Guantánamo

  The official military account speculated that “the riots were the result of putting too much emphasis on improving the migrants’ quality of life at the expense of relaxing camp control.”79 Give a Haitian an inch and he’ll take a mile. From mid-July 1992 forward, any semblance of lax control vanished, and still the Haitians rebelled. When, by late August, nearly six weeks after the riot, some of the Haitians remained in Camp 7, their compatriots petitioned the military for their release. The military denied the request, prompting the Haitians to storm the compound and liberate the prisoners themselves. This time, when base security arrived, the Haitians set fire to their camp, prompting a still heavier military response, with more pushing, shoving, and arrests. And so the cycle of violence continued, with protests, hunger strikes, and, inevitably, more time in the brig.

  Conditions at Camp Bulkeley deteriorated so precipitously that even military officials joined in the criticism. On July 18 the head of the Atlantic Command warned that the “creation of a ‘penal’ environment within the camp presents the opportunity for heavy criticism from migrant support and humanitarian organizations. We have reached the point where such an environment stretches the margin of the interpretation of our humanitarian mission.”80 In September 1992, Admiral Paul D. Miller informed the Joint Chiefs of Staff that the health care at Guantánamo Bay did not meet the needs of HIV-positive detainees. Let’s close this chapter of GTMO history, Miller urged his superiors. That December, a departing camp commander recommended moving the HIV-positive Haitians to the United States.

  Still, the detainees languished. By January 1993, Yolande Jean and her colleagues had become so fed up with the uncertainty, forced medical treatment, and physical abuse that they began a hunger strike.81 By March, Jean herself was so despondent that she contemplated committing suicide.82

  Meanwhile, the advocates for the Haitians appealed their case to the Second Circuit Court in late June 1992. The Second Circuit had previously upheld Judge Johnson’s preliminary injunction. Now it expressed bewilderment at the government’s claim that it could do with the Haitians whatever it wanted so long as they were outside U.S. territory. Late the next month, the court issued a ruling prohibiting the refugees’ direct return to Haiti. U.S. law applied at sea, the court announced. The Refugee Act of 1980 was unequivocal on the matter of forced return.83

  The Supreme Court eventually stayed the lower court’s ruling, but still the government wasn’t satisfied. Later that summer the lead lawyer on the case announced that the Justice Department also wanted the court to vacate the Second Circuit’s ruling that the U.S. Constitution applied at Guantánamo Bay, thereby preserving Guantánamo’s place beyond the reach of law. But rather than taking the case directly to the Supreme Court, the government offered the Haitians’ advocates a deal: if they agreed to the ruling being vacated, the government would grant them what they had sought all along, namely, access to their HIV-positive clients on the naval base. There would be no need for a formal trial. Advocates for Haitian Centers Council responded that they could not accept the deal without checking with their clients first. And so they gained access to Guantánamo Bay. What they found there so deeply offended their sense of justice that they rejected the government’s offer to exchange permanent access for vacation. As a result, the legal case Haitian Centers Council Inc. v. McNary was “bifurcated” (split in two): the question of the Haitians’ rights to a lawyer would go forward in Brooklyn District Court, though not before the result of the presidential election; the question of whether the U.S. Constitution applied at Guantánamo and at sea was headed for the Supreme Court the following spring.84

  On January 14, 1993, less than a week before taking office, President-elect Bill Clinton abruptly dropped his opposition to the Bush administration policy of forcible return, thereby ensuring a trial in Brooklyn Federal Court. The next day, on January 15, the U.S. Coast Guard launched “Operation Able Manner,” a blockade of the Haitian coast by twenty-two Coast Guard cutters. One week later, the Coast Guard reported that it had “saved and repatriated” 534 Haitians in the first week of the new operation, bringing the total number of Haitians “saved and repatriated” since the new year to nearly 3,500. The INS, generally unsympathetic to Haitian asylum claims, screened in roughly one fifth of the boaters picked up in the first two weeks of the new year, de facto acknowledgment that persecution persisted in Haiti.85 In February, by a margin of 76 to 23, the U.S. Senate passed a resolution prohibiting all HIV-positive foreigners from entering the United States. If the Haitians on Guantánamo were going to get relief, it would come not from Congress but from the courts.86

