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In the case of Shafiq Rasul, et al, Petitioners, v. George W. Bush et al, Respondents, and Fawzi Khalid Abdullah Fahad al Odal, et al, petitioners, v. US, et al, Respondents, Nos. 03-334 and 03-343, a Brief Amicus Curiae of Retired Military Officers (three retired US military officers, each of whom served as Judge Advocate General or the senior legal advisor for a branch of the US military, and with extensive experience with US military regulations and the Laws of War. Each dedicated his military career to the principle that the mission of the nation's Armed Forces must be consistent with the Rule of Law. These three are a Marine Brigadier General, and two Rear Admirals).
Quoting from part of the brief:
Under the Unique 1903 Lease With Cuba, the United States exercises at least some sovereign powers over the Guantanamo base.
. . .The Guantanamo lease is unique. For one thing, the lease is perpetual - the US can keep the base as long as it likes. the original lease, for "coaling or naval stations," was not subject to any time limitation, and a 1934 treaty with Cuba confirms that the US may retain the base forever if it wishes: it provides that the lease remains in force "so long as the United States of American shall not abandon the said naval station of Guantanamo or the two governments shall not agree to a modification of its present limits.
. . . .
The government's current interpretation of Artcle III of the 1903 lease and of the "ultimate sovereignty" provision in particular - is fundamentally at odds with the interpretation that has long held sway among those within the US military charged with responsibility for Guantanamo and for the negotiation and administration of other base leases.
The most striking evidence of this is found in a history of the Guantanamo Naval Station written in 1953 - long before this dispute arose - by Rear Admiral Marion E. Murphy, the Commander of Guantanamo at the time. His book, The History of Guantanamo Bay (1953) was published by the Navy and is posted to this day on the official US Navy web site (www.nsgtmo.navy.mil/history.htm), which describes the history as a "monumental work", although it adds a disclaimer that the history is not "presented as 'official documentation. . . by the US govt. or its agencies."
Admiral Murphy's understanding of the lease's "ultimate sovereignty" could not have been clearer:
"Ultimate," meaning final or eventual, is a key word here. It is interpreted that Cuban sovereignty is interrupted during the period of our occupancy, since we exercise complete jurisdiction and control, but in case occupation were terminated, the area would revert to the ultimate sovereignty of Cuba.. . . . it is clear that at Guantanamo Bay we have a Naval reservation which, for all practical purposes, is American territory. Under the foregonig agreements, the US has for approximately fifty years exercised the essential elements of sovereignty over this territory, without actually owning it.. . .Moreover, "unless we abandon the area or agree to a modification of the terms of our occupancy, we can continue in the present status as long as we like."
The brief goes on with more recent quotes from subsequent Rear Admirals/Judge Advocate Generals, further documenting the position that US has sovereignty over Gitmo.
Cuban authorities also have recognized implicitly that Cuba does not exercise complete sovereignty over the base as a result of the lease. The Cuban Supreme Court held 70 years ago that "the territory of that Naval Station is for all legal effects regarded as foreign.
I cannot give you a link to this brief, because I am referring to my own copy, which I was given just yesterday by Rear Admiral Donald J. Guter, who is one of the 3 who filed this brief, and who served as the Navy's Judge Advocate General from June 2000 through June 2002, and is now Dean of Duquesne University's Law School. ( Rear Admiral Guter was in the Pentagon when it was attacked on 9/11.)
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