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Storming the Supreme Court: a students' odyssey

About the author
Brandt Goldstein is an attorney and author of Storming the Court: How a Band of Yale Law Students Sued the President - and Won (Scribner, 2005). He 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. His articles have been published in The New York Times Magazine, Slate, and elsewhere.

As the motel van motored toward the Air Force base in the predawn darkness, Mike Wishnie grew tense. On a telephone call the day before, the government had clashed with Yale law professor Harold Koh over every aspect of the trip, and Mike was convinced the military was going to do all it could to thwart the eleven-person team of lawyers, students, and translators. But to his shock, everyone from the base’s guardhouse security official to the people at the check-in counter proved eerily agreeable. It appeared that nobody on the base cared what the Yale people were doing, or even knew who they were.

Then, however, the government lawyers arrived. To Mike, they all seemed to be glowering. The group included Allen Hausman, a career Office of Immigration Litigation (OIL) attorney, along with a lawyer in uniform from the military’s Judge Advocate General’s Corps (JAG) and a couple of younger attorneys from Justice. “Close-the-border freaks,” Mike later called them. “Their attitude was ‘Fuck the immigrants.’ And they were pissed.” After a few cold introductions, the two teams were directed to a hulking military transport plane waiting in the early gray light.

Also in openDemocracy, Brandt Goldstein’s assessment of how the incarceration of Haitians in Guantánamo prefigures the use of the base for suspects in George W Bush’s “war on terror”:

Guantánamo: land without law

Click here For a chronology of the Yale students’ campaign

They hiked up a ramp into the gaping, unfinished cabin. Fold-down seats ran along the sides of the aircraft, facing inward, with parachutes above them. Mike buckled himself in with the four-point restraint belt, and minutes later, they roared down the runway. The bumpy two-hour flight, thunderously loud, made him nauseous, but he was intent on showing no sign of weakness because he thought Hausman was watching him. Less than one hundred miles south of Key West, the plane banked into a tight arc to avoid Cuban airspace, then touched down on Guantánamo Bay’s leeward side, which was separated from the main base by a wide stretch of bright blue water.

Queasy, Mike wobbled out into the warm, humid air, along with fellow student Sarah Cleveland and Robert Rubin, the San Francisco lawyer who’d come up with the memo from Grover Joseph Rees, general counsel of the Immigration and Naturalization Service, revealing that a number of the Guantánamo refugees had “a communicable disease of public health significance”. Barren hills rose in the distance and GIs working on the tarmac cast long shadows in the morning sun. Wishnie felt as if he were heading into combat.

A military escort arrived to take the Yale team to its quarters, but Rubin cut him off. “We can’t do that right now,” he said. “We’re on a tight time schedule and the plan you’re describing is going to take -”

“This is a military base,” snapped an OIL attorney, “and we’re going to stick with military procedure.”

The two men were soon shouting at each other, and Mike grew suspicious. The previous afternoon, OIL had claimed confusion about whether the Guantánamo flight was leaving from Maryland or somewhere in the Carolinas. The Yale delegation had been forced to wait at LaGuardia Airport in New York until the last commercial flight of the evening. Now the team had reached Guantánamo, but with the flight home just thirty hours away, OIL seemed intent on wasting as much time as possible.

Rubin finally agreed to a quick luggage drop-off and everyone piled into a military van. Wishnie was expecting to see tanks and troop carriers along the way, but instead, they passed drab office buildings and warehouses. The Justice Department’s complaints about base security, like the supposed uncertainty about the flight, seemed like a sham to him.

Back at the airfield by late morning, the team was directed to two rooms on the second floor of a building near the hangar. “You can’t go anywhere else,” Allen Hausman declared. “You stay here and the bathroom. That’s it. And one other thing: we consider all personnel on this base to be our clients, so you can’t talk to anyone about anything.”

Why, Mike wondered, was the government so paranoid? What was everyone trying to hide?

Growing frustrated himself, Rubin asked where the refugees were.

“We haven’t sent for the migrants yet,” said a military official. “We didn’t know when you’d be here.”

Rubin’s face went dark. “We gave you a list of our clients’ names two days ago,” he said, trying to remain calm.

“Well, no one told us,” the official said.

“Under the court order,” Rubin countered, “you were responsible for making them available. We’d appreciate it if you would do that immediately.” The hours ticked away, Mike anxiously checking the time. It was mid-afternoon before the official at last reappeared. “The migrants don’t want to come,” he announced, handing Rubin a note in English from the refugees. The team crowded around to read it.

