BOUMEDIENE V. BUSH AND GUANTÁNAMO, CUBA: DOES THE EMPIRE STRIKE BACK ?

Focusing on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantánamo Bay, Cuba, this article argues that the base’s legal anomaly heavily influences “War on Terror” detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantánamo but retains “complete jurisdiction and control” for an indefinite period; while Cuba has “ultimate sovereignty.” Gerald Neuman labels this as an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because of this anomaly, with checks in constitutional and international law perceived to not apply. This article makes three arguments about what legal norms apply on Guantánamo. First, the base’s legal anomaly is not an aberration, but instead is a precise objective of U.S.-Cuba relations, evident in the Platt Amendment and international agreements. Second, four legal objectives frame anomaly, historically and presently. They are that the U.S.: avoids sovereignty abroad, limits incidents of Cuban sovereignty, avoids constitutional limits for overseas authority, and protects strategic overseas interests. Using these objectives, Boumediene addresses this anomaly. To hold that detainees have access to the writ of habeas corpus in the Constitution’s Suspension clause, the Court finds that the U.S. exercises de facto sovereignty over the base and that the Constitution has extraterritorial application. Third, tracking legal similarities in base occupation and base detention, post-colonial analysis illuminates how current doctrine evades individual rights protections with overseas authority