Naval Station Guantanamo Bay: History and Legal Issues Regarding Its Lease Agreements

Naval Station Guantanamo Bay: History and

Legal Issues Regarding Its Lease Agreements

Updated August 1, 2022

Congressional Research Service

https://crsreports.congress.gov

R44137

Naval Station Guantanamo Bay

Summary

This report briefly outlines the history of the U.S. Naval Station Guantanamo Bay, Cuba, its

changing relationship to the surrounding community, and its heightened importance due to

military operations in Afghanistan. The report also explains in detail the legal status of the lease

of the land on which the naval station stands, the statutory and treaty authorities granted to the

President with regard to any potential closure of the naval station, and the effects on such a

closure that Cuba sanctions laws might have.

At the end of the Spanish-American War in 1898, the Spanish colonies of Cuba, Puerto Rico,

Guam, and the Philippines transitioned to administration by the United States. Of these four

territories, only Cuba quickly became an independent republic. As a condition of relinquishing

administration, though, the Cuban government agreed to lease three parcels of land to the United

States for use as naval or coaling stations. Naval Station Guantanamo Bay, Cuba, was the sole

installation established under that agreement. The two subsequent lease agreements signed in

1903 acknowledged Cuban sovereignty, but granted to the United States “complete jurisdiction

and control over” the property so long as it remained occupied.

The prominence of Naval Station Guantanamo Bay rose briefly during the Haitian refugee and

Cuban migrant crises of the early 1990s. At one point in late 1994, the migrant population of the

naval station approached 45,000. However, by the end of January 1996, the last of these

temporary residents had departed.

The naval station’s return to prominence arose due to the establishment of facilities to house a

number of wartime detainees captured during military operations in Afghanistan and elsewhere.

This practice began in early 2002 with the refurbishment of some of the property formerly used to

house refugees and was expanded to more substantial housing that is operated by Joint Task

Force-Guantanamo, a tenant for which the naval station provides logistical support. Additional

temporary facilities were eventually constructed on a disused naval station airfield for use by the

military commissions created to try detainees.

The 1903 lease agreements between the governments of Cuba and the United States are

controlled by the language of a 1934 treaty stipulating that the lease can only be modified or

abrogated pursuant to an agreement between the United States and Cuba. The territorial limits of

the naval station remain as they were in 1934, unless the United States abandons Guantanamo

Bay or the two governments reach an agreement to modify its boundaries. While there appears to

be no consensus on whether the President can modify the agreement alone, Congress is

empowered to alter by statute the effect of the underlying 1934 treaty. There is no current law that

would expressly prohibit the negotiation of lease modifications with the existing government of

Cuba, but the House of Representatives passed a prohibition on carrying out such a modification

without congressional approval as part of the National Defense Authorization Act (NDAA) for

FY2017 (P.L. 114-328). This prohibition has been extended in subsequent years through FY2022.

As for “abandoning” the naval station, there appears to be no statutory prohibitions against

closing an overseas military installation. Nevertheless, Congress has imposed practical

impediments to closing the naval station by, for example, restricting the transfer of detainees from

Guantanamo to foreign countries and banning their transfer to the United States. The existence of

various sanctions imposed upon Cuba may also impede closing Naval Station Guantanamo Bay

by making it difficult to give or sell any property to the Cuban government.

For background on U.S. policy toward Cuba, see CRS Report R45657, Cuba: U.S. Policy in the

116th Congress and Through the Trump Administration, by Mark P. Sullivan; and CRS In Focus

IF10045, Cuba: U.S. Policy Overview, by Mark P. Sullivan.

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Naval Station Guantanamo Bay

Contents

Introduction ..................................................................................................................................... 1

A History of Naval Station Guantanamo Bay, Cuba ....................................................................... 3

Independence and the Land Lease ............................................................................................ 4

U.S.-Cuban Relations Deteriorate; Naval Station Is Isolated ................................................... 5

The Naval Station’s Role Changes............................................................................................ 6

The Legal Status of the Land Lease ................................................................................................ 7

Presidential Authority to Modify or End the Guantanamo Lease ............................................. 8

The President’s Authority to “Abandon” Guantanamo ........................................................... 10

Impact of Cuba Sanctions Laws .............................................................................................. 13

Figures

Figure 1. Naval Station Guantanamo, Cuba .................................................................................... 3

Figure 2. U.S. Naval Station Guantanamo, Detail........................................................................... 7

Contacts

Author Information........................................................................................................................ 14

Acknowledgments ......................................................................................................................... 14

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Naval Station Guantanamo Bay

Introduction

U.S. Naval Station Guantanamo Bay, Cuba, exists, despite continuing fraught diplomatic

relations, as a remnant of a treaty arrangement the United States imposed as a condition on

Cuba’s independence in 1901.1 The Guantanamo lease arrangement remains a point of contention

between the two countries, with Cuba demanding its termination and the United States resisting

such demands.2 The naval station retains congressional interest and has been the focus of annual

defense riders, as described below, for more than a decade due to its use as a host for detention

and trial operations for Al Qaeda and certain other wartime detainees. The naval station itself,

however, is distinguishable from the military commissions and detention facilities located within

its boundaries. These military commissions and detention facilities outlined below are separate

and independent military organizations housed at the naval station.

