Tuesday, February 26, 2013

50 Year Criminal Spree

The 50 year blockade of Cuba violates international law, says everyone except Palau, Israel, and the United states.
Every tort has a remedy.

Sunday, February 24, 2013

1902: George Frisbie Hoar

Hear, hear.
They will welcome us with flowers.

Saturday, February 23, 2013

And for no other purpose

The February 1903 lease agreement for Guantanamo states that the United States is allowed "generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose."

The prison was built at Guantanamo, not because of the excellent harbor, but because it was thought to be a legal black hole, out of reach of the courts, because of the Supreme Court rulings in the Insular Cases, that the Constitution does not "follow the flag". The flag, they say, is sometimes only a sign of imperial domination, of unchecked military power.

Since the siting of the prison was motivated by this rationale, it violates the terms of the lease, which only allows the site generally to be fitted to the purpose of a naval station, only, and not any additional purpose.

The permanent arbitrary detention of people, in violation of the rights of man, the Constitution, and international conventions, is not generally held to be a necessary function of a military installation, despite its frequency.

1903 Article III vs 1934 Article I

1903 Article III: "That the government of Cuba consents that the United States may exercise the right to intervene for the preservation of the Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba."

The US interprets the 1903 Article III to mean that the Cuban government gives consent, in advance, for interventions that otherwise, without consent, would be a violation of Cuban self-government, which self-government was transferred to the Cuban people via the Treaty of Paris and because the Teller Amendment kept the US from outright seizure of Cuba. This placed Cuba under the benevolent eye of the United States.

1934 Article I: "The treaty of Relations which was concluded between the two contracting parties on May 22, 1903, shall cease to be in force, and is abrogated, from the date on which the present Treaty goes into effect."

1934 Article I cancels 1903 Article III, which granted blanket consent to intervention, yet the United States, through boycotts, quarantines, blockades, over-flights, invasion, and black operations, continues to act as though 1903 Article III were in effect, and pushes aside 1934 Article I. That makes these actions unfriendly, and a material and fundamental breach of the Treaty of 1934. They render that Treaty void, because they run counter to international expectations that promises must be kept, and constitute an unexpected substantial change to the underlying conditions, in that the Unites States no longer seeks the maintenance of the government of Cuba, but its destruction.

This abrogation of the Treaty of 1934 on the part of the United States was matched by the equally hostile action of the invitation to the Russians by the Cubans to install nuclear weapons on its soil, something permitted by treaty, but an act that responded to the change in the underlying situation, and created further unexpected changes to the underlying situation.

Therefore, the Treaty of 1934 is voidable. The Treaty has very little of substance in it however. The condition that the US may abandon the base whenever it likes, is a restatement of the original terms of payment, in more precise words. The notion that the agreement may be modified only if both parties agree is just a restatement of common sense. One party may not change the terms of the agreement to suit itself, although the United States has often done this, as it sees fit. The clause deals only with friendly changes to the agreement. The lease my be changed in an unfriendly way, by acts that give the offended party the right to cancel the lease, as a remedy.

Friday, February 22, 2013

Another unanticipated use

As United States Admiral La Rocque’s Center for Defense Information has observed, “It is clearly unnecessary militarily”. Indeed, in the modern world, Guantánamo has little strategic importance, unless we overstate the facilitation of logistics for the 1983 United States invasion of Grenada and the 1989 invasion of Panama, both carried out for the purpose of obtaining regime change by force.
2003 Report of Alfred de Zayas

Thursday, February 21, 2013

Cuba's rights to self defense

With the abrogation in 1934 of the May 1903 Treaty of Relations, Cuba became free to enter into military arrangements with any nation for the purpose of securing its independence. The 1963 blockade of Cuba by the USA was intended to frustrate this purpose, which purpose was the benefit to Cuba to be secured by the 1903 lease, according to Article VII of the Appendix to the Constitution of Cuba, which was incorporated into the lease agreement.

The blockade was a fundamental breach.

Cuba and the USA - friends (forever)

The USA may prevent Cuban vessels from access to the ports in the Bay of Guantanamo, at its sole discretion, without that action being considered unfriendly. Any other action may be considered unfriendly, such as blocking access to the waters.

Tuesday, February 19, 2013

Regarding the basis for the Cuban lease

The USA may use the property at Guantanamo only as a naval station.

The lease agreement states that the purpose of the lease is to help the USA protect itself and to help the USA protect Cuba from a military threat to its independence.

The Bay of Pigs was an action undertaken that was inconsistent with that agreement. The US actions were not directed to protect the new Cuban government, but to overthrow it. This failure to come to the aid of the new Cuban government gives rise to a claim for damages. Years later, Kennedy promised to respect Cuban integrity, a promise that fell far short of the understanding that the USA would help to protect Cuba's independence from foreign military aggression. This is an anticipatory breach.

The US recognized that the Castro regime was the legitimate government of Cuba, since in 1959 the USA sent a check to the Castro regime, purportedly as payment under the lease. Further, the USA claims that the cashing of the check, in 1959, by the Castro regime constitutes the completion of a valid transaction required by the lease.

Sunday, February 17, 2013

The wisdom of the May 1903 Treaty of Relations

The May Treaty, article I, states

"I. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island."

The US correctly realized that foreign entanglements are often problematic, especially for a young nation necessarily weak, and that allowing a foreign power to establish a military base on its soil could easily jeopardize the freedom of the people of Cuba.

Nonetheles, a few months later, the US did exactly that.

The Constitution follows the flag

If the Constitution does not apply in full at Guantanamo, then on what basis do we decide which parts do apply and which parts don't apply. The government wants to argue that all its rights and powers apply,
but an individual's rights and powers are circumscribed.
Very convenient.

The constitution must follow the flag. If the Constitution is not present, of what purpose is the flag? And where the Constitution is present, the human rights of people are present, must be present. US authority can be challenged by a claim of a conflicting authority, but our law must not bend at the pleasure of our servants.

It should not be thought that the rights found in the Bill of Rights are granted to the people by the Constitution; rather they are rights retained by the people; never the government's to give or withhold, of greater scope than the Constitution, not of lesser. These are the rights of all Englishmen, or now, the rights of all people.

Thursday, February 14, 2013

Cuban lease documents at Yale Law School

There are three documents at the Yale Law School, Avalon project, that seem to contain the mutual obligations of the USA and Cuba as regards Guantanamo Bay. These are
The texts of the Lease
1. The February 23, 1903 Lease part 1, rules for Cuba
2. The July 2, 1903 Lease part 2, rules for the US Wikipedia summary

Treaty of International Relations between the two countries
3. The May 29, 1934 Treaty of Relations which modified and replaced the Treaty of Relations signed at Habana, May 22,1903.
Among other things, both versions of the treaty mention the lease.
In 1903, that there will be one. In 1934, that there is one, and it's fine.