Could Barack Obama Give the Guantanamo Naval Base Back to Cuba?

2016-02-27-1456581689-8509750-GuantanamoCamp_Delta_Guantanamo_Bay_Cuba.jpg Camp Delta, internment facility at the Naval Station Guantanamo Bay, Cuba.

Is President Barack Obama planning to give the American naval base at Guantanamo Bay back to Cuba? The president has made no secret of his desire to shut down Camp Delta, the internment facility for jihadists, which is housed on the base. Closing down "Gitmo," as the interment facility is typically referred to, figured prominently in President Obama's election campaigns in both 2008 and 2012.

The Obama White House has repeatedly asserted that the existence of the internment facilities at Gitmo is a "powerful recruiting tool" for jihadist organizations and should be closed. The U.S. Congress has repeatedly stymied these plans, refusing to appropriate money for the closure of Gitmo, and even going so far as to pass legislation specifically requiring Congressional approval for the transfer of any detainees from Gitmo.

The president has one other alternative for closing down Gitmo, he can issue an executive order unilaterally withdrawing the U.S. from the Cuban-American Treaty of Relations of 1934, thus rescinding America's right to operate a naval base at Guantanamo Bay and, by extension, forcing the closure of the facility and any of the detention camps housed there. In recent weeks there has been a spate of media reports asserting that the White House may in fact be considering such an action.

Additionally, Republican presidential candidate Senator Ted Cruz, during the Republican presidential debate sponsored by CNN on December 15, warned that, "I fear that by the end of this year, President Obama plans to give the Guantanamo Naval Base back to Cuba." Senator Cruz repeated his allegation at a campaign rally in Reno, Nevada, on February 22. Senator Marco Rubio, another Republican contender for the nomination, made the same allegations at a rally in Las Vegas on February 21.

To be fair to the Obama White House, it has not given any indication that it is in fact even considering the option of returning Gitmo to Havana. Responding to press reports suggesting that such an action was under discussion, White House Press Secretary Josh Earnest stated clearly that, "The naval base is not something that we believe should be closed." Secretary of State John Kerry echoed similar comments when he declared that returning the base to Cuba "was not part of the discussion on our side."

Moreover, unilaterally returning the base to Cuban sovereignty during a presidential election year would have far reaching consequences for Democrat candidates for political office. If the Obama White House were to unilaterally give back the naval base to Havana, it would most likely come in the period following the November election. The question we need to ask is, does President Obama have the constitutional authority to unilaterally return the Guantanamo Bay Naval Base back to Cuba? The surprising answer is yes.

The United States acquired the right to maintain a naval base at Guantanamo Bay pursuant to the Cuban-American Treaty of Relations that the two countries signed in 1903. The treaty stipulated that the newly created Republic of Cuba would lease to the United States land surrounding Guantanamo Bay for the purpose of establishing a coaling and naval station for as long as necessary. The treaty acknowledged that Cuba retained "ultimate sovereignty" on the land being leased, but that the United States could "exercise complete jurisdiction and control."

The 1903 treaty was subsequently abrogated and replaced by the 1934 Cuban-American Treaty of Relations. In that treaty, the government of Cuba again confirmed the lease of land at Guantanamo Bay to the United States for the purpose of a naval base unless the agreement was modified or abrogated by mutual consent of the two parties or the base was abandoned by the U.S. The treaty also increased the rent for the leased land from $2,000 a year, payable in gold coins, to $4,085 a year, payable in cash. That same rent has continued to this day.

2016-02-27-1456581824-2206085-Guantanamo.jpg Map of the Guantanamo Bay Naval Base.

The base itself covers approximately 45 square miles of land and water at Guantanamo Bay on the southeast corner of the island of Cuba. The shorthand term "Gitmo" evolved from the airfield designation code GTMO used by the U.S military. The facility is the oldest overseas naval base still operated by the United States and the only base it operates in a communist country. The facility houses approximately 9,500 sailors and marines.

In January 2002, the United States established a military prison within the confines of the Guantanamo Bay Naval Base to, according to then Secretary of Defense Donald Rumsfeld, "house extraordinarily dangerous people, to interrogate detainees, and to prosecute detainees for war crimes." At its peak, the detention facility held 670 individuals. Since then, as of February 2016, the number of detainees has been reduced to 91. Of those 91, 35 are eligible to be transferred to other countries, 10 are awaiting trial by military courts, and 46 are still being evaluated.