While President Barack Obama expressed an intention to close the detention facilities at the naval

station as early as his first month in office,3 his Administration maintained that it had no

intentions or plans to alter the status of the naval station itself.4 President Donald Trump reversed

course on closing the detention facilities, suggesting a desire to increase the detainee population

as necessary.5 The Biden Administration has announced its intention to close the detention

facility6 but has not issued an executive order to that effect. Since 2011, Congress has enacted

restrictions on the transfer of detainees from Guantanamo in successive National Defense

Authorization Acts7 and included provisions designed to prevent the closure or abandonment of

the naval station.8

Naval Station Guantanamo Bay: The 45 square miles of land on which the station sits have

been leased from the Cuban government since the early years of the 20th century.9 The naval

1 See infra “Independence and the Land Lease.”

2 See, e.g., National Defense Authorization Act for Fiscal Year 2017 § 1286, Pub. L. No. 114-328, 130 Stat. 2000, 2545

(Dec. 23, 2016) (withholding funding for any activity to “invite, assist, or otherwise assure the participation of the

Government of Cuba in any joint or multilateral exercise or related security conference” without certification that Cuba

“no longer demands that the United States relinquish control of Guantanamo Bay, in violation of an international

treaty,” among other conditions). For more background on U.S.-Cuba relations, see CRS Report R45657, Cuba: U.S.

Policy in the 116th Congress and Through the Trump Administration, by Mark P. Sullivan.

3 Exec. Order No. 13492, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and

Closure of Detention Facilities, 74 Fed. Reg. 4897 (Jan. 22, 2009).

4 Id. at 4897-4900; Press Release, Department of Defense, Department of Defense Press Briefing by Secretary Carter

and Gen. Dempsey in the Pentagon Briefing Room, (Jul. 1, 2015), http://www.defense.gov/Transcripts/

Transcript.aspx?TranscriptID=5648.

5 Exec. Order No. 13823, Protecting America Through Lawful Detention of Terrorists, 83 Fed. Reg. 4831 (Jan. 30,

2018) (revoking Exec. Order No. 13492).

6 White House, Background Press Call by Senior Administration Officials on Guantanamo Bay (Jul. 19, 2021),

https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/19/background-press-call-by-senioradministration-officials-on-guantanamo-bay/.

7 E.g., Ike Skelton National Defense Authorization Act for Fiscal Year 2011 §§ 10332–33, Pub. L No. 111-388, 124

Stat. 4137, 4351 (2010); National Defense Authorization Act for FY 2022 §§ 1032-1035, Pub. L. No. 117-81, 135 Stat.

1541, 1901 (2021).

8 See infra “The President’s Authority to “Abandon” Guantanamo.”

9 See Commander, Navy Region Southeast, Naval Station Guantanamo Bay, History,

https://www.cnic.navy.mil/regions/cnrse/installations/ns_guantanamo_bay/about/history.html. DOD reports the

permanent population of military and civilian personnel as of 2021 in Cuba as 650. See Department of Defense,

Number of Military and DoD Appropriated Fund (APF) Civilian Personnel,

https://dwp.dmdc.osd.mil/dwp/api/download?fileName=DMDC_Website_Location_Report_2112.xlsx&groupName=m

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station was established to serve as a protected harbor, coaling station.10 The naval station falls

under the Navy Region Southeast in Jacksonville, Florida.11 The naval station provides logistical

support to the detention and military commission facilities located within its boundaries.12

Joint Task Force—Guantanamo: The various detention facilities on the eastern extremities of

the naval station are operated by Joint Task Force (JTF)—Guantanamo, a combined Army, Navy,

Air Force, Marine Corps, and Coast Guard organization that is currently commanded by an Army

brigadier general. JTF—Guantanamo is a subordinate of U.S. Southern Command

(USSOUTHCOM), one of the 11 Combatant Commands, which is headquartered in Doral,

Florida, near Miami.13 JTF—Guantanamo was established in late 2002.

Office of Military Commissions—South Detachment: President George W. Bush created the

military commissions currently operating under the authority of the Military Commissions Act of

2006,14 since amended.15 The Director of the Office of Military Commissions is directly

subordinate to the Secretary of Defense and the Deputy Secretary of Defense. The Office of

Military Commissions is located in Washington, DC,16 and the office’s Guantanamo Bay

detachment (OMC-South) operates out of a temporary facility, Camp Justice, that sits on the

closed McCalla airfield on the east side of the mouth of Guantanamo Bay.17

ilRegionCountry. The New York Times lists the total population at around 6,000. Carol Rosenberg, Guantánamo Bay:

Beyond the Prison, N.Y. TIMES, Nov. 26, 2021, https://www.nytimes.com/2021/11/26/us/politics/guantanamobay.html.

10 MICHAEL J. STRAUSS, THE LEASING OF GUANTANAMO BAY 62, 68 (2011).

11 Commander, Navy Region Southeast, https://cnrse.cnic.navy.mil/.

12 STRAUSS, supra note 10, at 70-72.

13 U.S. Southern Command, https://www.southcom.mil/About/.

14 120 Stat. 2600, codified in Chapter 47A of Title 10, United States Code. For more information on military

commissions, see CRS Report R41163, The Military Commissions Act of 2009 (MCA 2009): Overview and Legal

Issues, by Jennifer K. Elsea.

15 Military Commission Act of 2009, §§ 1801-1807, 123 Stat. 2190, 2573 (2009).

16 For information on the Office of Military Commissions, see http://www.mc.mil/ABOUTUS.aspx.

17 474th Engineers Construct New Commissions Complex, Oct. 18, 2007,

https://www.nationalguard.mil/News/Article/573079/474th-engineers-construct-new-commissions-complex/.

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Figure 1. Naval Station Guantanamo, Cuba

Source: By CRS using data from Esri. Map created by Bisola Momoh, Visual Information Specialist.