  On March 2, 1993, the U.S. Supreme Court heard oral arguments in the newly renamed case Sale v. Haitian Centers Council. According to the government attorney, neither the Immigration and Nationality Act of 1952 nor the 1967 UN Protocol on the Status of Refugees was intended to have extraterritorial effect, and so did not apply to Guantánamo. Much more than a technical question of law was at stake here, the government insisted. To apply the Constitution extraterritorially would only induce more Haitians to take to the seas, thereby putting more of them in jeopardy. It was both good law and sound policy to reverse the Second Circuit Court’s ruling.87

  Meanwhile, the plaintiffs, anticipating oral argument before a court that had twice sided with the government against the Haitians by a 5–4 majority, hoped to appeal to the so-called plain language predilection of conservative justice Antonin Scalia to win a majority, however slim. In 1968 the United States acceded to the UN protocol enjoining signatories not to “return a refugee in any manner whatsoever” to a setting where his life or liberty might be at risk. In 1980 the U.S. Congress amended a statute that authorized the attorney general to “withhold deportation of any alien” specifically “within the United States” to any country where he might be at risk, to read, “the Attorney General shall not deport or return any alien” to such a place. The old qualification “within the United States” was removed; a new one, “deport or return,” was added. Plainly, the Haitians’ counsel insisted, both the international protocol and the U.S. statute were meant to apply overseas. To deny the fact was to invite a world of chaos and lawlessness, in which nations could do whatever they wanted on the high seas or at ostensibly law-free places such as Guantánamo.88

  Six days later, the plaintiffs were back in the more sympathetic surroundings of Brooklyn District Court, where Judge Sterling Johnson finally called to order the formal trial that would determine whether the U.S. Constitution protected the HIV-positive Haitians detained at Guantánamo Bay. Presented with eyewitness and video testimony describing abusive treatment of the HIV-positive detainees, as well as inadequate medical care, Judge Johnson grew incredulous at the government argument that U.S. law did not apply at Guantánamo Bay. “One of the problems I have,” the judge told an INS attorney, was the government’s contention that it had the unchecked authority “to take, kidnap, or abscond, whatever you want to call it, take a group and put them into a compound, whether you call it a humanitarian camp or a prison, keep them there indefinitely while there has been no charge leveled against them and there is no light at the end of the tunnel?”89

  One week into the trial, yet another uprising broke out at Camp Bulkeley, with detainees setting fire to their lean-tos and pelting their captors with rocks. In reward for their recalcitrance, nearly forty refugees were hauled off to the brig, including Yolande Jean, who was so weak from her hunger strike that she was barely able to walk. The camp commander, Colonel Bud Paulson, set up an impromptu court-martial at the brig, inviting the alleged agitators to confess their crimes and express remorse. Those who refused to do so received sentences of up to three months in solitary confinement. Yolande Jean remembers approaching Colonel Paulson skeptically. “You are the judge,” she murmured. “You are the lawyer. You are everything. What am I supposed to do?”90

  Months later, Judge Johnson issued his ruling in Haitian Centers Council v. Sale. The judge sided with the plaintif
fs on the essential issues before his court. The U.S. Constitution applied at Guantánamo, along with all due process protections and security against indefinite detention and unfair treatment. The judge ordered the government to let the detainees go. Judge Johnson’s ruling echoes Judge King’s ruling of thirteen years before. “The detained Haitians are neither criminals nor national security risks,” Judge Johnson observed. “Some are pregnant mothers and others are children. Simply put, they are merely the unfortunate victims of a fatal disease. The Government has failed to demonstrate to this Court’s satisfaction that the detainees’ illness warrants the kind of indefinite detention usually reserved for spies and murderers.”91

