by Andy Lamey
Daugaard stepped outside and tried to pull herself together. It was the second time she had cried on the trip: the first had occurred back at the hangar, when she had been overcome with emotion at meeting the Haitians for the first time. Now here she was, bawling again, on the trip that was supposed to be her big professional debut. What was I thinking? she asked herself. I’m the weak link in this chain. I’m the woman. I’m young. Very obviously not a lawyer. And on top of everything else, now I’ve cried like a baby …
Daugaard was sitting on the ground contemplating her failure when she felt a hand on her shoulder. She looked up to see the wrinkled face of a middle-aged Haitian woman.
“Come, come, come,” she said softly in English, before leading Daugaard back inside to sit her down. The refugees had reorganized themselves into a huddle and looked at Daugaard expectantly.
“We’re ready to talk about the case now,” one of them said through the translator. “We’re going to trust you because if you hadn’t been sincere, then what we said wouldn’t have hurt your feelings, and you wouldn’t have cried.”
Rather than a sign of failure, Daugaard realized, her tears had marked the possible beginning of a real relationship. (It was a realization, Daugaard says, “that has been very useful in subsequent professional life, every time I haven’t behaved exactly like a standard lawyer.”)
“Right,” she began. “Let’s talk about the case …”
Elsewhere on the base, other members of the team were also trying to break down the wall of mistrust. One of them was the Yale group’s lead translator, a Haitian American named Ronald Aubourg. Aubourg worked for the National Coalition for Haitian Refugees, a New York organization that was formally a plaintiff in the lawsuit. Aubourg had been personally concerned about the Guantánamo situation ever since a refugee called his office and give a harrowing account of life at the base, describing rough treatment by the guards and worms in the Haitians’ food. Upon arriving at Guantánamo, Aubourg saw that he actually knew several of the refugees: one was a cousin, while another had grown up in his old neighbourhood back in Haiti. Yet it was Aubourg whom the refugees singled out for constant needling. “You’re working with these people?” the Haitians would say to him in Creole, referring to the legal team. “These people are a joke. They’re not going to do a damn thing for us except turn around and leave.”
Aubourg could understand the Haitians’ wariness. In Haiti, the version of reality put forward by the military, politicians and most other authorities is usually a lie, a cynical distortion of events intended to prevent anyone in power from having to take responsibility for the country’s corruption and injustice. The refugees were thus only exercising the same survival skill—suspicion—that had allowed them to successfully navigate Haiti’s life-and-death political struggles. At the same time, however, Aubourg was frustrated by the refugees’ attitude. Not only was it counterproductive, but he felt the sincerity of Ratner, Koh and the others was obvious to anyone who looked.
“I was hurt,” Aubourg says. “When I met Harold and Michael … we clicked. I believed that these folks would get my people out of Guantánamo, and that had carried me throughout the whole case. So I told [the refugees], ‘No, the lawyers are here to help you.’ ”
The Haitians refused to listen. Instead, their hectoring only grew more intense. After the lawyers had returned to the main hangar from their separate meetings, Aubourg found himself drawn into an argument with a group of younger refugees. If Aubourg was so committed to helping them, they challenged him, why didn’t he come back to the camp and see for himself how bad it was? Why didn’t he actually do something, instead of offer more empty talk? Aubourg knew that if he did so and was caught, the entire legal team could be kicked off the base. Yet he felt he had no choice but to accept the refugees’ dare.
The Haitians had been brought to the hangar on a yellow school bus that ran back and forth from the camp. Aubourg put a towel on his head, as the refugees did to stave off the heat, and got on the bus beside a Haitian woman, making it appear as though he was her husband. Aubourg remembers looking in the rear-view mirror and exchanging stares with the female solider who was driving. To Aubourg’s horror, he realized he had exchanged a few words with her before the hangar meeting. Yet rather than say anything, she simply continued driving. Aubourg believes it was because she was African American and privately objected to the way her government was treating other black people.