A History of Naval Station Guantanamo Bay, Cuba

The origins of the U.S. military installation at Guantanamo Bay, Cuba, lie in the execution of

military operations during the Spanish-American War of 1898.18 While the principal reasons for

the declaration of war by both Madrid and Washington centered on U.S. intervention in an

ongoing indigenous revolution in the Spanish colony of Cuba—a precipitating event was the

sinking of the battleship USS Maine by an explosion in Havana harbor in February19—the war

was fought on Cuban and Puerto Rican soil in the Caribbean and in Guam and the Philippines in

the Pacific. At war’s end, the United States retained control of Spain’s former territories in the

Pacific and Puerto Rico,20 while Cuba eventually established an independent government after

several years of U.S. occupation.21

The military campaign in Cuba began with the landing of U.S. Marines at Guantanamo Bay on

the island’s southeastern coast in early June 1898 and the eventual capture of the various Spanish

fortifications in the vicinity by a combined U.S.-Cuban force.22 The bay proved a valuable staging

area for the subsequent land and naval campaigns against the city of Santiago de Cuba, 41 miles

to the west, and Puerto Rico, 600 miles to the east.23 The Marine camp created to the east of the

bay’s mouth during the operation was disestablished in August 1898,24 and Spain ceded control of

18 STRAUSS, supra note 10, at 42.

19 JONATHAN M. HANSEN, GUANTANAMO: AN AMERICAN HISTORY 87 (2011).

20 STRAUSS, supra note 10, at 42.

21 HANSEN, supra note 19, at 134–45 (recounting U.S. negotiations with Cuban Constitutional Convention).

22 MARION EMERSON MURPHY, HISTORY OF GUANTANAMO BAY 3–4 (2d ed. 1953).

23 Id.

24 Id. at 4.

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Cuba, along with the other contested territories, to the United States in the Treaty of Paris of

1898.25

Congress inserted the so-called Platt Amendment into the Army appropriations act for FY1902.26

The provision authorized the President to return control of the island to the people of Cuba on the

condition that the country ratify a constitution containing specific provisions recognizing certain

U.S. rights, including “the right to intervene for the preservation of Cuban independence and the

maintenance of a government adequate for the protection of life, property, and individual

liberty.”27 With regard to the future naval station, Article VII of the amendment provided:

That to enable the United States to maintain the independence of Cuba, and to protect the

people thereof, as well as for its own defense, the government of Cuba will sell or lease to

the United States lands necessary for coaling or naval stations at certain specified points,

to be agreed upon with the President of the United States. 28

Independence and the Land Lease

Cuba became an independent republic in 1902, and the Platt Amendment became part of the

country’s 1901 constitution. In February 1903, under President Theodore Roosevelt, the United

States and Cuba signed a lease agreement “for the purposes of coaling and naval stations.”29

According to Article III of the lease agreement:

While on the one hand the United States recognizes the continuance of the ultimate

sovereignty of the Republic of Cuba over the above described areas of land and water, on

the other hand the Republic of Cuba consents that during the period of the occupation by

the United States of said areas under the terms of this agreement the United States shall

exercise complete jurisdiction and control over and within said areas. . . .30

In May 1903, both countries signed the Treaty of Relations defining bilateral relations that

incorporated the full text of the Platt Amendment, including Article VII cited above.31

President Roosevelt signed an additional lease agreement in October 1903,32 which set the sum to

be paid and provided for various other rights and obligations. The President cited the Platt

Amendment as his authority to sign the agreement;33 the President did not seek, and the Senate

did not provide, its advice and consent.

25 Treaty of Peace, Spain-U.S., Dec. 10, 1898, T.S. No. 343.

26 31 Stat. 897. Part of the Act making appropriations for the support of the Army for the fiscal year ending June

thirtieth, nineteen hundred and two, enacted March 2, 1901. Senator Orville Hitchcock Platt of Connecticut sat on the

chamber’s Committee on Cuban Relations.

27 Id.

28 Id. at 898.

29 For the full text of the amendment, see Platt Amendment (1903), https://www.archives.gov/milestonedocuments/platt-amendment.

30 The agreement included three separate parcels of land at (1) Guantanamo, (2) a site in northwestern Cuba, and (3)

Bahia Honda. Only the naval station at Guantanamo was actually built. Agreement Between the United States and

Cuba for the Lease of Lands for Coaling and Naval stations, T.S. No. 418 (entered into force February 23, 1903),

available online at http://avalon.law.yale.edu/20th_century/dip_cuba002.asp.

31 United States-Cuba Treaty, T.S. No. 437 (entered into force July 1, 1904), available at

http://www.historyofcuba.com/history/havana/treaty.htm.

32 Agreement providing conditions for the lease of coaling or naval stations, T.S. No. 426 (entered into force Oct. 6,

1903), available online at http://avalon.law.yale.edu/20th_century/dip_cuba003.asp.

33 Id. (“I, Theodore Roosevelt, President of the United States of America, having seen and considered the foregoing

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In 1934, during President Franklin Delano Roosevelt’s Administration, the 1903 Treaty of

Relations was abrogated and replaced with a new friendship treaty, the 1934 Treaty of

Relations.34 The Senate gave its advice and consent without condition on May 31, 1934.35 The

new treaty repealed the controversial Platt Amendment language of the 1903 Treaty of Relations,

which was the basis for several U.S. military interventions in Cuba (1906, 1912, 1917, and

1920).36 The new treaty did, however, include a provision related to the lease of Guantanamo.

With regard to the U.S. military facility, Article III of the 1934 treaty provides:

Until the two contracting parties agree to the modification or abrogation of the stipulations

of the agreement in regard to the lease to the United States of America of lands in Cuba for

coaling and naval stations . . . , the stipulations of that agreement with regard to the naval

station of Guantanamo shall continue in effect. The supplementary agreement in regard to

naval or coaling stations signed between the two Governments on July 2, 1903, also shall

continue in effect in the same form and on the same conditions with respect to the naval

station at Guantanamo. So long as the United States of America shall not abandon the said

naval station of Guantanamo or the two Governments shall not agree to a modification of

its present limits, the station shall continue to have the territorial area that it now has, with

the limits that it has on the date of the signature of the present Treaty. 37

U.S.-Cuban Relations Deteriorate; Naval Station Is Isolated

Relations between the naval station and the surrounding community remained stable from the

time of its establishment through both world wars and well into the 1950s.38 This began to change

with the initiation of the Cuban revolution,39 which originated in the nearby hills of Cuba’s

Oriente Province.40 An example of that change in the relationship was the capture of 29 sailors on

liberty outside the base gates on June 27, 1958, by forces led by Raúl Castro, brother of

revolutionary leader Fidel Castro.41 The last of the sailors was released on July 18 of the same

year.42

As bilateral relations deteriorated in the aftermath of the Cuban revolution, the United States

broke diplomatic relations with Cuba on January 3, 1961.43 The Cuban government cut off the

lease, do hereby approve the same, by virtue of the authority conferred by the seventh of the provisions defining the

relations which are to exist between the United States and Cuba, contained in the Act of Congress approved March 2,

1901, entitled ‘An Act making appropriation for the support of the Army for the fiscal year ending June 30,1902.’”).