“MRs lawyers,
We say Hello To you all and the name of Jesus Christ. We very Please to meet your. Reason why we don’t want feel like to come so we’re afraid to trust those people. we Please to do us a favor to call the Juge see if they could give your chance to come and the camp to talk to us as your come to defend us. thanks your. God blest your. Please do your best For us. Sign. Frantz Guerrier.”

“My God,” Rubin murmured. “They think this is some kind of trick.” He looked at the official. “We have to go to the camp,” he said.

The JAG lawyer cut in. “I’m sorry, sir, but we can’t let you do that,” he said.

“Why not?”

“Military security. We also can’t guarantee your safety.”

“Forget our safety,” Rubin said, his voice sharp. “We have a federal court order that grants us the right to meet with our clients, and one way or another, we’re going to talk to them. If you can’t bring them over here, we’re going over there!”

The JAG lawyer’s face turned hard. “You’re a civilian on a military base, sir, and we are not compromising security.”

With the afternoon slipping away, Rubin at last convinced the government to let one of the Yale team’s translators, a Haitian American advocate named Johnny McCalla, cross the bay to the refugee camp.

It was almost dinnertime when he returned. Trailing behind him were several small Haitian men in flip-flops. They scanned the room, quiet and tense. It had been nearly impossible to coax them onto the ferry, McCalla reported. They thought he was a U.S. operative scheming to take them back to Haiti – and it hadn’t helped that “McCalla” happened to be the name of Guantánamo’s main refugee camp.

Mike and Sarah joined Rubin as he introduced himself to the Haitians. Rubin had dealt with refugees from many countries and knew it usually took time for them to become comfortable with an American lawyer. But he didn’t have that luxury. With McCalla translating, he hurriedly tried to explain the lawsuit, the discovery process, the court hearing.

The Haitians stared silently at Rubin, then turned back to McCalla – and lit into him. Fingers were pointed, voices raised. Mike didn’t have to speak the language to know things weren’t going well. Rubin tried again, but it only produced another fusillade from the refugees. Finally, McCalla held up his hands for quiet.

“Despite what you might think,” he told them in Creole, “we’re not military agents. We have nothing to do with the U.S. government, but there’s little else we can do to prove it. We came down here at great cost to ourselves, and we’re trying to help you. But if you’re not going to listen, if you don’t want to work with us, that’s fine. We’ll all just leave. It’s up to you.”

A few minutes later, Mike was seated beside Frantz Guerrier, a slight man with a goatee and smudged dress shirt. His serious, guarded look suggested he’d been through a lot. Mike had a long outline of questions to cover with Guerrier, and was trying to explain himself when the refugee interjected.

“Avan nou kòmanse, mwen vle poze w yon kesyon.”

“Before we start, I want to ask you a question,” repeated the translator, a Brooklyn nurse named Evelyne Longchamp. “Your military has told me that I have HIV. Is this true?”

Mike froze. He’d understood from Sarah Cleveland that AIDS might somehow be involved in the case, but this was not what he’d expected. He paused and then looked to Longchamp. She leafed through Guerrier’s medical file, studying charts and reading notes.

“He’s taken the blood tests,” she told Mike. “The results are here” she paused.

“Looks like they’re positive.”

Longchamp spoke to Guerrier in Creole, gesturing to the file. Guerrier fell silent.

After a long moment, he asked Longchamp something. She turned to Mike. “He wants to know if we think the lab results are real.”

Off balance, Mike struggled for what to say. He didn’t know that much about AIDS, but understood that even with treatment, most people died within a few years of the diagnosis. He guessed that Guerrier’s question was a sign of desperation, a man looking for any reason to avoid the truth. Mike didn’t understand the deep Haitian mistrust of military authority; he didn’t know that some refugees even demanded the American soldiers taste the food served to them.

“Well,” Mike stammered, “Evelyne’s an experienced nurse and there’s nothing here to make us think the record’s false.” He paused. “Anything’s possible, I guess. They could have used someone else’s blood to make it look more plausible.”

Guerrier sat motionless, staring at the table. Mike waited, then cleared his throat. After a few moments of silence, he suggested they start talking. He felt terrible but didn’t know what else to do. There wasn’t much time, and he had a lot of ground to cover if he was going to be of any help.

Guerrier nodded, then unfolded a crinkled piece of paper.

“I want to make a statement first,” he said, Longchamp translating. “There are many others in the camp in my situation,” Guerrier read. “I have come here as a leader of the Association of Haitian Political Refugees, but I am no better or worse than the others. This meeting is not for me. It is for all of us.”