A total of 783 individuals have been detained at the camp since it was established. 532 prisoners were released during the Bush Administration and the Obama Administration has released 151. There have been nine detainees that have died from either natural causes or suicide. It currently costs the United States approximately four million dollars per year to house each prisoner. According to the Director of National Intelligence, as of July 15, 2015, approximately 30 percent of the inmates released have either been confirmed or are believed to have reengaged in "combatant activity."

In addition to the main facility, nicknamed Camp Delta, which consists of six separate detention facilities numbered 1 to 6, there are a number of smaller facilities at the base. These include Camp 7, used to house high security detainees formerly held by the CIA in overseas "black sites" under the extraordinary rendition program, Camp Echo, where detainees are held prior to appearing before the Military Commissions, and Camp No, a "black site" about a mile outside the main camp perimeter where interrogations were conducted. There is also a small site, nicknamed "Penny Lane," where inmates that the CIA was attempting to recruit as double agents to spy on al-Qaeda were held.

Detainees in the camp have accused the United States of abuse and torture. In January 2009, Susan J. Crawford, who had been appointed on February 7, 2007, to the Convening Authority for the Guantanamo Military Commissions by the Bush administration, issued a report concluding that there was at least one instance where the torture of a detainee had occurred. Ms. Crawford is an American lawyer who had previously served as the Chief Judge of the United States Court of Appeals for the Armed Forces.

President Barack Obama issued Executive Order No. 13492 on January 22, 2009, two days after taking the Oath of Office, suspending the proceedings of the Guantanamo military commission for 120 days and ordering the shutdown of that facility by year end. A U.S. military judge at Guantanamo rejected that request. The United States Senate subsequently passed an amendment to the Supplemental Appropriations Act of 2009, on May 20, by a 90-6 vote to block funds required for the transfer or release of prisoners held at the detention camp. The House followed suit and the provision was enacted on June 24, 2009.

2016-02-27-1456582104-750917-Guantanamo_captives_in_January_2002.jpg Newly arrived detainees at the Guntanamo Bay naval base, January 2002

President Obama issued a presidential memorandum on December 5, 2009, ordering that the Department of Defense purchase the state run Thompson Correctional Center in Thompson Illinois, and prepare to accept prisoners transferred from the Guantanamo Bay facility. No such transfers ever occurred, however.

Congress subsequently reaffirmed its restrictions on the transfer of detainees from Guantanamo to either the United States or foreign countries in the 2011 National Defense Authorization Act (NDAA). Similar restrictions have been imposed on subsequent Defense Authorization Bills since then. The 2014 NDAA spelled out in detail the procedure required to obtain Congressional approval for any transfer of detainees. In addition, Congress imposed other restrictions, including a provision that Congress has to be notified 30 days before any transfers are carried out.

The White House announced on November 4, 2015, that it would submit a plan in early 2016, to shut down the detention facility and transfer the remaining detainees to U.S. soil. On February 23, 2016, President Obama, claiming that the continued operation of the detention facility at Guantanamo bay was "contrary to our values" and that it was an embarrassment to the United States that "our closest allies have raised...with me continually," unveiled a proposal to shut down the facility and identified potential sites where detainees could be transferred.

According to the latest proposals, prisoners could be housed in facilities in military prisons in Leavenworth, Kansas and Charleston, South Carolina or U.S. military bases in the continental United States. Several civilian prisons in Colorado were also proposed. There are a number of terrorists already being held in the "super-max" wing of the prison facility in Florence, Colorado. According to the Department of Defense, it would cost between $290 million and $475 million to prepare existing state or federal prisons to only hold Guantanamo detainees.

Not surprisingly, ever since the Cuban revolution brought Fidel Castro to power in 1959, Cuba's government has opposed the United States' continued use of the naval base at Guantanamo Bay. Havana has repeatedly claimed that the U.S. presence in Cuba was on land "illegally occupied" under international law and has asserted that the 1903 and 1934 treaties were imposed on Cuba by the threat of force in violation of the Vienna Laws on Treaty Conventions.

Since the revolution, other than for one instance in 1960, which the Cuban government claims was done in error, Havana has refused to cash any of the checks that the American government has submitted to Cuba for the payment of the land leased by the United States. Instead they have argued that the U.S. "is in default."

