courtsadopted their view that Cuba still enjoyed sovereignty over GITMO, we would then logically have had to secure their consent to any third countrynationals' presence; i.e. they should be able to veto detentions there; notonly of the current terror suspects but also such previous use as the largescale detention of Haitian refugees. And it surely would have called into question the legality of past detentions of Cuban refugees as well.

Since the U.S. has given up our naval base at Roosevelt Roads, P.R., GITMOis essentially our only base in the Caribbean, and is thus key to supporting a variety of national security concerns including interdiction of illegalmigration, drug smuggling, etc., not just detention of suspected enemycombatants. So I'd argue the court decisions finding federal jurisdiction over GITMO have actually served our longer term national security interests better than the single-issue preoccupation of the administration.The Navy's longstanding interpretation was that "ultimate" Cuban sovereignty referred to in treaty language meant the literal dictionary definition ofultimate -- last in time, not the common connotation of ultimate as meaningsuperior. That is, Cuba would be sovereign when the U.S. finally decided to end the lease. Of course no one currently in the Navy would want to incurthe wrath of the administration by making this point very forcefully.

I think Dave makes a very good point and I of course defer to his superior knowledge of how the military bases work, and that factually, Guantanamo may be sui generis. Only one quibble: you can imagine countries that are very deferential to the U.S. (Afghanistan and Iraq under occupation come to mind) on hosting third party nationals. Or to take an historical example, U.S. bases in occupied Germany and Japan at the end of WWII were probably similar to Guantanamo - we were there until we chose to leave.

At one point does that deference by the host country suggest that we are essentially exercising sovereignty such that the base falls within federal habeas jurisdiction and requires giving alien combatants there due process rights?

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