Captured by Guantánamo

Harold Hongju Koh
25 September 2005

Brandt Goldstein’s gripping new book, Storming the Court: How a Band of Yale Law Students Sued the President - and Won recounts how, in the early 1990s, a group of Yale University law students and professors sued two United States presidents on behalf of 300 Haitian refugees held at the US naval base at Guantánamo Bay, Cuba.

As one of the professors who brought that case, like most Americans, I first heard about Guantánamo through the popular folk song Guantanamera (“The Girl from Guantánamo”) and Jack Nicholson’s unforgettable performance (“you can’t handle the truth!”) as a Guantánamo naval commandant in Rob Reiner’s film A Few Good Men. But when we started the Haitian refugee litigation in 1992, I never dreamed that I would spend much of my next thirteen years captured by Guantánamo. How did Guantánamo become so much a part of my life, and of America’s foreign policy?

Harold Hongju Koh is professor of international law at Yale Law School. He served as assistant secretary of state for democracy, human rights and labour in the Clinton administration. In 2003 he delivered the John Galway Foster lecture in London; an extract was published in the Economist (“Rights to remember”, 30 October 2003).

An interview with Harold Hongju Koh as part of the Institute of International Studies, University of Berkeley’s “Conversations with History” series is here.

Brandt Goldstein tells the extraordinary story of 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).

A campaign in the law courts

In 1990, former Catholic priest Jean-Bertrand Aristide became Haiti's first freely elected president. But less than a year later, he was ousted by a military coup and the Haitian paramilitary launched a brutal campaign of killings, torture and arrests against his supporters. As boatloads of refugees began fleeing Haiti, the first Bush administration responded with a policy whereby the Coast Guard would "interdict" fleeing Haitians on the high seas and quickly "screen" them aboard boats, bringing to the United States only those few "screened-in" Haitians found to have "credible fears" of political persecution.

As refugee numbers swelled, the administration shifted to a new policy: interdiction and offshore detention of the Haitians in camps hastily erected at the forty-seven-square-mile US naval base in Guantánamo, an area slightly larger than Manhattan. The United States occupies that area under a unique, perpetual lease agreement entered with Cuba in 1903, which provides that "the United States shall exercise complete jurisdiction and control over and within such areas." After intense litigation in which I participated, in early 1992, the Atlanta federal court initially accepted the US government's arguments that Haitians held outside the United States had no rights to challenge the screening process, and the US Supreme Court declined to hear that claim. That decision led the Yale law students described in Storming the Court, Michael Ratner of New York's Center for Constitutional Rights, and myself to file suit in Brooklyn federal court against the US government on behalf of screened-in Haitian refugees and several Haitian service organisations. Our initial claim was that lawyers and clients had constitutional rights to speak to one another before the clients were returned to possible death or persecution in Haiti. We won preliminary court relief, requiring that the Haitians be afforded counsel before repatriation to Haiti.

But in May 1992, as large numbers of Haitians again began to flee, the United States policy shifted to a policy of deliberate direct return of Haitian refugees to Haiti, in blatant violation of the United Nations Refugee Convention (1951) and the US’s Immigration and Nationality Act (1952). We quickly challenged this policy in court as well, and won a New York federal appeals court ruling against it. Amid this frenzy, then-presidential candidate Bill Clinton began voicing his opposition to what he called the Bush administration's “cruel policy.” We therefore chose to delay Supreme Court review until after the November 1992 election, to give president-elect Clinton time to abandon both the then-President Bush’s Haitian policies – direct return and Guantánamo internment. Although Clinton triumphed, just before taking office he abruptly reversed course and announced that he would maintain both Bush policies – in court, the government even adopted the Bush rationale that the Haitian detainees had no legal rights on Guantánamo.

In the hearings described in Storming the Court, we continued our lawsuits, eventually losing our Supreme Court challenge to the direct-return policy, but securing rulings in the New York federal courts that the less than 300 Haitian detainees on Guantánamo were being denied their constitutional rights. US Judge Sterling Johnson memorably wrote, "If the Due Process Clause of the U.S. Constitution does not apply to the detainees at Guantánamo," the U.S. Government "would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin."

By fall of 1994, the Clinton administration responded to public outcry by sending military forces to restore President Aristide, allowing most of the Haitians on Guantánamo to return home.

A new round of litigation

At that point, I thought that I was finally done with Guantánamo. But a new Cuban refugee crisis was brewing. In July 1994, Fidel Castro announced that he would permit persons seeking exodus to leave Cuba, and in the next few weeks, more than 30,000 Cuban refugees took to the high seas on makeshift rafts. When President Clinton ordered the Cuban rafters taken to Guantánamo, a group of Cuban-American lawyers from Miami asked me to join them in a new suit in the Miami federal court challenging this policy as well.

The appeals court in Atlanta eventually rejected our claim, holding - contrary to the New York court rulings - that these Cuban migrants were without legal rights cognisable in the courts of the United States. And so I found that my students and I had helped generate two opposing lower federal court rulings: a New York ruling that Guantánamo detainees had legal rights; and an Atlanta ruling holding that they did not. But when would the US Supreme Court ever resolve that tension? Shortly after I arrived in the Clinton administration as a human-rights official in 1999, I opposed a plan to bring Kosovar refugees to Guantánamo, reasoning that Guantánamo detention had already proven to be both bad policy and bad law. But after 11 September 2001, the Bush defense department overrode similar advice and chose to bring hundreds of detainees held in Afghanistan to Guantánamo, with no apparent exit strategy. Over the next four years, Guantánamo became a centre of international controversy and a stain on America’s human-rights reputation.

Also in openDemocracy about Guantánamo and the legal challenges to US government policy:

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

Brandt Goldstein, “Guantánamo: land without law” (September 2005)

Brandt Goldstein, “Storming the Supreme Court: a students’ odyssey” (September 2005)

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More intense Guantánamo litigation ensued, with many of us involved in the original Haitian cases – including Michael Ratner, myself, Professors and (former Yale Law School students) Michael Wishnie and Neal Katyal, and the current incarnation of our Yale Human Rights clinic – filing briefs and giving legal advice. In the Rasul v. Bush judgment of June 2004, the Supreme Court finally held that alien detainees on Guantánamo have a right to file writs of habeas corpus to challenge their detention.

Justice Stevens wrote that the detainees’ “allegations that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’”

Although this wording seems unambiguous, to this day, the Bush administration still denies in ongoing lawsuits that alien detainees on Guantánamo have any meaningful rights under US law.

At the time of writing, new habeas corpus cases are “storming the courts,” working their way back to the US Supreme Court to clarify this issue. And so, like America and the world, those of us lawyers who first began working on this issue in the early 1990s seem destined to spend another round of lawsuits captured by Guantánamo.

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