Guantanamo is a legal, political no-man's land
Carol Rosemberg, The Miami Herald
GUANTANAMO BAY NAVAL BASE, Cuba - U.S. troops blare "The Star Spangled Banner" across this 45-square-mile base each morning at 8 o'clock sharp. Fireworks crackle overhead on the Fourth of July.
Marines control the fence line opposite Cuba's minefield and American sailors check visitors' passports or Pentagon ID cards as they arrive by plane.
So why did U.S. officials recently advise some Chinese journalists who report from Washington that, by traveling to Guantanamo as guests of the Pentagon, their visas to visit and work in the United States would expire?
The answer is that, while the U.S. Navy base functions like an extension of the United States, sometimes it is and sometimes it isn't - mostly to the benefit of those in government.
Consider this: Defense Department contractors who work and live here and don't set foot onto U.S. soil for more than 30 days a year get a tax break, like any American living and working abroad.
Army guards at the prison don't get the tax exclusion, but they do get bonuses of $425 a month in allowances, imminent danger and hardship duty pay - plus $250 a month if they leave family behind.
Those dollars buy time for scuba diving, Pizza Hut delivery and drinks in the base bars, all Navy-run enterprises, as are the free rides home to avoid the base's drunk-driving checkpoints.
Navy base and prison guests are put up in two-story townhouses that ooze American - patios for barbecues, a downstairs powder room for guests, private laundry rooms. But over at "Camp Justice" - the place where the Pentagon is putting on the death-penalty trials - visitors are put up in a crude tent city evocative of Bagram airbase in Afghanistan circa 2001.
It all creates a certain dissonance, says retired Army Lt. Col. Chris Jenks, who observed some Sept. 11 pretrial hearings recently, his first foray back to "the battlefield" since leaving service and becoming a law professor at Southern Methodist University in Dallas.
At one moment, the West Point grad said, you can see families at McDonald's or the bowling alley or take a sunset sail on the bay. But the war court compound where he was put up was so reminiscent of his last forward operating base in Iraq that one morning he groggily reached for his M16 in the latrine tent, and briefly panicked because it wasn't there.
Guantanamo, he says, is made up of "puzzle pieces from three or four sets" that don't fit together.
Jenks is a former infantryman turned lawyer in the Judge Advocate General (JAG) corps who handled detainee abuse and friendly-fire cases - and looks to precedent and the law to try to parse the question.
"If you look at the lease, it's America as long as we want it to be America," he says. "I'm not sure how that functionally is any different than Puerto Rico."
In 1965, he said, the U.S. declared the base a special maritime jurisdiction and brought a Cuban to federal court in Miami for the machete killing of another non-U.S. citizen on base. For that crime, Guantanamo was subject to the prosecutorial jurisdiction of the United States. Since the Bush administration chose to imprison war-on-terrorism captives seized around the world, it has sought to make sure the opposite applies.
That's why moments before boarding a U.S. military charter to Guantanamo at Andrews Air Force Base - the place where the Pentagon parks the president's plane, Air Force One - an airman warned two Chinese journalists that going to Guantanamo would amount to entering a foreign country, and their single-entry work visas would be invalid on their return.
They were invited by the Office of the U.S. Secretary of Defense to report on some war crimes hearings and were scheduled back a week later, on a nonstop flight.
They didn't go.
Had they gone, they could've purchased a souvenir plastic cup at the base commissary for $6.99 - duty-free by federal code covering "articles of foreign origin" at GTMO, the military's shorthand for the base. Tthe souvenir is stamped "GTMO, USA, Cuba."
It is for this base of about 6,000 residents that the U.S. military is building a $40 million undersea fiber-optic link to Florida so data can be sent to the Pentagon as swiftly as any office on U.S. soil.
While there has been a continuous American presence at Guantanamo Bay since U.S. forces took it in a Spanish-American War battle in 1898, it's technically leased territory. From Cuba, whose landlord, Fidel Castro, told the tenants to go home long ago.
The U.S. government says it's a tenant barricaded behind a Cuban minefield and, as though to prove it, cuts a check each year for $4,085 - rent, based on a 1934 treaty made public by President Franklin D. Roosevelt.
It's a one-way transaction. The Cuban government does not cash the checks.
Babies born to Americans at the base hospital are automatically citizens. A diplomat from the U.S. Embassy in Kingston, Jamaica, the closest to the base, periodically visits to process paperwork for Guantanamo's American babies, says Kelly Wirfel, the Navy base public affairs officer.
But that's not a privilege passed along to Filipino or Jamaican guest laborers who work as waitresses at the Irish Pub or clean the officers' guest quarters. Were one to get pregnant at Guantanamo, she'd probably get a ticket home to avoid the issue of her baby's citizenship.
Which is why nobody was willing to speculate on that baby's theoretical nationality. Would that baby be Cuban? Guantanamite? Stateless?
Guantanamo is not like Puerto Rico, says the State Department's Bureau of Consular Affairs. It's more like a U.S. embassy (with school, golf course, church and prison), and babies born to noncitizens at embassies aren't entitled to citizenship, either.
And that pretty much reflects the pick-and-choose approach that's become all the more pronounced as the war court hears pretrial motions in six death-penalty cases. Defense attorneys are asking the military judges to decide which parts of the U.S. Constitution apply at the court that George W. Bush built and Barack Obama froze, and then reformed to exclude some, but not all, self-incriminating statements made in the years before the men got lawyers.
Habeas corpus? Yes, because the U.S. Supreme Court said so in the 2008 Boumediene v. Bush decision. "In every practical sense Guantanamo is not abroad," Justice Anthony Kennedy wrote for the majority. "It is within the constant jurisdiction of the United States."
Ex post facto? At least sometimes, because a federal appeals court decided recently that Osama bin Laden's 9/11-era "media secretary" couldn't be convicted in 2008 of providing material support for terrorism in 2001 because Congress created it as a war crime in 2006. Separately, a military court of appeals panel in the same case has ruled out his First Amendment free speech right to produce an al-Qaida recruiting video - one of his crimes.
Confrontation? That's still playing out at the war court, where defense lawyers are arguing to exclude the hearsay evidence of a man who was interrogated by the FBI in Yemeni custody in 2001, then killed by a missile launched from a U.S. drone 11 years later.
"I always feel silly doing this," said Cheryl Bormann, defense attorney for a Yemeni man accused in the 9/11 plot, as she filled out a U.S. Customs form aboard a Miami Air charter hired by the Pentagon to shuttle lawyers from a war court hearing.
She had left Andrews Air Force Base two weeks earlier on a nonstop Pentagon flight to the U.S. Navy base, never left U.S.-controlled territory, and was now returning to Andrews.
"The reason that we're filling out those stupid forms is they want to pretend this isn't the United States," she said later. "As though those forms are going to help an argument down the line that Guantanamo Bay, Cuba, is a foreign country; and somehow their establishment of this commission in a foreign country can avoid U.S. law. And I think they're wrong on all counts."
She calls it pick-and-choose patriotism.
"It's America when the environmental protection laws prohibit us from killing an iguana or committing drunken driving," she said.
"But it's not America when they can get away with paying less than minimum wage" to the Jamaicans or Filipinos who clean the officers' Guest Quarters. "It it's not America when they want to violate American law regarding torture. And it's not America when they avoid applying the Geneva Conventions."
So what did she write as the country she visited before her return to Andrews Air Force Base?
Guantanamo Bay Naval Air Station.
Bormann wrote not the name of the entire base, where a secret prison has jailed her client since 2006. She wrote in the airport - a single airstrip on the edge of the sea a ferry ride away from the main part of the base.
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