Guantanamo as Outside and Inside the U.S.: Why is a Base a Legal Anomaly?

Abstract

Guantanamo’s historic role in empire explains why the base remains anomalously inside and outside US jurisdiction. Produced by historic empire, the base’s legal anomaly permits for detaining over 150 men, eight years after detentions began and over a year and half after President Obama ordered detentions to end. Referring to Alejandro Colás’s definition, empire is comprised of space (i.e. territorial expansion without any limit), markets (i.e. wealth-creation through market protection), and culture (i.e. notions of cultural superiority). The Platt Amendment (1902-34) and the Insular Cases (1901-20) point to law’s role in a base for empire’s space, i.e. the law of extraterritoriality. The base’s geopolitical and military functions in protecting US investments overseas, especially the Panama Canal, refer to empire as markets. Notions of Anglo-superiority implicit in foreign relations with Cuba, a US protectorate from 1902 to 1934, reflect empire as culture. This Essay is part of larger project examining the base and current empire as space, markets, and culture. The notion of empire explains why Guantanamo’s anomaly is not an aberration but instead is an intended legal objective.

Keywords: Guantanamo, Habeas, War on Terror, Kiyemba, Post-Colonial, Extraterritorial Jurisdiction

JEL Classification: K10, K30, K33, K43