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December 31, 2024 - January 6, 2025
The virtue of this, advised lawyers John Yoo and Patrick Philbin of the Office of Legal Counsel, is that it gave the government a spot of land under its exclusive control that was nevertheless “foreign territory, not subject to U.S. sovereignty.”
Permanent detention was feasible, however, only if Guantánamo Bay was indeed foreign. Was it? Lawyers representing the detainees tested the matter. They filed a writ of habeas corpus, arguing that the base was a “fully American enclave,” with a shopping mall, a McDonald’s, a Baskin-Robbins, a Boy Scout contingent, and a Star Trek fan club. The idea that Cuba retained sovereignty was, they maintained, a fiction. They noted that Fidel Castro refused to recognize the lease (he made a point of never cashing the annual $4,085 checks that the United States sent) and insisted repeatedly that the navy
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This was one of those “Is it the United States or not?” questions that had dogged the empire for more than a century. The case went to the Supreme Court in 2004. To the White House’s surprise, the court ruled that Guantánamo detainees could seek justice in federal courts.
Such places may seem like bizarre vestiges of a long-ago imperialist era, but they aren’t. Small dots on the map like these are the foundation of the United States’ pointillist empire today.
Like Puerto Rico, the Northern Marianas were subject to some U.S. laws but not others. The federal minimum wage and much of immigration law were waived. The nearest Occupational Safety and Health Administration office was thousands of miles away. At the same time, for the purposes of trade, the Northern Marianas counted as part of the country. The combination was potent: a legal environment where foreign workers could toil for paltry wages with little oversight to stitch garments labeled MADE IN THE USA. Saipan functioned as a sort of standing loophole.
The Northern Marianas government and the garment manufacturers, it turned out, had hired a lobbyist to defend their lucrative arrangement.
So, for the purposes of labor law, the Northern Marianas wasn’t part of the United States. For the purposes of trade, it was. And for the purposes of lobbying regulations, it was a foreign government.
The Constitution requires that the president be a “natural born citizen,” yet it’s not clear what that means. At minimum, everyone agrees, it means the president must be a citizen from birth. But does “natural born” include those born in territories where citizenship is statutory rather than constitutional? The Supreme Court has never weighed in.
McCain was, per the 1937 statute, a citizen by virtue of his birth. But he wasn’t born a citizen, as no law made him a citizen at the time of his birth. Arguably, then, he was not a “natural born citizen” and thus not eligible for the presidency. As Gabriel Chin, the law professor who unearthed this, put it, McCain was born “eleven months and a hundred yards short of citizenship.”