34 Treaty of Relations, Cuba-United States, T.S. No. 866 (entered into force June 9, 1934), available online at

http://avalon.law.yale.edu/20th_century/dip_cuba001.asp.

35 78 CONG. REC. 10116.

36 For a list of these interventions, see CRS Report R42738, Instances of Use of United States Armed Forces Abroad,

1798-2022, by Barbara Salazar Torreon and Sofia Plagakis.

37 Treaty of Relations, supra note 34, art. III.

38 See Commander, Navy Region Southeast, Naval Station Guantanamo Bay, History,

https://www.cnic.navy.mil/regions/cnrse/installations/ns_guantanamo_bay/about/history.html.

39 Id.

40 HANSEN, supra note 19, at 209.

41 Id. at 214.

42 Peter Kihss, All Servicemen Freed in Cuba, NY TIMES, July 19, 1958, at 1. The article noted that Raúl’s forces had

kidnapped fifty American and Canadian civilians and servicemen between June 26 and June 30 of that year.

43 Associated Press, U.S. Breaks Cuba Relations, BOSTON GLOBE, Jan. 4, 1961, at 1. For background, see CRS Report

R45657, Cuba: U.S. Policy in the 116th Congress and Through the Trump Administration, by Mark P. Sullivan.

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supply of water to the naval station on February 6, 1964, and the naval station has remained selfsustaining in water and electrical power in the years since.44

The Naval Station’s Role Changes

In the early 1990s, the naval station was used to house a sizeable number of Haitians and Cubans

fleeing their countries by boat and seeking asylum. A September 1991 coup in nearby Haiti

prompted several thousand Haitians to attempt to escape by sea, and by December more than

6,000 were being housed at facilities on U.S. Navy ships and ashore at the naval station.45 Joint

Task Force 160 was created in 1994 to process more than 40,000 Haitian migrants before its

deactivation in 1994.46

Another role for the naval base emerged in the aftermath of the September 11, 2001 terrorist

attacks. On November 13, 2001, President George W. Bush issued a military order directing the

detention of certain non-citizens suspected of involvement in international terrorism.47

Refurbishment of the disused refugee facilities and construction of new detention centers at the

naval station was first announced in the press on January 2, 2002, within four months of the 2001

terrorist attacks.48 Joint Task Force-160, a multi-service unit under Marine command, arrived at

the naval station in early January 2002 to begin construction of facilities for up to 2,000

detainees.49 Almost immediately, the first detainees, approximately 300, began to transfer to these

facilities from Kandahar, Afghanistan.50

JTF-Guantanamo was created in November 2002 to operate the newly created detention

facilities.51 According to The Guantánamo Docket, a website maintained by the New York Times,

the total number of detainees who have been held at the detention facility is approximately 780.52

As of July 2022, 36 detainees remain at the site.

44 Associated Press, Johnson Firm on Cuba, Pledges Water for Base, BOSTON GLOBE, Feb. 7, 1964, at 1.

45 Barbara Crossette, U.S. Transfers Haitians to Base in Cuba, N.Y. TIMES, Nov. 27, 1991, at A3; Barbara Crossette,

U.S. Expanding Refugee Center As More Haitians Flee Homeland, N.Y. TIMES, Dec. 3, 1991, at A6.

46 Joint Task Force Guantanamo: Mission and History, JTF GTMO 10 (2018), available at

https://www.hsdl.org/?abstract&did=820673.

47 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg.

57831-57836, (Nov. 16, 2001).

48 Rumsfeld: US Will Finish Afghan Mission, Find Bin Laden, DOW JONES INT’L NEWS, Jan. 3, 2002, at 15:47.

49 Carol Rosenberg, U.S. Military Deploys to Cuba, will Build Prison, MIAMI HERALD, Jan. 7, 2002, at 1A.

50 Steve Vogel, Afghan Prisoners Going to Gray Area, WASH. POST, Jan. 9, 2002, at A1; Ellen Knickmeyer, U.S. Ships

First Batch of al-Qaida Prisoners Out Toward Guantánamo, ASSOCIATED PRESS NEWSWIRES, Jan. 10, 2002, at 19:29.

51 Joint Task Force Guantanamo, supra note 46, at 10.

52 The Guantanamo Docket, N.Y. TIMES, https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html

(last visited July 27, 2022).

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Figure 2. U.S. Naval Station Guantanamo, Detail

Source: By CRS using data from Esri, HERE, DeLorme, USGS, Intermap, increment P Corp., NRCAN, Esri

Japan, METI, Esri China (Hong Kong), Esri (Thailand), TomTom, MapmyIndia, © OpenStreetMap contributors,

and the GIS User Community, HSIP Gold 2015. Map created by Bisola Momoh, Visual Information Specialist.