  The government referred to Camp Bulkeley as a “humanitarian camp.” The facts presented at trial suggested otherwise. “It is nothing more than an HIV prison camp presenting potential public health risks to Haitians held there.”92 Moreover, the First Amendment applied on Guantánamo, territory “under the complete control and jurisdiction of the United States government, and where the government exercises complete control over all means of delivering communications.” Indeed, the judge observed, much of the information furnished to the refugees by the government was willfully inaccurate, and represented only the narrow “viewpoint of which the Government approves.” 93 Ditto due process, Johnson ruled, quoting the Second Circuit Court. The plaintiffs “are not ‘some undefined, limitless class of non-citizens who are beyond our territory,’ they are instead an identifiable group of people who were interdicted by Americans in international waters pursuant to a binding Agreement Between the United States of America and Haiti, and who have been detained in territory that is subject to the exclusive control of the United States.”94

  The U.S. government aimed to put the Haitian refugees beyond the reach of any law. Judge Johnson refused to go along. “If the Due Process Clause does not apply to the detainees at Guantánamo, Defendants 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.”95 Nor was Johnson willing to endorse the Haitians’ indefinite detention. “Testimony revealed that the Haitians were told that they could be at Guantánamo for 10–20 years or possibly until a cure for AIDS is found.”96

  Things did not go so well for the Haitians and their counsel at the Supreme Court. On June 21 the High Court ruled 8–1, with Justice John Paul Stevens writing for the majority, that international and federal prohibitions on returning refugees to Haiti applied only to refugees already in the United States. The United States could do whatever it pleased with refugees at sea or at Guantánamo Bay. The U.S. statute had no legal bearing outside the United States, according to the Court, and both the text and the negotiating history of Article 33 precluded it from applying extraterritorially. “Although gathering fleeing refugees and returning them to the one country they had desperately sought to escape may violate the spirit of Article 33,” Stevens wrote, “general humanitarian intent cannot impose uncontemplated obligations on treaty signatories.” There was no judicial remedy for the High Court to draw on; Congress would have to pass new laws.97

  In a scathing dissent, Justice Harry Blackmun chastised his colleagues for what he deemed to be a tortuous interpretation of the law. In 1968, Blackmun noted, the United States acceded to Article 33 of the 1967 UN Protocol on the Status of Refugees, which enjoined nations from returning “a refugee in any manner whatsoever” to a place where he would face political persecution; in 1980, Congress “amended our immigration law to reflect the Protocol’s directives.” Now, suddenly, a majority “decides that the forced repatriation of the Haitian refugees is perfectly legal, because the word ‘return’ does not mean return, because the opposite of ‘within the United States’ is not outside the United States, and because the official charged with controlling immigration has no role in enforcing an order to control immigration.” The majority opinion might have been at least comprehensible had there been ambiguity in the law. But that was certainly not the case here. “The language is clear, and the command is straightforward.” That should have been the end of the inquiry.98

  In conclusion, Blackmun observed that the UN refugee convention of 1951 “was enacted largely in response to the experience of Jewish refugees in Europe during the period of World War II. The tragic consequences of the world’s indifference at that time are well known. The resulting ban on refoulement, as broad as the humanitarian purpose that inspired it, is easily applicable here, the Court’s protestations of impotence and regret notwithstanding.” Moreover, the plaintiffs claimed no “right of admission to this country.” Nor did they argue that the U.S. government had seized them illegally. They simply demanded “that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. That is a modest plea, vindicated by the Treaty and the statute. We should not close our ears to it.”99