Mike was surprised – and impressed. He had met with a lot of clients through his clinic work, but he’d never seen anything like this.

Guerrier then told his story in a flat, matter-of-fact voice. A dentist from Port-au-Prince, he’d supported the Haitian president Jean-Bertrand Aristide, but his brother was the real democracy activist. After the coup which overthrew Aristide, he said, soldiers had torched Guerrier’s dental clinic when they couldn’t find his brother. His mother and his child were in the basement and had died in the blaze. Weeks later, his wife had been kidnapped and killed. He’d fled Haiti on December 24, 1991, and was picked up by the Coast Guard on Christmas Day.

Guerrier’s experience on Guantánamo had been one of confusion and fear. After three weeks on the base, he was screened in and told he was heading for the United States to file for asylum. But a month after taking a blood test, he was still waiting to leave. There were rumours about AIDS, and when the military announced further blood tests were necessary, Guerrier turned suspicious.

Doctors had taken his blood by force a second time, he said, and he’d been told he was HIV positive. But Guerrier didn’t believe it. He figured he’d been singled out for forming a group to protest the refugees’ confinement.

His worries had turned to panic when a soldier said his “lawyers” were coming to see him. Though a priest had helped him fax a note to New York seeking assistance, he’d never heard a word about lawyers. All he knew was that when people left the camp, they were returned to Haiti. Sensing a plot, Guerrier had sent over the message in English earlier that day, pleading for the attorneys, if that’s what they really were, to come to the camp.

As he talked, Guerrier grew more animated. He described mass chaos, rough treatment by soldiers, the use of a punishment compound. And now, Guerrier said, the government was pressing people with positive HIV tests to go through a second review of their asylum claims. He believed it was a subterfuge to send him home, and he urgently wanted Mike’s advice. What should he do?

This was it, Mike thought. This was what the other students had been talking about – the final asylum hearings without lawyers.

Mike offered the same opinion that Robert Rubin and Sarah Cleveland were giving to other refugees in the room. It’s our view, Mike told Guerrier, that the government can’t force you through a final asylum hearing without us here to represent you. You shouldn’t have to do it. That’s what we’re fighting for in court. Guerrier gave him a relieved nod, and finally, for the first time, seemed to relax a little.

Mike spoke with several more refugees that evening, all as frightened and bewildered as Guerrier. They, too, described threats, intimidation, even physical abuse. Mike remained quiet as he listened, but inside he was boiling. While representing his clients at Yale, he’d battled many different defendants, from acrimonious landlords to vindictive businesses. But he had never encountered, as he later recalled, the “terrible things our own government can do – and in such stark, concrete terms.”

The Haitians went to sleep on cots in the adjoining office, but Mike stayed up all night with Robert Rubin, pounding out declarations for the refugees to sign in the morning. The next afternoon, he watched helplessly as the soldiers led Frantz Guerrier away. When Mike boarded the plane back to the United States, exhausted and still fuming, he vowed that somehow or other, he was going to get him released.

Playing high-speed chess in the courts: a chronology

Brandt Goldstein’s book How a Band of Law Students Sued the President – and Won tells the full story of the Yale students’, professors’ and human-rights lawyers’ legal campaign on behalf of 300 Haitian refugees detained in Guantánamo in the early 1990s.

These are some of the legal highlights of the case:

Spring 1992:

  • Thousands of Haitians who have fled their homeland by boat to escape a military coup are in detention at the American naval base at Guantánamo Bay, Cuba. They seek asylum in the United States, but most are being sent back to Haiti. Human rights lawyers in Florida have filed a lawsuit to halt the repatriations (Haitian Refugee Center v. Baker), but after a heated legal battle, a federal appellate court throws out the case.
  • The Supreme Court refuses to hear Baker, letting stand a ruling that the refugees have no rights because Guantánamo is not part of the United States. Convinced the decision is wrong, law students at Yale approach their professor, Harold Koh, about bringing a new case to save the refugees.
  • Koh and his students file suit (Haitian Centers Council v. McNary) against the government in federal court in Brooklyn, New York, arguing that the Haitians are entitled to lawyers during their asylum interviews because Guantánamo is controlled by the United States. Judge Sterling Johnson, Jr. issues an emergency order to halt the return of refugees to Haiti and grants Yale access to Guantánamo.
  • The government takes an emergency appeal to the Second Circuit Court of Appeals (the federal appellate court in Manhattan), demanding the right to continue returning Haitians – and to bar the Yale team from Guantánamo. The appeal is denied.
  • The government then appeals to the U.S. Supreme Court, resulting in a 5-4 decision to overrule the appellate court and “stay” (suspend) Judge Johnson’s order for an interim period. With Yale barred from the base, the government immediately resumes repatriating the Haitians. One of Yale’s clients is beaten in Haiti after his return.