The Legal Status of the Land Lease

As noted, the 1934 Treaty of Relations between the United States and Cuba repealed the 1903

Treaty of Relations but preserved the two executive agreements53 pertaining to the lease of

Guantanamo Bay made pursuant to it.54 Accordingly, the lease agreements can be modified or

abrogated only pursuant to an agreement between the United States and Cuba. As such, the

territorial limits of the naval station will remain as they were in 1934, unless the United States

abandons Guantanamo Bay (effectively ending the lease) or the two governments reach an

agreement to modify its boundaries.55 With regard to any modifications or abrogation, the

53 Executive agreements are international agreements the executive branch enters into without submission to the Senate

for its advice and consent. Legally binding executive agreements may take three forms (1) congressional-executive

agreements, in which Congress has previously or retroactively authorized an international agreement entered into by

the executive branch; (2) executive agreements made pursuant to an earlier treaty, in which the agreement is authorized

by a ratified treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the President’s

constitutional authority without further congressional authorization. RESTATEMENT (THIRD) OF FOREIGN RELATIONS §

303 (1987) (hereinafter “RESTATEMENT”); see also CRS Report RL32528, International Law and Agreements: Their

Effect upon U.S. Law, by Stephen P. Mulligan. Because the lease agreements were contemplated under both the Platt

Amendment and the 1903 treaty with Cuba, they may be regarded as congressional-executive agreements and executive

agreements pursuant to a treaty.

54 Treaty of Relations, supra note 34, arts. I & III.

55 The 1934 treaty does not appear to contemplate a partial abandonment of the territory of the naval station. Whether

the President can agree to modify the boundaries by returning part of the territory to Cuba is subject to the same

analysis that applies to the modification of the lease agreements.

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pertinent question is whether, under U.S. law, such modification or termination can be

accomplished with an executive agreement or whether it must take the form of a treaty, ratified

with the advice and consent of the Senate. Additionally, another question to consider is whether

the President has the authority to “abandon” the naval station without action by Congress.

Presidential Authority to Modify or End the Guantanamo Lease

The Constitution is silent as to how international legal agreements—such as the agreements

between the United States and Cuba—are to be amended or abrogated. The general rule of

practice is that a modification to an international agreement should be accomplished by the same

means through which the original agreement was made.56 However, this does not appear to be a

legal requirement and there is precedent demonstrating that Congress (or the Senate, in giving its

advice and consent) appears to have the authority to approve the use of a different vehicle for

modifying an international agreement, possibly depending on the subject matter of the treaty.57

The two Guantanamo lease agreements appear to have elements of both congressional-executive

agreements (authorized by the Platt Amendment) and executive agreements pursuant to a treaty

(the 1903 Treaty with Cuba incorporating the Platt Amendment). Article VII of both the Platt

Amendment and the 1903 Treaty on Relations required Cuba to lease lands for coaling and naval

stations as “agreed upon by the President of the United States.” That authority for the President to

make lease agreements without further involvement of the Senate (or Congress) did not specify

whether the President could later alter or abrogate such agreements, but such authority would

seem to be fairly implied by the treaty. The Platt Amendment, however, was effectively repealed

by the abrogation of the 1903 treaty.58 Thus, the language of the 1934 Treaty of Relations is

controlling.

As noted above, the 1934 treaty permits abrogation or modification of the stipulations of the lease

agreements only with the consent of Cuba, but does not clearly delegate the U.S. authority in this

respect to the President. The fact that these lease agreements are executive agreements implies

their amenability to alteration by means of another executive agreement, notwithstanding the

failure of the 1934 treaty to so specify. Moreover, Presidents have in the past claimed the

authority to execute the terms of treaties, including the authority to terminate a treaty or part of a

56 CONGRESSIONAL RESEARCH SERVICE, TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED

STATES SENATE, A STUDY PREPARED FOR THE SENATE COMM. ON FOREIGN RELATIONS 18 (Comm. Print 2001)

(hereinafter TREATIES AND OTHER INTERNATIONAL AGREEMENTS).

57 Validity of Congressional-Executive Agreements that Substantially Modify the United States’ Obligations under an

Existing Treaty, 20 Op. O.L.C. 389 (1996).The Office of Legal Counsel (OLC) concluded that:

It lies within Congress’ power to authorize the President substantially to modify the United States’

domestic and international legal obligations under a prior treaty, including an arms control treaty,

by making an executive agreement with our treaty partners, without Senate advice and consent.

58 Treaty of Relations, supra note 34, art. I.

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treaty,59 pursuant to the Constitution’s Take Care Clause.60 The terms of the 1934 treaty do not

permit the President to abrogate the lease without Cuba’s consent, except perhaps by abandoning

the naval station altogether (which would, under a plain text reading, modify the base’s

boundaries without affecting the lease agreements). An executive agreement with Cuba to close

the base would in effect amount to an executive agreement pursuant to the 1934 treaty and would

arguably not require the advice and consent of the Senate.61 Such an argument may prove

controversial, as the President and Congress do not appear to have reached any consensus with

respect to where the authority to modify or abrogate treaties lies.62 The judiciary has thus far

declined to resolve the question.63

It seems, however, that Congress is empowered to alter the effect of the 1934 treaty as it applies

to the executive branch. A statute passed later than a treaty is recognized to supersede the terms of

the treaty to the extent that they are inconsistent, at least as far as domestic law is concerned.64

Although not firmly established, it seems likely that Congress could override any implications

that might be drawn from the 1934 treaty with respect to presidential authority to modify the

Guantanamo lease by enacting legislation specifying that any such modification must be

accomplished with the advice and consent of the Senate or the concurrence of Congress.65 The

House Foreign Affairs Committee of the 114th Congress reported favorably on a measure to

59 OLC, supra note 57, at n.14. The OLC explained the position taken previously with respect to unilateral presidential

termination of treaties and stated that:

Assuming that the President does have the power unilaterally to terminate a treaty, it appears to

follow that he also has the authority to relieve the United States of the affirmative obligations

imposed on it by particular treaty provisions. It would not follow, however, that he had the

authority unilaterally to augment the United States’ treaty obligations.

