Shouts from the desert

News reports today have described the overnight decision of the Washington DC circuit Appeals Court in the Guantanamo Bay cases as though it sealed Hicks' fate. No doubt some of those who support incarcerating people without trial will claim the result as evidence that Hicks should continue to be detained. Neither conclusion is correct.

The Hicks case will naturally be appealed to the Supreme Court of the United States (SCotUS). SCotUS has previously reversed decisions of the DC circuit on Guantanamo Bay cases, and with a persuasively argued dissent in the most recent decision there is plenty of scope for reversal on appeal.

Even if the DC circuit court is right, the decision says nothing about the merits of the detainees' case. This was a decision solely as to jurisdiction &emdash; the US Government argued and the DC circuit Court agreed that it is not even allowed to consider the question of whether the Guantanamo system of detention is legal. Accordingly the Court did not, at any point in the judgement, discuss to the slightest degree whether Hicks and his co-plaintiffs had a legal right to their freedom.

This is the result of the mechanism used in the Detainee Treatment Act &emdash; it was specifically written to remove jurisdiction to hear such cases. It takes little imagination to come up with reasons why a Government would want to prevent a Court from determining whether or not that Government's actions are illegal.

Guantanamo Bay

In the course of reviewing this case I looked into the history of the Guantanamo Bay naval base, and what I found showed a long history of underhanded conduct in relation to this base by the United States. While it is often said that the base exists under a lease granted by Cuba to the United States, that technical truth hides a greater deception. The lease was granted indefinitely under threat by the United States that they would not grant independence without it &emdash; essentially it was an unwarranted condition on self-determination that was contrary to international law. Even though the principles of self-determination at the time of the initial grant in 1903 were not as strong as they now are, the circumstances are easily sufficient to render insistence on adherence to its terms at least incongruous with current international law if not an outright violation of it.

The lease was reaffirmed in 1934, but this was as a result of a direct threat of the use of force by the United States. As a consequence of this threat of force the treaty is entirely void, at least to the extent that it purports to grant or continue rights in the United States.

The treaty also gave the United States only limited rights &emdash; it was only allowed to use the base as a naval station and coaling facility. Its use for any other purpose is a breach of that treaty, and although Cuba has acquiesced to such uses, this appears to largely be done merely because Cuba has no ability to prevent the United States from shamelessly breaching the treaty.

The detainees ought to be taken into the United States to face regularly constituted courts under a civilised system of justice, however they are not the only ones that should be removed from Guantanamo Bay. The continued presence of the naval base there is a result of the rampant disregard of United States governments over the past century for the rights to sovereignty and self-determination of the Cuban people, and if more honest and decent policy were to prevail the base should be closed entirely.