Guantánamo: land without law

Brandt Goldstein
20 September 2005

My new book, Storming the Court (Scribner 2005), tells the true story of a group of law students and human-rights lawyers who took the United States government to court to free 300 Haitian refugees held at Guantánamo Bay, the US naval base on the eastern tip of Cuba, in the early 1990s.

When I began research for the book more than six years ago, I expected it would explore the complex relationship between law and politics, as well as America’s legacy as a haven for political refugees. But the Bush administration’s detention and apparent abuse of terrorist suspects at Guantánamo following 9/11 has given the narrative a new resonance. Storming the Court is now also a cautionary tale about the US government’s effort to use Guantánamo as a prison beyond the reach of any law.

Brandt Goldstein graduated from Yale Law School in 1992, served as a law clerk on the US Court of Appeals for the D.C. Circuit, and practiced law for several years in Washington, D.C.

He recounts the Yale students’ campaign on behalf of Haitian refugees in Guantánamo in his new book Storming the Court: How a Band of Yale Law Students Sued the President – and Won (Scribner, 2005).

The force of protest

America’s first detention camp on Guantánamo traces its origins to the September 1991 military coup that ousted Haiti’s first democratically elected president. In the wake of the coup, the US Coast Guard interdicted thousands of Haitian refugees who’d fled their country by boat and brought them to Guantánamo Bay.

Some of the refugees were granted asylum in the United States based on a fear of political persecution in Haiti; almost all the rest were returned to Port-au-Prince. But 300 of the refugees found themselves in legal limbo. After proving they deserved safe haven in the US, they tested positive for HIV. Rather than allow them into the country, the first Bush administration detained the ill Haitians on a remote corner of Guantánamo – and seemed prepared to hold them there indefinitely.

The justification for this measure should sound strikingly familiar. The justice department asserted that foreigners held by the US on Guantánamo have no legal rights. By this logic, the president and his subordinates were free to treat, or mistreat, the refugees however they pleased.

The resulting record is an ugly one. The Haitians were denied access to lawyers and held in leaky barracks behind razor wire. Their protests were met with harsh military crackdowns. Some refugees were confined for months in tiny pens; others languished in the naval brig. And although Guantánamo lacked the medical facilities to treat the sickest of the Haitians, federal immigration authorities refused to release some refugees who badly needed better care. As government spokesman Duke Austin explained to the media: “They’re going to die anyway, aren’t they?”

The Guantánamo HIV camp might have gone unchallenged had it not been for a group of idealistic law students at Yale. Convinced the detentions were illegal and immoral, they persuaded a young law professor and a battle-weary human-rights lawyer to help them sue the first Bush administration in federal court and demand the release of the Haitians. The result was a ferocious court battle that twice reached the Supreme Court on emergency motions and culminated in a trial in Brooklyn, New York for the refugees’ freedom. Once without allies, the Haitians now enjoyed support from the media, international medical organisations, and activist groups such as ActUp.

Following a two-week trial, the judge in the case ruled that the refugees’ indefinite confinement violated the due process clause of the US constitution. Over the sharp objections of Congressman Tom Delay and other congressional Republicans, the White House (at that point occupied by Bill Clinton) finally freed the Haitians.

Despite the controversy over today’s Guantánamo detentions – from evidence of torture to the imprisonment of apparently innocent people – little has been said about the precedent of the Haitian refugees. But the lesson from this troubling episode has been available for more than a decade. Extralegal prisons run by the White House, in secret and without accountability, lead to one thing: a morass. Innocent people are liable to get hurt. The United States undermines its most fundamental values, from individual freedom to the rule of law. And the country sacrifices the moral leadership it often relies on in its foreign policy.

(To those concerns, it can now be added that Guantánamo may well be harming the US’s strategic interests. Instead of making Americans safer in the “war on terror”, the camp in Cuba has become a rallying cry for jihadists, alienated US allies, and put American troops at risk whenever they are captured.)

Why, then, did the current Bush administration pay so little heed to the first Guantánamo prison camp? In part because the lower court ruling that the constitution applies to Guantánamo was wiped off the books. In the summer of 1993, after the court issued its opinion, the justice department made a deal with the refugees’ lawyers. The government agreed not to press an appeal, but it demanded that the judge’s decision be vacated.

The irony is that this bargain was struck by the Clinton administration. According to a former Clinton official, the president’s advisers were intent on retaining maximum flexibility for the White House when it came to Guantánamo. They were confident that they would “do the right thing” on the military base, the official said, but they did not want to be bound by law to do so. At the time, the government’s concern was evidently future refugee crises. But the uses of Guantánamo have turned out to be more wide-ranging.

The reach of law

Flash forward to late 2001. While US forces were rounding up terrorist suspects on the battlefield in Afghanistan, the Bush administration asked its lawyers to identify any legal constraints against detaining those suspects on Guantánamo. The lawyers emphasised that the Haitian decision had no binding force – and advised that detainees on Guantánamo would have no right to challenge their detention in court. A month later, the first terrorist suspects arrived in shackles at the American naval base.

In a final parallel between Guantánamo then and now, one of the lawyers involved in the Haitian case sued the Bush administration in early 2002, insisting that the terrorist suspects get their day in court. “I didn’t agree with anything those people held on Guantánamo might have stood for,” said the attorney, Michael Ratner of the Center for Constitutional Rights in New York City. “But we’re supposed to live in a democracy, not a dictatorship.”

Also in openDemocracy, an article by David Rose:

“Guantánamo, America’s war on human rights” (September 2004)

In June 2004, the Supreme Court ruled that the Guantánamo detainees have the right to contest their imprisonment. As Justice Anthony Kennedy explained in a concurring opinion, Guantánamo effectively belongs to the United States, so individuals held there, including foreigners, deserve some measure of protection under US law. Lower courts are now reviewing the detainees’ demands to be released, guided by a general observation from the Supreme Court: if certain detainees were not in fact involved in terrorism, then holding them for two years on Guantánamo without access to a lawyer “unquestionably” violates US law.

The Bush administration has since freed a number of terrorist suspects and returned others to their home countries for detention or prosecution. But it continues to hold over 500 people at Guantánamo, some of whom indisputably pose no threat to the United States. And in addition to the earlier evidence of detainee mistreatment, there are recent revelations that physicians and psychologists assisted in interrogations, arguably breaking professional ethics codes. Meanwhile, the White House is pressing forward with plans to try detainees using military tribunals that offer only limited procedural safeguards.

Fed up with the situation on Guantánamo, a number of Republican senators, including John McCain, are aiming to pass legislation that would prohibit cruel, inhuman or degrading treatment of detainees held there. And given the track record at Guantánamo, it would seem to be in America’s interests for the White House to endorse such legislation. But it does not, and so the story of the extralegal quagmire in Cuba continues.

I recently asked refugee Yvonne Pascal (not her real name), a Haitian democracy activist who was held on Guantánamo in 1992 and 1993, what she thought of the current situation there. She shook her head in disgust and reiterated her own experience. “It’s just a bad place, a very bad place,” she sighed in her Creole-tinged English. “It’s not what I thought America was about. It’s all just a lie.”

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