Id. For an historical overview of the apparent accretion of treaty termination power to the President, see Curtis A.

Bradley, Treaty Termination and Historical Gloss, 92 TEX. L. REV. 773 (2014).

60 U.S. CONST. art. II, §3 (“The President ... shall take Care that the Laws be faithfully executed .... ”).

61 Where a treaty contemplates implementation by international agreement, the President may arguably implement

relevant provisions by executive agreement, which will have the same effect and validity as the treaty itself, subject to

the same constitutional limitations. See. RESTATEMENT, supra note 53, § 303 cmt f.

62 See TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra footnote 56, at 18. During the Trump Administration,

the OLC took the position that the President has exclusive authority to terminate treaties and that Congress has no

authority to interfere. OLC, Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty

(Sep. 22, 2020), https://www.justice.gov/olc/file/1348136/download. For more information, see CRS Legal Sidebar

LSB10600, OLC: Congressional Notice Period Prior to Withdrawing from Treaty Unconstitutional, by Jennifer K.

Elsea.

63 See Goldwater v. Carter, 444 U.S. 996 (1979) (plurality opinion) (applying “political question” doctrine to vacate

challenge by Members of the Senate to President Carter’s unilateral termination of the mutual defense treaty with

Taiwan). Notably, Congress had passed a sense of Congress that consultation between President and Congress should

occur prior to any change in policy with respect to the continuation in force of the treaty. 92 Stat. 730, 746 (1978).

64 See OLC, supra note 57 (citing Head Money Cases, 112 U.S. 580, 599 (1884); La Abra Silver Mining Co. v. United

States, 175 U.S. 423, 460 (1899); Alvarez y Sanchez v. United States, 216 U.S. 167, 175-76 (1910); United States v.

Stuart, 489 U.S. 353, 375 (1989) (Scalia, J., concurring in judgment); Congressional Authority to Modify an Executive

Agreement Settling Claims Against Iran, 4A Op. O.L.C. 289 (1980); see also CRS Report RL32528, International Law

and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan.

65 There is precedent for such legislation in the context of arms control treaties. Section 303 of the Arms Control and

Disarmament Act prohibits any action that would obligate the United States “to reduce or limit the Armed Forces or

armaments of the United States in a militarily significant manner” except by treaty or affirmative action of Congress.

22 U.S.C. § 2573.

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accomplish this objective.66 If enacted, the United States Naval Station Guantanamo Bay

Protection Act (H.R. 4678) would have prohibited any action:

[T]o modify, abrogate, or replace the stipulations, agreements, and commitments contained

in the Guantanamo Lease Agreements, or to impair or abandon the jurisdiction and control

of the United States over United States Naval Station, Guantanamo Bay, Cuba, unless

specifically authorized or otherwise provided by—

(1) a statute that is enacted on or after the date of the enactment of this Act;

(2) a treaty that is ratified with the advice and consent of the Senate on or after the date of

the enactment of this Act; or

(3) a modification of the Treaty Between the United States of America and Cuba signed at

Washington, DC, on May 29, 1934, that is ratified with the advice and consent of the Senate

on or after the date of the enactment of this Act. 67

The House of Representatives subsequently passed this language in Section 1099B of S. 2943, the

NDAA for FY2017.68 The measure was removed in conference and did not become law.69

Congress has previously passed legislation establishing policy with respect to the Guantanamo

leases. As part of the Cuban Liberty and Democratic Solidarity Act (LIBERTAD, P.L. 104-114),

Congress established that the policy of the United States is to be “prepared to enter into

negotiations with a democratically elected government in Cuba either to return the United States

Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually

agreeable terms.”70 The provision appears to approve negotiations by the President with a

democratic Cuban government over the possible return of Guantanamo Bay, but it does not

explicitly approve the entry into such an agreement as a congressional-executive agreement.

Moreover, it does not expressly prohibit the negotiation of lease modifications with the existing

government of Cuba.

The President’s Authority to “Abandon” Guantanamo

Under the 1934 Treaty of Relations with Cuba, the boundaries of the naval station at Guantanamo

remain as they were then established unless the “United States of America” abandons the naval

station.71 This provision raises the question whether the President can act on behalf of the United

States to order the naval station abandoned without an executive agreement or legislative

permission. At least in the absence of countervailing legislation, the President could make the

argument that abandonment of the naval station amounts to the exercise of a provision of the

1934 treaty, in accordance with the Take Care Clause. As in the case of the actions described

above, such a claim would likely prove controversial.

If the 1934 treaty is not interpreted to provide authority for the President to abandon the naval

station, whether he can do so on his own initiative depends on whether a base closure is an

executive function as either a constitutional power of the President or an authority that has been

delegated by Congress. It appears that overseas basing decisions are shared between the President

66 H. REP. NO. 114-496.

67 H.R. 4678 § 3 (114th Cong., as reported by committee).

68 S. 2943 § 1099B (114th Cong., House engrossed amendment).

69 Pub. L. No. 114-328; see H. REP. NO. 114-840.

70 § 201(12), codified at 22 U.S.C. § 6061.