Fidel Castro reportedly kept the un-cashed checks in a drawer of his desk and would on occasion show them to visitors, pointing out that the checks, made out to the Treasurer General of the Republic, referenced a position that no longer existed in the Cuban government.

2016-02-27-1456582000-9663035-GuantanamoEmbassy_of_the_Republic_of_Cuba_in_Washington_D_C.jpg Embassy of the Republic of Cuba, Washington DC

During the ceremony for the raising of the Cuban flag at the newly reopened Cuban Embassy in Washington DC, on July 20, 2015, Cuban Foreign Minister Bruno Rodriguez emphasized that the reestablishment of diplomatic relations between the U.S. and Cuba would not be "complete" until the "return of the occupied territory in Guantanamo and respect for the sovereignty of Cuba."

Should Congress refuse to implement the president's proposal to close the detention facility at the Guantanamo Bay Naval Base, a foregone conclusion given the widespread Republican opposition to the proposal, he has a number of other options at his disposal. First of all, he could withhold the payment of the $4,085 lease payment that is due to Cuba on the anniversary of the Cuban treaty with the United States. The next installment is due on June 9, 2016. The failure to make the annual lease payment would be an event of default under the treaty. A second option would be for President Obama to simply terminate the 1934 treaty with Cuba by executive order.

The Constitution of the United States specifically gives the president the authority to negotiate treaties on behalf of the United States subject to their ratification by two-thirds of the Senate. The Constitution, however, makes no reference to who can terminate a treaty and whether the president needs the consent of the Senate to do so.

According to Michael Ramsey, a professor of law, at the University of San Diego Law School and a specialist in the areas of constitutional law and foreign relations law, Article II, Section 1, of the Constitution clearly states that, "the President has the executive power of the United States." Treaties are considered laws under Article VI of the Constitution and are the responsibility of the President to "execute." Professor Ramsay argues that when a president "decides that a treaty should no longer apply, he is executing the treaty" in accordance with the powers granted to him under the Constitution.

Secondly, according to professor Ramsey, from the very beginning of the U.S government, it was recognized that, as Thomas Jefferson, George Washington's Secretary of State wrote, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department (i.e., the president), except as to such portions of it as are specifically submitted to the Senate." In other words, the conduct of the United States' foreign relations is clearly vested in the office of the president.

The Constitution does not specify that the consent of the Senate is necessary for the termination of a treaty. There are certainly plenty of precedents where presidents have terminated existing treaties without the consent of the Senate. In 1939, President Roosevelt terminated the Treaty of Friendship with Japan. President Carter terminated the Mutual Defense Treaty with Taiwan in 1979, when the United States formally recognized the People's Republic of China and its government in Beijing. President George W. Bush withdrew from the 1972 Anti-ballistic Missile (ABM) Treaty in January of 2002. In none of these cases did the sitting president seek Senate ratification of his actions.

Moreover, there is also a significant precedent with respect to ambassadorial and other presidential appointments. The Constitution requires Senate ratification of ambassadorial appointments, but is mute on the role of the Senate when it comes to the termination of such appointments. Although presidents have submitted such appointments to the Senate for confirmation, no single president has ever submitted an ambassadorial termination to the Senate for approval. Presidents have been free to fire ambassadors, or for that matter other appointees that require Senate approval, at will.

According to professor Ramsey, "the president has constitutional authority to abandon the base according to the terms of the treaty," although his actions could be constrained by Congressionally imposed statutory limits. In addition, based on historical precedent, it would seem that President Obama also has the constitutional power to terminate the 1934 treaty with Cuba that grants the United States the right to operate a naval base at Guantanamo Bay. From a practical standpoint, either act, should he decide to carry one out, would be largely symbolic. The president would still need Congressional approval for the funds to actually shut down the base and to transfer the detainees to other locations.

Even if the treaty was terminated, it is highly unlikely that the Cuban government would attempt to seize control of the facility by force and risk a military confrontation with the American soldiers there. A unilateral termination of the treaty would certainly bolster Cuba's legal case against the U.S. that the base facility is illegal. It might also prompt the Cuban government to take the United States to the World Court and try to embarrass Washington by obtaining a judgement against the continued U.S. occupation of the facility.

What exactly, if anything, is the Obama administration planning in regard to the continuation of the Guantanamo Naval Base in Cuba? We will certainly know by the end of the year.

For additional comments from professor Michael Ramsey on the subject of this column go here.