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Here's Why the US Is Still Using Guantanamo to Squat in Cuba

Gitmo is one of the few places in the world that are under the rule of law but still not really anyone's property, making it both a weird legal outlier and a unique asset.

by Ryan Faith
Mar 24 2016, 4:30pm

Photo by Jason Leopold/VICE News

During President Barack Obama's historic trip to Havana this week, the Cuban government reiterated one of its long-standing beefs: despite the warming of relations with the United States, it's still not down with the United States maintaining a military base on Cuban soil.

Cuban President Raul Castro listed the issue just behind the US embargo on Cuba as the primary impediment to diplomatic progress. After calling for the embargo to be lifted at a joint press conference with Obama, he said, "In order to move forward towards normalization, it will also be necessary to return the territory illegally occupied by Guantanamo naval base."

Today, the installation at Guantanamo is mostly known for the controversial detention center that was established there in January 2002 to hold various post-9/11 "War on Terror" suspects. That story has been covered in great detail and at great length by some excellent journalists. But long before Guantanamo became synonymous with indefinite detention and pissing off Muslims and rights advocates, it was doing a stellar job of pissing off Cubans.

Cuba was once a Spanish colony. By 1898, the Cubans were busy trying to forcibly eject the Spanish for the third time in three decades. The idea of a beleaguered people throwing off the shackles of European colonialism struck a chord with the US — which also happened to be interested in getting other global powers out of its backyard. So after some double-dealing, chicanery, and other shenanigans, the US rolled out the short-lived Spanish-American War.

Because Cuban independence was the ostensible objective of the whole exercise, it certainly wouldn't do for the US to kick out the Spanish and then make Cuba a US colony. Instead, Washington doubled down on Cuban independence and swore to fight any country who dared mess with the island. The US government at the tiime was so darned committed to Cuban sovereignty that it even ended up putting military bases on Cuban soil, most of which were later let go, except one: Guantanamo Bay.

Related: Will Cuba Now Cash 55 Years' Worth of Guantanamo Rent Checks?

Most of the time, the matter of sovereignty is pretty intuitive: a given chunk of turf belongs to some country or another and they get to decide what laws and rules are enforced there. There are a couple places where traditional ideas of sovereignty break down a little, however.

The remotest parts of Siberia, Alaska, the Canadian Arctic, and Greenland are technically part of various countries, but they're so remote that they're really beyond the reach of the long arm of the law and civil society. Other places, like Brazil's favelas, are very much within a country's sovereign territory, but in reality are places where the central government cannot, for various reasons, reliably enforce the rule of law.

And then there are military bases.

Military bases on foreign soil are placed there as a result of negotiations between the host nation and the foreign government. Such an agreement — which in the US's case is called a Status of Forces Agreement, or SOFA — basically says that the host nation's laws don't apply inside the base, but the host nation still retains ultimate ownership over that land.

SOFA agreements customarily involve lots of caveats, restrictions, and other fine print about what the foreign nation can and can't do, when national laws are invoked, when things remain under control of the visiting nation, and so on. Establishing a base also entails a lease or rental agreement with its own terms. You can live there and do whatever you want with the furniture and whatnot, but the property is still the host's.

And so it is with Guantanamo. The US and Cuba arranged a lease in 1903 that didn't set a time frame. When a new treaty between the two countries was agreed in 1934, it stipulated that the US can rent this 45-square-mile chunk of territory in perpetuity, and that to end the US presence, both Cuba and the US have to agree to terminate the lease.

"So long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territory it now has," the treaty said.

Watch the VICE News documentary Guantanamo: Blacked Out Bay

The Castro government that took over Cuba in 1959 won't endorse the agreement, but it can't quite disregard it. The US routinely sends rent checks for the base amounting to the tidy sum of $4,085 per year, but Cuba doesn't cash them because doing so would signal that it regards the treaty, and therefore the US presence, as legitimate. (The US likes to point out that Cuba did cash one check post-revolution, but Fidel Castro says that was a mistake.) Likewise, Cuba won't sign a SOFA agreement with the US. The government effectively can't (or won't) exercise sovereign rights over the base. In fact, it has set up one of the biggest minefields in the world outside of Guantanamo — intended, in part, to prevent Cubans from leaving Cuba to go to... Cuba.

Though the US government is the only party exerting any control or jurisdiction over the territory, it still isn't US territory, as the treaty notes — it's Cuban, just without any of that country's legal authority. For its part, the US government has also argued that there's no habeas corpus at Guantanamo because the Constitution does not apply there. (The Supreme Court disagreed with this in 2008, but its decision has since been criticized as largely toothless.) It has used Guantanamo's odd status to conveniently waver on whether or not it counts as part of the US.

From Cuba's perspective, the base is a military occupation by a foreign power. And it kind of has a point, except that the land was never taken from Cuba, per se, and the US maintains that the mutual agreement over renting the land still stands despite the Communist government's objections.

Related: Chinese President Reasserts Astroturf Sovereignty Claims in South China Sea

At a practical level, both Cuba and the US know that a Cuban assault to take over the base would result in much chaos and destruction, so for now, Cuba's leaders have to keep themselves happy by being very unhappy about all of this. Everyone knows that the US isn't going to pull out until it's damned good and ready. But Obama's visit kinda, sorta, hints at the possibility that this could be back on the table once again. So far, administration officials have been very explicit about the fact that US isn't going anywhere. Nonetheless, perhaps even more than the embargo, the return of Gitmo would be the Holy Grail for a US-Cuba hookup.

The Guantanamo drama would make some sort of weird, twisted sense if the base were of incredible strategic importance, but it's not. Its main role (outside of detaining people) is as a central logistics and intelligence hub for the US Navy's Fourth Fleet, but nothing really prevents those operations from being moved to Florida or Puerto Rico. Granted, the present location is excellent, but not irreplaceable.

What makes Guantanamo indispensable is that it's a spot where the US government can exercise absolute control over a territory it absolutely does not own. The cost of the base is usually between $150 million and $250 million per year, which isn't huge stakes by Pentagon standards, so it's not exactly breaking the bank.

In effect, the Guantanamo Bay Naval Station is the world's most highly organized, tightly managed case of squatting (complete with a local Starbucks) on property that has effectively been abandoned by Cuba in protest. Aside from continually pissing off the Cuban government, the sheer legal weirdness of the place is what makes it valuable. After all, it's always nice to have a spare legally anomalous territory in your back pocket.

Follow Ryan Faith on Twitter: @Operation_Ryan

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