71 Treaty of Relations, supra note 34, at art. III.

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and Congress.72 Consequently, the existence of such authority turns on relevant statutory

provisions, and if no statute controls, it may be elucidated through prior practice.73

Historically, Congress has taken a moderately active role in overseas base closure decisions,

while leaving a good deal of discretion with the military departments.74 Prior to closing a military

base located in the United States meeting certain size requirements, the Secretary of Defense is

required to notify Congress and wait for a certain period prior to taking action.75 There is no such

requirement for military installations located overseas.76 Consequently, it appears that there are no

statutory prohibitions against closing an overseas military installation. However, measures

enacted in national defense authorization legislation since 2011 impose practical impediments to

closing the naval station at Guantanamo by restricting the transfer of detainees from Guantanamo

Bay to the United States or to foreign countries.77

There may be an argument with respect to the President’s authority to return the naval base to

Cuba that is more or less exclusively pertinent to Guantanamo Bay. Such an argument would

emphasize that Article III of the February 1903 lease agreement recognizes the “ultimate

sovereignty” of Cuba over the Guantanamo Bay leased area and grants U.S. rights of control and

jurisdiction during its occupation.78 Casting the abandonment of Guantanamo Bay as a

recognition of Cuba’s sovereignty over the area and the end of a military occupation (Cuba’s

communist government has regarded U.S. presence at Guantanamo to be an “illegal occupation”

of its territory)79 could have implications related to the President’s power to recognize foreign

sovereigns and the territory they control, a power the Supreme Court has held belongs exclusively

to the President.80 Unless viewed as bolstered by an enumerated legislative power, a

congressional effort to foreclose such an action could be challenged as interfering in the exercise

of the President’s recognition power, at least to the extent that it would force the executive branch

72 See U.S. CONST. art. II, §2 (establishing the President as the commander in chief of federal military forces); id. art. I,

§8, (empowering Congress to “provide for the common Defence ... ;To raise and support Armies ...; To provide and

maintain a Navy; [and] To make Rules for the Government and Regulation of the land and naval Forces”). Congress

also has the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property

belonging to the United States,” U.S. CONST. art. IV, cl. 2.

73 While a survey of past overseas base closures is beyond the scope of this report, it is worth noting that overseas U.S.

military installations resting on foreign sovereign soil do so as the result of either treaty or intergovernmental

agreement. Many such installations were closed and returned to the administration of the host nation during the mid1990s at the conclusion of the Cold War. Notable examples of former installations include Naval Station Subic Bay and

Clark Air Base, the Philippines, High Wycombe Air Station and RAF Greenham Common in the United Kingdom, and

U.S. Army Base Schweinfurt in Germany.

74 See CRS Report R45705, Base Closure and Realignment (BRAC): Background and Issues for Congress, by

Christopher T. Mann.

75 E.g., 10 U.S.C. §§ 993, 2687.

76 10 U.S.C. § 2687a requires an annual report describing overseas base closures and evaluating the impact on U.S.

national security, among other things.

77 Restrictions on detainee transfers to foreign countries are set forth in Pub. L. No. 114- 92, § 1034, 129 Stat. 969, 970

(2015), codified at 10 U.S.C. §801 note. The most recent prohibition on expenditures to transfer detainees into the

United States is contained in the National Defense Authorization Act for FY 2022 § 1033, Pub. L. No. 117-81, 135

Stat. 1541, 1901 (2021).

78 See supra, note 30, and accompanying text.

79 See, e.g., Raúl Castro demands that US return Guantánamo base to Cuba, THE GUARDIAN, Jan. 28, 2015, available

online at http://www.theguardian.com/world/2015/jan/28/raul-castro-return-guantanamo-cuba-us.

80 Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II), 576 U.S. 1 (2015) (invalidating a statute that permitted

Jerusalem-born U.S. citizens to list Israel as their place of birth on their passports on the ground that it would force the

executive branch to contradict its statements declining to recognize Jerusalem as Israel’s capital).

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to contradict itself in such a matter.81 It seems that Congress’s relative inaction with respect to the

closure of foreign bases would cut in the President’s favor if such an assertion were ever to reach

a court.82

The 2016 NDAA and the Consolidated Appropriations Act, 2016 (2016 Omnibus, P.L. 114-113)

prohibited certain expenditures with respect to returning the naval station to Cuba. Section 1036

of the 2016 NDAA prohibited the use of Department of Defense funds for FY2016:

(1) to close or abandon United States Naval Station, Guantanamo Bay, Cuba;

(2) to relinquish control of Guantanamo Bay to the Republic of Cuba; or

(3) to implement a material modification to the Treaty Between the United States of

America and Cuba signed at Washington, D.C. on May 29, 1934 that constructively closes

United States Naval Station, Guantanamo Bay. 83

The provision has been extended in annual NDAAs, including most recently the NDAA for

FY2022.84

The 2016 Omnibus provided that “None of the funds made available by [Division J] may be used

to carry out the closure or transfer of the United States Naval Station, Guantánamo Bay, Cuba.”85

The provision has been included in subsequent legislation, including legislation enacted in

2022.86

Neither provision addressed the negotiation of a treaty modification to the lease agreements

regarding Guantanamo Bay. If the executive branch were to negotiate a modification of the treaty

and the Senate were to give its advice and consent, the resulting treaty could be interpreted to

override Section 1036 of the NDAA and subsequent extensions under the “last in time” rule. If

such a modification were to be made as an executive agreement (i.e., without Senate

participation), such an override would be less likely, unless perhaps the agreement were to be

deemed an “executive agreement pursuant to an earlier treaty.”87

Moreover, the restrictions cover only certain funds available through FY2022. Funds available to

another agency (e.g., the Department of State), or DOD funds authorized for appropriation in any

other fiscal year, might permit action that could ultimately lead to the closure of U.S. Naval

Station Guantanamo Bay. For example, authorizations for appropriation could be written to last

for several years (e.g., military construction appropriation authorizations can typically last for up

to three years). Some DOD funds may be obligated for a number of years (e.g., military

construction appropriations may typically be obligated for up to five years).

81 For an explanation of Zivotofsky II, see CRS Report R43773, Zivotofsky v. Kerry: The Jerusalem Passport Case and

Its Potential Implications for Congress’s Foreign Affairs Powers, by Jennifer K. Elsea.

82 See id.

83 P.L. 114-92 § 1036(a). The 2016 NDAA also required the Secretary of Defense to submit a report detailing military

implications of the Naval Station. Id. §1036(b).

84 § 1035, 135 Stat. 1541, 1901 (2021).

