A Guantanamo-Size Hole in the Constitution

Visit the official U.S. Navy website for Guantanamo Bay and the first thing you'll see is a picture of a gigantic American flag planted firmly on Cuban soil. The picture confirms the obvious: that this forty-five square mile chunk of territory, geographically part of Cuba, is under direct and exclusive American control.

The United States has occupied Guantanamo Bay for over a century. U.S. Marines first wrested control of Guantanamo from Spain in 1898, at the outset of the Spanish-American war. The American government later formalized its power over the territory via agreements signed with Cuba in 1903 and 1934, back when the Cuban Republic was an obedient client state.

A single clause in these agreements reserves "ultimate sovereignty" over the territory to Cuba. Except for the right to an annual rent -- money that the current Cuban government refuses to accept -- Cuba's formal sovereignty has little practical value. No matter how unhappy the Cuban authorities may be with the United States, their putative "tenant," they are unable to evict U.S. forces from the island.

Cuban sovereignty over Guantanamo exists only in the abstract. Yet it is, for the U.S. government, a convenient legal fiction. In the current litigation over the fate of the hundreds of detainees held on Guantanamo, the government's position is premised on the fact that Guantanamo is technically foreign soil. Because Guantanamo is part of Cuba, argues the government, it is beyond the reach of American courts.

What is most dismaying about these formalistic discussions of Guantanamo's legal status is not simply that they disregard the practical reality of U.S. control over the territory. They also, quite mistakenly, ignore the U.S. government's deliberate decision to place the detainees there.

This much should be clear. The detainees did not accidentally fall outside of the jurisdiction of the federal courts because they ended up on Guantanamo. Rather, they were brought to Guantanamo for the very purpose of being kept beyond the jurisdiction of the courts.

A few weeks ago, the Supreme Court agreed to hear two cases brought on behalf of foreign detainees on Guantanamo. Although the appeal has not been framed in precisely these terms, what the Court will rule on, in essence, is whether Guantanamo should remain a Constitution-free zone.

As the situation now stands, it is not Guantanamo's security features that make it a tempting place to hold detainees. In Illinois, Colorado, and elsewhere, there are high-tech super-maximum security prisons that are far more secure than the makeshift facilities on Guantanamo. What makes Guantanamo unique is that, if the Supreme Court accepts the Administration's views, the courts will have no role in monitoring and protecting the right of the detainees held there.

The key precedent underlying the Administration's position is Johnson v. Eisentrager. In that 1950 case, the Supreme Court denied a group of convicted German war criminals the right to seek federal court review of their sentences. The Court's opinion placed great emphasis on the fact that occupied Germany, where the prisoners were being held, was foreign territory.

The Court has never before ruled on the legal status of Guantanamo, but the lower courts have. In the 1990s, when tens of thousands of Haitian and Cuban refugees were detained on Guantanamo, the courts reached differing conclusions regarding the implications of Cuban sovereignty over the territory.

In a 1992 ruling by the U.S. Court of Appeals for the Second Circuit, which was later vacated as moot, the court found that the Cuba's residual sovereignty over Guantanamo did not strip detainees there of all rights. Three years later, however, the U.S. Court of Appeals for the Eleventh Circuit took the opposite view. Relying on the fact that the detainees were held outside of U.S. territory, it found that they were "without legal rights that are cognizable in the courts of the United States."

There are many good reasons not to extend the Eisentrager precedent to cover Guantanamo. Even without overruling Eisentrager, the Court should find for the Guantanamo detainees.

Yet a re-reading of Eisentrager shows what an embarrassment it is, like the Japanese internment cases of the same era. Justice Hugo Black, one of the dissenters in the case, raises powerful objections to the majority's stubborn and begrudging focus on territorial sovereignty.

"Does a prisoner's right to test the legality of a sentence," Black asked, "depend on where the Government chooses to imprison him?" He warned, specifically, against allowing the executive branch, "by deciding where its prisoners will be tried and imprisoned," to deprive the federal courts of their power to protect individual rights.

What is most relevant, Black explained, are not abstract notions of sovereignty but instead concrete realities of power and control. "We control that part of Germany we occupy," he noted. "Only our own courts can inquire into the legality of [the prisoners'] imprisonment."

Whenever and wherever the U.S. government imprisons someone, the courts should be able to review it. The contrary idea -- power but no law -- is lawlessness.