  Looking back on “Operation GTMO” in the autumn of 1994, Professor Harold Koh, who argued Sale v. Haitian Centers Council before the U.S. Supreme Court, noted several “troubling” things. First was President Clinton’s continuation of the Bush administration’s policy of forcibly returning Haitian refugees to Haiti without an asylum hearing. Second, Clinton adopted Bush’s exploitation of the U.S. naval base at Guantánamo as a “rights-free” zone. Candidate Clinton had vehemently denounced both policies in the 1992 presidential campaign: “I am appalled by the decision of the Bush Administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylum,” Clinton remarked in May 1992. “It was bad enough when there were failures to offer them due process in making such a claim. Now they are offered no process at all before being returned.” These policies were “a blow” not only to long-recognized human rights conventions and U.S. statutory law, but also to “America’s moral authority in the world.”100

  Still, politicians were politicians. More troubling to Koh was the judiciary’s failure to act as a check on the executive branch. By denying the Haitians international and domestic legal protections, the Supreme Court simply followed the executive’s lead: it read “unambiguous language as ambiguous,” it ignored the express “object and purpose” of legal codes, it elevated “snippets of negotiating history into definitive interpretive guides,” and it sanctioned the very injustices that international treaties on refugees had been “drafted to prevent.” Cutting across political parties and branches of government, the logic of this development was nothing short of ominous. If, confronted by social and political crises, the U.S. government could deploy nonsensical semantic distinctions, tortuous misreadings of legal precedent, and claims about the existence of geographical spaces where no law whatsoever applies to set aside a universal prohibition like the refugee convention, what, Koh demanded, did this bode for other equally inviolable laws against torture or genocide?101

  9

  THE CHOSEN

  On the morning of September 11, 2001, a dead finch lay on a sidewalk outside the entrance to Bulkeley Hall, administrative headquarters of the U.S. naval base at Guantánamo Bay. To Lieutenant Norman A. Rogers, public works officer on the base, this seemed an ill omen, indeed. Just minutes before, Rogers had been down on Fisherman’s Point inspecting the desalination plant when the telephone rang. The base commander was on the line: the United States was under attack. Two passenger planes had struck the World Trade Center in New York City; a third had hit the Pentagon. A fourth was believed to have come down somewhere in the countryside outside Washington, D.C. Rogers was ordered to lock the gates to the plant and report immediately to headquarters. A native of New York State, he drove toward Bulkeley Hall with his aunt’s image running through his mind. In recent days, her office was supposed to have relocated from the towers across the Hudson to New Jersey, but he couldn’t be sure. For Rogers, as for so many New Yorkers and U.S. military personnel, the fallou
t from this day was bound to be intensely personal.1

  Rogers arrived at Bulkeley Hall just after the first tower collapsed (an event that, as a structural engineer, he had thought to be “impossible”). Among the assembled staff, there was a palpable sense of giddiness, as if everyone was itching for a fight. To Rogers, giddiness seemed out of place in the face of what were sure to be grievous losses. “Hey, guys,” he remembers saying, “fifty thousand people work in those buildings; let’s show a little respect.” Like American bases the world over, Guantánamo immediately went into lockdown. There was talk of heightened security and of the commander issuing sidearms. In fact, seated in an isolated corner of a totalitarian state, the American community at Guantánamo Bay could not have wished itself a safer location. Still, the uniqueness of the moment was reinforced when the general in charge of Cuba’s frontier guard called to pledge his nation’s solidarity. “We weren’t involved,” he assured his American counterpart. “We’ve got you covered on this side. Nobody’s coming over the fence.”2

  After a few tense days of curfews and impromptu security checks, life at the base returned to normal. For Rogers, “normal” in the days preceding 9/11 meant maintaining the base at minimal cost consistent with base security. The downsizing of Guantánamo began with the end of the migrant operations in the mid-1990s and the relocation in 1995 of the Fleet Training Group from Guantánamo Bay to Mayport, Florida. By the time Rogers arrived at Guantánamo in August 2001, most of the hard work associated with downsizing—eliminating programs and personnel—was complete. Rogers’s mandate was to identify further savings. When the U.S. invasion of Afghanistan began on October 7, 2001, Rogers could no more imagine Guantánamo playing a central role in the war on terror than he could imagine himself being asked to lead it. This was not to be Guantánamo’s moment.