Sunday, March 25, 2007

Amateur Legal Advice for Drug Dealers

So Mike and I agree that prisoner detention at Guantanamo will probably never get the swift attention it deserves and that those responsible for making it a legal and moral morass will never get the punishment they deserve. Robert Gates, the new Defense Secretary, reportedly has wanted to close it since before coming into office, and if the Defense Secretary can't or won't close it, then there's not much chance anybody else will.

Don't worry. This isn't another attack on torture at Guantanamo. (Lord knows we need more of those, but lord knows that nobody with an ounce of influence seems to listen to them or to act on them.) It is, instead, a gradual build-up to an innovative but potentially useful defense for drug dealers, arms dealers, and others who in the discharge of their professional duties may run afoul of the authorities.

Guantanamo as a detention facility exists because the courts have ruled that it's not on US soil, and therefore US legal protections don't apply to inmates held there. I don't buy that for a second. The Guantanamo Naval Base is a heavily fortified military facility that has been under continuous American control since 1903. If something becomes American soil because Americans have worked on it, lived on it, and defended it for generations, then Guantanamo has a better claim to being US soil than do big parts of my home state of Illinois and most of Alaska.

The rationale for saying that Guantanamo isn't US soil is that, technically, we've been leasing it from the Cuban government since 1903. So we're renters, not owners.

But this raises a big set of questions: if US law doesn't apply because Guantanamo isn't the US, then whose law should? Well, for military personnel, I assume it should be the Uniform Code of Military Justice, which applies to all American soldiers wherever they're stationed. But what about non-military personnel--the detainees, the Cuban asylum-seekers who live and even work on the base? Well, they're not on American soil, so it can't be US law. They're not in the US military, so it can't be the Uniform Code. But they are on Cuban soil, so it must be Cuban law. Problem solved.

Of course, that doesn't solve the problem at all. If civilians on the naval base are subject to Cuban law, then we should turn over the al-Qaeda prisoners, the "al-Qaeda" prisoners, and the asylum-seekers to Cuban courts. ("Thank you for seeking asylum from Cuba in Cuba. Your petition for political asylum will be heard by Castro's great-nephew, who will determine whether you will be granted asylum in Cuba or instead deported back to Cuba.")

Since that's clearly impossible, we're back to the Kafkaesque legal fiction that Guantanamo is under US control by force and by treaty but not part of the US. Because, see, we're tenants, not owners.

As bizarre and ludicrous as that may be, it has a potential upside for criminals who get a little sloppy prior to the issuance of a search warrant:
POLICE: We've got you dead to rights, O'Shea. Twenty-three, two-kilo bricks of Oregon's finest pot. Six kilos of uncut coke. Two crates of Chinese AK-47 knockoffs with matching crates of cop-killer bullets. Two shoulder-mounted RPG launchers. And three kilos of weapons-grade plutonium. You're gonna be serving ten consecutive life sentences.
O'SHEA: That' ain't my stuff, man.
POLICE: What are you talking about? We found them in your apartment, badly hidden in your bedroom closet under back issues of Better Housekeeping with your name on all the mailing labels. The bullets were wrapped in a blanket that has your name and "Camp Adventure, 1979" embroidered on it.
O'SHEA: Sure. That's where you found them. In my apartment.
POLICE: So you admit it?
O'SHEA: In my rented apartment. Which, of course, means it's not mine. Anything you find in my rented apartment doesn't belong to me or to my landlord.
POLICE: So who does it belong to, O'Shea?
O'SHEA: I dunno. Cuba?
POLICE: Right then. Men, we're gonna make a little trip to Havana, to arrest Fidel Castro.

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