At the camp, Aubourg walked around and saw its foul conditions first hand. As he did so, a group of refugees became excited and began to run after him. Aubourg shooed them away to avoid attracting attention to himself, but not before noticing the smiles on their faces. A sign, he realized, that he had earned their respect.
After Aubourg made his way back to the hangar Koh and Ratner angrily told him he had jeopardized their access to the base. But to Aubourg’s mind it had been worth it. “That move brought about some trust that the group was legitimate,” he says. “It paid off [when] some of them came back and said, ‘If one of you didn’t do that, we probably would still be hostile.’ ”
Just how much it paid off may have become apparent the next day, when one of the most suspicious refugees stood up during another meeting to make a public statement. “My name is Harold Michel,” he said. “Last night an angel came to me in a dream. That angel told me to trust the lawyers. I share my name with the two lawyers here, Harold and Michael. That is a sign I should trust the lawyers.” After that it was as if a dam had burst. A deluge of stories issued forth from the Haitians: about what they had run from; relatives they feared had died; their constant thoughts of suicide.
Later, Lisa Daugaard speculated that Harold Michel’s remark about an angel was actually a reference to Ronald Aubourg. In her view, what had inspired Michel was not some otherworldly messenger. It was the sight of a truly free Haitian, one whose spirit Guantánamo could not contain.
During their last night at Guantánamo the lawyers had a final meeting with Michel Vilsaint and several other camp leaders. It confirmed what they had been told throughout the group meetings: the Haitians would turn down the government’s offer. The refugees were not interested in winning the right to have lawyers present at their second interviews. They were interested in being released from Guantánamo and in going anywhere other than back to Haiti. That would now be possible only if Bill Clinton won the election, and so Vilsaint and the others would hold out for a Democratic victory. But Vilsaint had a question. What would happen, he asked the lawyers, if Clinton lost?
Lisa Daugaard answered: “I want to promise you that we will try to develop an argument that will somehow lead to your release.”
Koh quickly corrected her: “Strictly speaking, our case is about whether or not you can gain access to lawyers.”
At best, Koh was telling both Daugaard and the refugees, the case was an indirect way of keeping the pressure on the government. But the refugees shouldn’t expect—and the lawyers couldn’t promise—anything more than that.
Daugaard was upset, and she and Koh got into an argument in front of their clients, which culminated in Koh curtly dismissing Daugaard (“Just stop talking,” he snapped). To Daugaard’s thinking, Koh was being high-handed in not taking her idea seriously. Moreover, the lawyers had a responsibility to follow the wishes of their clients. And the Haitians had been saying the same thing throughout their entire time at Guantánamo: get us out of here.
“Harold was very removed from the on-the-ground legal stuff that we had been doing that strongly suggested that we could win a case [involving release],” Daugaard says. “Instead, he was paying a tremendous amount of attention to the political dynamic.… His plan was that Clinton was going to get elected and we were going to control the Clinton administration’s immigration agenda and so we wouldn’t be litigating the issue.”
For his part, Koh believed Daugaard was giving false hope to people who very much did not need their expectations dashed. It was not simply an accident,
he felt, that the lawsuit had come to revolve around the issue of access to lawyers. There were solid legal reasons for that. What’s more, Daugaard had risked the refugees’ confidence in the legal team by publicly contradicting him when they needed to present a united front.
The lawyers and refugees had one last group meeting in the hangar. The Haitians sang songs and presented the Americans with a painting of the scales of justice attempting to break loose from Haiti’s violent past. Afterwards, the legal team clambered into a van to be taken back to their military quarters. Koh and Daugaard, however, were both still angry. In Daugaard’s words she “sulked” in the back of the van, saying nothing. Koh, for his part, revealed how upset he was when he stopped the van in front of the base McDonald’s to get something to eat, and realized it had just closed.
