Some U.S. legislators are not satisfied with the legal guarantees enjoyed by the Guantánamo Naval Base, and want to prevent possible negotiations on returning the territory illegally occupied for more than a century to Cuba.
The current Congress is considered to be one of the most dysfunctional in history.
In addition to the constant bickering between the Republican majority and the Democratic administration of Barack Obama, a tangle of special interests are threatening to unbalance the U.S. two-party system, in place for more than 200 years.
As this situation unfolds, several bills have been proposed to do for Guantánamo what the Helms-Burton law of 1996 did for the blockade: codify the status quo as law, and limit Presidential authority to make changes.
This year's defense budget already includes a stipulation that prevents the President from closing the prison in Guantánamo, established at the Naval Base in 2002 after the terrorist attacks of September 11, which was one of Obama's campaign promises during the 2008 elections. What is afoot is an effort to strengthen this prohibition, and prevent, by all possible means, any negotiations with Cuba regarding the return of the territory where the base is located.
Several figures within the Obama administration, including Secretary of State John Kerry, have denied that the issue of Guantánamo is on the table in negotiations with Cuba, as part of the process of moving toward normalization of relations. Nevertheless, President Obama has not ruled out the possibility, commenting in an interview with Yahoo News, "I suspect that will be a long, diplomatic discussion that will outlast my administration."
Experts agree that the day such negotiations begin, the President has the executive authority to terminate the lease agreement, which has allowed the U.S. government to maintain control and use Cuban territory for over a century, without Congressional approval.
A precedent exists in the history of U.S. jurisprudence regarding Presidential authority in terms of treaties. During the administration of Jimmy Carter, the District of Colombia's federal appellate court upheld the constitutional prerogative of the President to end the country's Mutual Defense Treaty with China, signed in 1934.
This bilateral agreement, just like the one signed by the U.S. and the newborn neo-colonial republic of Cuba in 1902, did not contain conditions or clauses granting
Congress any role at all in terminating the treaty. A broad consensus exists among jurists and academics recognizing executive authority in such cases - also justified given the powers granted Presidents by the Constitution to manage and direct the country's foreign policy.
LOCKDOWN
U.S. Legislators who oppose normalization of relations with Cuba, or simply want to curtail Presidential power, are looking for ways to make the path to negotiations on Guantánamo more tortuous, and have found ways to do so.
"On this issue, there is a Constitutional conflict between the President's authority to conduct foreign policy, and Congressional power to control the budget," American University professor William Leogrande explained to Granma.
Thomas B. Wilner, an attorney with the prestigious Shearman & Sterling firm in Washington who has represented inmates held in the prison, stated to this reporter that Obama has the legal authority to initiate negotiations with Cuba, but, "From the practical point of view, it is unlikely that a President would act in a unilateral manner without the support of Congress."
Thus the importance of the current oppositional climate in Congress. Legislators could approve a separate law, or include a stipulation about Guantánamo within another bill, especially appropriations bills which fund vital government activity. Ted Yoho, (R-Florida) is one of the House leaders intent upon restricting Presidential authority. In addition to strengthening provisions in the budget bill, he introduced the Guantánamo Transfer Prevention Act (HR 4126) which would go much further than anything discussed thus far. Another Representative from Florida, David W. Jolly, had his own version, the Naval Station Guantánamo Bay Protection Act (H.R. 654) which he introduced in February, 2015. Language from that bill was included in a National Defense Authorization Act.
There are now more than a dozen such bills linked to the Guantánamo Naval Base circulating in Congress. Among the principal proponents are several legislators of Cuban origin who oppose any attempt to return territory occupied by the base. In an article she wrote for the Diario las Américas, Ileana Ros-Lehtinen reports on her recent visit to Guantánamo, along with her Cuban-American colleagues, Mario Díaz Balart and Carlos Curbelo, among others.
"Congress must prevent the President from closing the Naval Station, or the detention center, and returning the base to the Castro regime," she insisted.
"STRATEGIC" FOR TOTURE
Ros-Lehtinen also referred to an old myth to justify this vestige of colonialism - the alleged strategic importance to U.S. interests of the base's location.
The only "strategic" advantage is the use of the base to arbitrarily detain and torture individuals with impunity, beyond the reach of U.S. courts and the international community.
According to the terms of the original agreement, the land where the base is located belongs to Cuba, but the U.S. has full control of it. Thus, what lawyers call a "legal black hole" has been created.
The prison had gone down in history as a symbol of the darkest side of U.S. foreign policy in its "struggle against terrorism," wrought with human rights violations of the detained.
IMPERATIVE FOR NORMALIZATION OF RELATIONS
Since the December 2014 announcements by Presidents Raúl Castro and Barack Obama, to work toward normalization of relations, Guantánamo has been one of the principal obstacles to progress in the process, along with the definitive lifting of the blockade; an end to subversive programs, including illegal television and radio broadcasts; and compensation to the Cuban people for damages caused by aggressive U.S. policies, over more than 50 years.
The issue has, however, been present for a long time. "It has been a Cuban demand since the beginning of the Revolution. It was one of the five points presented by Cuban authorities during the October (Missile) Crisis," noted
Elier Ramírez Cañedo, PhD of Historical Sciences and coauthor of an important book on Cuba-U.S. relations.
"Different U.S. administrations have always avoided serious discussion with Cuba on the issue," he told Granma International, after emphasizing that the most far-reaching talks took place during the Carter administration in 1978.
History has shown, Ramírez noted, that the issue has not been taboo, and that given the right conditions, a mutually beneficial solution could be found.
In fact, the Helms-Burton law stipulates that the U.S. could take steps toward the return of the territory, once what the interventionist text describes as "a democratic government" is in place in Cuba, making clear that the issue of "strategic interest" is irrelevant.
Washington has gone further on other occasions. Professor Leogrande recalls, "The obvious precedent for negotiations on the return of Guantánamo is the agreement reached by President James Carter with Panama, which led to the return of the Canal. The Torrijos-Carter Treaty was much more politically difficult within the United States than the return of Guantánamo would be."
The Cuban historian Elier Ramírez insisted that the issue is not "impossible" for the United States, although perhaps "thorny" during an electoral year, adding, "The reality is that Obama has the executive authority granted by the U.S. Constitution to return to Cuba the territory now occupied by Guantánamo. He didn't say anything about this in his speech in Havana's Alicia Alonso Grand Theater, despite knowing that this is a very sensitive issue for Cubans, that continues to compromise the island's territorial sovereignty."
Luis René Fernández Tabío, researcher at the University of Havana's Center for Hemispheric and U.S. Studies (CEHSEU), believes that the closing of the Guantánamo base and the return of territory it occupies will be achieved as it becomes clear that the cost of maintaining the base are greater than any real or perceived benefit to security or wellbeing, from the U.S. perspective.
"As tortuous as the path may be, the uselessness of the naval base will become evident, from all points of view - economically, politically, ideologically - even, and above all, for the 'national security' of the United States," he added.
The factor which is key to reaching this objective, he insisted, is that Cuba continue to raise the demand, and sustain its strength as an independent, sovereign nation, progressively consolidating its economic, social, and political model.