Summer 1992:

  • The Second Circuit Court of Appeals ultimately reviews Judge Johnson’s order and agrees that the refugees are protected by the Constitution’s due process clause and therefore entitled to lawyers. The Supreme Court’s temporary stay is dissolved and the Haitians on Guantánamo may not be returned to Haiti before making their claim for asylum with Yale’s assistance. This decision is a landmark, for no higher court has ever before ruled that the United States Constitution applies on Guantánamo.
  • The first Bush administration announces it will no longer bring fleeing Haitians to Guantánamo, but instead return them en masse to Haiti – without determining whether anyone has a claim to asylum.
  • The Yale team files a new suit (also called McNary for legal reasons) in district court before Judge Johnson, this time challenging the government’s new return policy. Judge Johnson rules for the government, citing a technicality in treaty law, but calls the Bush policy “unconscionable.”
  • Koh and the students appeal Johnson’s decision to the Second Circuit in Manhattan. The court sides with Yale, barring the Bush administration’s direct return policy.
  • The government seeks another emergency stay at the Supreme Court, and the justices rule for the government. The direct return policy may now continue at least until full arguments before the Supreme Court, which will not take place for many months.

Fall/Winter 1992:

  • With the direct return policy still in effect and no more Haitians coming to Guantánamo, the base empties out until only 300 men, women, and children are left. These refugees have passed a preliminary screening for asylum, but then tested positive for HIV and are barred from the United States by federal regulation. Among them is Yvonne Pascal, a torture victim and one of the book’s protagonists.
  • The original McNary lawsuit is set for a late October trial in Brooklyn. Judge Johnson will decide whether the HIV-positive refugees are entitled to lawyers to represent them in their final asylum hearings on the naval base. The second case – challenging the legality of the direct returns – will be heard by the Supreme Court in the spring.
  • In early October, Yale asks that the Brooklyn trial be postponed until after the presidential election because candidate Bill Clinton has promised to free the Guantánamo Haitians – and throw out the direct return order – if he wins.
  • In December 1992, the Yale team lobbies high-level transition officials to make good on the president’s campaign promises to the Haitians.
  • In January 1993, President-elect Clinton reverses his position on the refugees, adopting the Bush administration’s direct return policy. His subordinates also refuse to free the Haitians on Guantánamo. Yale now has no choice but to fight both cases in the courts.

Spring 1993:

  • The Supreme Court hears the arguments against the direct return order in March 1993, with a former Bush administration lawyer defending the Clinton White House.
  • Five days later, trial goes forward before Judge Johnson in the Guantánamo case. Rather than focusing on access to lawyers for the Haitians, Yale now demands the immediate release of everyone still held at the naval base.

Summer 1993:

  • On June 8, Judge Johnson issues his final decision, ordering all the refugees released. He agrees with Yale’s argument that key parts of the Constitution and other American laws apply on Guantánamo. (The case is now called Haitian Centers Council v. Sale; the name has changed because McNary is no longer head of the Immigration and Naturalization Service.)
  • The White House decides not to appeal the decision, and the Haitians are freed. Clinton officials later admit they wanted Judge Johnson’s ruling for political cover, knowing that freeing the refugees might be politically unpopular.
  • On June 21 the Supreme Court hands down its decision in the direct return case (also called Sale now). The justices rule 8-1 in favor of the President’s power to return fleeing refugees directly to Haiti. The direct return policy continues.
  • In August 1993 the Clinton administration changes course in the case and appeals Judge Johnson’s decision. This will have no impact on the refugees already in the U.S., but is intended to prevent the case – which holds that the Constitution applies on Guantánamo – from becoming a precedent that lawyers can rely on in future lawsuits.
  • Convinced the Supreme Court would ultimately rule for the government if the case went that far, Yale agrees instead to let the lower court decision be vacated (in exchange for a partial payment of Yale’s massive legal costs). Judge Johnson’s decision that due process applied on Guantánamo is now gone.
  • In 2004, in the case of Rasul v. Bush, the Supreme Court finally faces the question of whether American law applies on Guantánamo. The court rules that it does, affirming the argument that Yale had made more than a decade earlier.

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