“I can see seventeen Big Macs just sitting there,” Koh yelled, kicking the glass. “I’m here under the authority of a federal judge! What do you think Judge Johnson’s going to think when I call him!”
Daugaard felt her blood boil even more after Koh disappeared inside and re-emerged triumphantly holding several bags of Big Macs.
“They opened the door and gave him the damn food. I was so unhappy with him, it was just pathetic.” Given her anger with him, any triumph by Koh was only cause for further irritation.
Daugaard and Koh reconciled later that night. But their argument highlighted the larger challenge of the team’s sprawling project, namely that of keeping the various aspects of the case—the legal side, the political side and the human refugee side—held together in one unruly whole.
After returning the United States, the legal team formally rejected the government’s offer. Their clients had decided: it would be all or nothing.
A month later, students were gathered in the family room of Harold Koh’s house in New Haven. After ordering pizza and eating a cake his wife had made, they settled in to watch the election returns. When the networks announced Clinton’s victory, everyone let out a triumphant shout of joy. “We were euphoric,” Elizabeth Detweiler says. “We thought this would mean we wouldn’t have to file our court brief, we thought this would mean, more importantly, that the camp would be closed down … The need for the litigation had fundamentally changed, and a lot of it would become moot.”
Koh and Ratner received congratulatory phone calls from human rights and refugee advocates around the country. The students got on the phone to Guantánamo, where the joy was even more intense. When Michel Vilsaint tried to speak with the students, his voice was drowned out by cheers in the background. “Clinton! Clinton! Miami! Miami!”
Right away, the Yale team stepped up their political lobbying. The number of contacts they now had among future Clinton administration officials was extraordinary. As Koh puts it, “One great thing about Yale Law School is this network of young movers and shakers, so there was almost no one in a position of power who we couldn’t get to without one or two degrees of separation.” Koh and Ratner knew the head of Clinton’s Immigration transition team, and two of the outside lawyers working on the refugee case were on the team themselves. Various lawyers on Team Haiti knew members of Clinton’s Health and Justice transition teams, the head of the Democratic National Committee, two lawyers who would serve as solicitors general under Clinton, Clinton’s White House counsel, his personnel director and his attorney general. Before Clinton’s inauguration, virtually his entire incoming administration was barraged with information about Guantánamo and interdiction and pleas to end Bush’s policies.
In spite of the intense lobbying effort, Clinton was slow to act. After several weeks went by with nothing happening, two refugees tried to kill themselves. In mid-November, two Team Haiti lawyers, Joe Tringali and Lucas Guttentag, led a new legal team to the base. In Tringali’s words, it was “a counselling visit,” during which the lawyers would try to reassure the Haitians and keep their spirits up by explaining where things stood with the lawsuit. They would also choose Haitians who would make good witnesses, should things come to a trial.
Tringali, Guttentag and a half-dozen students and translators went to meet with the government lawyers at the same base McDonald’s where Harold Koh had demanded his Big Macs. Upon arriving, Tringali was asked by one of the government attorneys to step outside. Tringali and Guttentag’s trip marked the first time Team Haiti had gained access inside the Haitians’ detention camp, and they were to go to the camp after the McDonald’s meeting. Now, however, the government lawyer told Tringali that the administration had received threats against the legal team. If they entered the detention camp, the Haitians would take the lawyers hostage to secure their own release.
Tringali was shocked. He assumed the government was sincere in its belief that something might happen at the camp. But the idea of the Haitians taking him and the others hostage was barely credible. “The Haitians knew we were coming,” Tringali says, “they were waiting for our visit, and for us not to go didn’t make any sense.”
In the event, the visit to the camp passed without incident, and Tringali’s group was finally able to document its substandard conditions. Afterwards, he and the others on Team Haiti had a meeting in the mess hall with the Haitians in which Tringali and his colleagues stood on a makeshift podium and showed a videotaped message from Harold Koh. The tape was meant to establish continuity between the first group of lawyers who had come to Guantánamo and the new faces on this trip. In his video, Koh mentioned that last time they were there they had said that a Clinton victory would help the Haitians. At that point, several Haitians turned their chairs around so they had their backs to Tringali and to Koh’s image on the screen.