85 Pub. L. No. 114-113, Div. J, § 139, 129 Stat. 2242, 2685 (2015). Division J is the Military Construction and Veterans

Affairs, and Related Agencies Appropriations Act, 2016.

86 Consolidated Appropriations Act 2022, Pub. L. No. 117-103, Div. C, § 8148, and Div. J, § 140 (providing that no

appropriated funds made available “by this act” may be used “to carry out the closure or realignment” of the naval

station, with Division C containing the Department of Defense Appropriations Act, 2022 and Division J containing the

Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2022).

87 See supra note 61.

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Impact of Cuba Sanctions Laws

If the lease of Guantanamo Bay were to be terminated, the Department of Defense would face the

challenge of repatriating or disposing of U.S. property at the naval station, including permanent

improvements such as buildings. Current sanctions in place against Cuba88 could make it difficult

to give or sell any property to the government of Cuba. Section 620(a)89 of the Foreign Assistance

Act of 1961 (FAA)90 provides that no assistance under the FAA91 shall be furnished to the present

government of Cuba. Moreover, it provides that “except as may be deemed necessary by the

President in the interest of the United States, [Cuba shall not] be entitled . . . to receive any . . .

benefit under any law of the United States, until the President determines that such government

has taken appropriate steps” to provide compensation to U.S. victims of Cuba’s expropriations.92

Section 204 of the LIBERTAD Act authorizes the President to suspend these prohibitions only

upon certifying that a transition government is in power in Cuba.93 The prohibition will be

automatically repealed upon the President’s certification.94

Section 614 of the FAA95 may offer a means of furnishing assistance to Cuba without regard to

certain sanctions laws. It provides that the President may authorize assistance notwithstanding

any provision in the FAA or Arms Control Export Act (AECA) if the President determines that to

do so is important to the security interests of the United States and notifies the Speaker of the

House and the chairman of the Committee on Foreign Relations of the Senate.96 The exercise of

this special authority requires prior consultation with certain congressional committees and a

written policy justification.97

The primary authority for the disposal of foreign excess property, both real property and personal

property, is codified in Chapter 7 of Title 40, U.S. Code. Excess property is any property that an

agency has determined “is not required to meet the agency’s needs or responsibilities.”98 Chapter

7 authorizes several means of disposal of foreign excess property, including (1) return of foreign

excess property to the United States when such return is in the interests of the United States;99 (2)

88 For a background on sanctions, see CRS Report R43888, Cuba Sanctions: Legislative Restrictions Limiting the

Normalization of Relations, by Dianne E. Rennack and Mark P. Sullivan.

89 22 U.S.C. § 2370(a).

90 Pub. L. No. 87-195, 75 Stat. 474, codified as amended at ch. 32 of Title 22, U.S. Code.

91 “Foreign assistance” is defined for annual reporting purposes as

any tangible or intangible item provided by the United States Government to a foreign country or

international organization under this chapter or any other Act, including but not limited to any

training, service, or technical advice, any item of real, personal, or mixed property, any agricultural

commodity, United States dollars, and any currencies of any foreign country which are owned by

the United States Government.

22 U.S.C. § 2349. Assistance under the FAA includes foreign military sales and military assistance, including transfer

of excess defense articles. Id. § 2321j. “Defense article” can include, among other things, “any property, installation,

commodity, material, equipment, supply, or goods used for the purposes of furnishing military assistance.” Id. §

2403(d)(2).

92 Id. § 2370(a)(2).

93 Id. § 6064.

94 Id. § 6064(d).

95 Id. § 2364.

96 Id. § 2364(a)(1).

97 Id. § 2364(a)(3).

98 40 U.S.C. § 102(3).

99 Id. § 702(a).

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sale, exchange, lease, or transfer, for cash, credit, or other property;100 (3) exchange for foreign

currency or credit, or substantial benefits;101 (4) donation in the case of medical materials to a

nonprofit organization;102 or (5) abandonment, destruction, or donation of property that cannot be

disposed of by any other authorized method.103 Foreign excess property disposal authority under

Title 40 is not among the foreign assistance provisions covered by sanctions laws described

above;104 however, it must be exercised “in a manner that conforms to the foreign policy of the

United States.”105 To the extent that its exercise would benefit the government of Cuba, the

President would be required to make a determination that the national interest of the United States

would be served.106

Another possible authority for transferring buildings and other improvements on naval station

grounds is in Title 10, U.S. Code. The provision on overseas base closures contemplates transfers

of real property or improvements to real property used by the Department of Defense pursuant to

treaty, status of forces agreements, or “other international agreement to which the United States is

a party.”107 For improvements valued at more than $10 million, the Secretary of Defense is

prohibited from entering into an “agreement of settlement with a host country regarding the

release to the host country of improvements made by the United States to facilities at an

installation located in the host country” until the Office of Management and Budget has had 30

days to review the proposed settlement.108 The provision does not clearly authorize the entry into

an executive agreement of settlement with host countries, but suggests that such authority exists

elsewhere. To avoid the prohibition against assistance to Cuba in Section 620(a) of the FAA,109

the exercise of such authority to benefit the government of Cuba would require a presidential

determination that it serves U.S. interests.

Author Information

Jennifer K. Elsea

Legislative Attorney

Acknowledgments

Daniel H. Else, Specialist in National Defense, contributed to an earlier version of this report.

100 Id. § 704(b)(1).

101 Id. § 704(b)(2).

102 Id. § 703.

103 40 U.S.C. § 704(b)(3).

104 Disposal of any property that qualifies as a “munition” would still be banned under Section 40 of the Arms Export

Control Act. 22 U.S.C. §2780.

105 40 U.S.C. § 701(b)(2)(B).

106 22 U.S.C. § 2370(a)(2).

107 10 U.S.C. § 2687a.

108 Id. § 2687a(d).

109 22 U.S.C. § 2370(a)(2).

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Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

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copy or otherwise use copyrighted material.

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