The refugees were losing what little faith they had in their legal team. Once again, it fell to Ronald Aubourg to serve as bridge between two worlds. Aubourg notes that it was a constant point of contention among the Haitians as to whether or not they really were HIV positive. To their mind, the military’s statements that they were infected was part of a larger disinformation campaign, a trick intended to confuse and demoralize them. Not only were the Haitians tired of constantly being told by their attorneys to be patient but Tringali and Guttentag’s group had tried to raise the issue of HIV, which the Haitians did not want to entertain.
“There was some HIV expert on that trip,” Aubourg says, “and I think the other aspect of it was that these people were coming to speak about HIV and not about [how they] were going to get out of here.” Through much cajoling, however, Aubourg convinced the refugees not to give up hope just yet.
Yet the refugees’ lack of faith in Clinton would soon prove prophetic. A week before he was to take office, Clinton announced that he was reversing the stance he had taken during the campaign, a promise he had repeated a week after his election victory. The Bush policy of forced repatriation without interviews would remain in place. The one concession was that the Clinton administration would attempt to increase the number of resettlements directly from Haiti.
Harold Koh was devastated. The day Clinton announced his reversal, he says, “was one of the most difficult days I’ve ever had.” Some students had heard Clinton’s announcement on the radio, and they once again gathered in Koh’s basement to watch Clinton on the news. After the newscasts confirmed the worst, it was all Koh could do to keep his composure in front of his students.
“I was extremely cool while the students were there. But after they left, I broke down in tears. I said to my wife: I never thought that we would get screwed like this. And now we’ve got to fight this to the Supreme Court.”
Michael Ratner also felt betrayed by Clinton’s reversal. He describes Clinton as a reverse mirror image of Paul Cappuccio, the government lawyer Ratner befriended. Although Cappuccio never made a pretense of sharing Ratner’s politics, he came through during negotiations to release 100 Haitians. Clinton was the opposite, issuing many promises that amounted to nothing. “One was a deeply warm human being and the other guy made you feel that at the initial meeting, but then went on and
didn’t do that,” Ratner says. “Clinton screwed us completely over.”
Yet if the lawyers were embittered by Clinton’s change, it was nothing next to what the refugees felt. In February, several days before the Yale team was due to make another trip to Guantánamo, Michel Vilsaint called New Haven. He announced that the Haitians were going on a hunger strike. All the refugees, men, women and children alike, had moved to a field next to their huts, where they would refuse any food until they were released. If that resulted in their own deaths, Vilsaint told the lawyers, then so be it. Only freedom could stop them now.
Once again, there was agonizing debate among the legal team over what to do. Many members wanted to somehow persuade the refugees to abandon the strike. Tory Clawson and other students rushed to the phones to urge the Haitians to not go through with it. At the very least, they pleaded, don’t involve the children. But other members of Team Haiti said that if this was what their clients wanted, then the lawyers should represent their wishes. In their view, the adage that “lawyers advise, clients instruct” should apply even in the case of a hunger strike.
In the end the legal team decided that they would respect the Haitians’ desires, and duly sent out a press release noting what was going on. They would limit their entreaties to trying to plead with the refugees to drink liquids, stay in the shade, not exert themselves and at least allow the children and pregnant women to eat. And from now on, the lawyers would also bring Haitian doctors with them whenever they visited the camp.
When Team Haiti visited the camp several days into the strike, they saw the Haitians encamped in a field under the hot sun. The military personnel did not know how to deal with them. Many of the refugees were visibly thinner than when the legal team had last seen them. Yolande Jean, one of the camp leaders, who had gone without food for nearly a week, read the Americans a letter she was writing to her relatives back in Haiti.