Frontier Justice

by Andy Lamey

  “Don’t count on me anymore, because I am lost in the struggle of life.… Hill and Jeff, you don’t have a mother anymore. Realize that you do not have a bad mother, only that life took me away.… Good-bye my children. Good-bye my family. We will meet in another world.”

  As three Yale law students would note in an account they later wrote of the case, “ironically the refugees had regained control of their lives only by controlling the possibility of their own deaths.”

  From this point on, members of the legal team maintained a continuous presence at Camp Bulkeley, as the detention facility was called. For a few weeks it was simply because, with the non-return trial finally approaching, they needed to take depositions. But the reason for their presence evolved as the legal team sought to provide emotional and other forms of support. More than once they talked a refugee out of suicide, plans for self-destruction motivated by the belief that the death of a few Haitians might shame Clinton into admitting the others.

  Causing members of Team Haiti to relocate to Guantánamo was not the only effect the hunger strike had. It also galvanized the attorneys and students to step up their political activities. At a pro-Aristide rally in New York City, they approached former Democratic presidential candidate Jesse Jackson. He agreed to visit the camp, which he did on Valentine’s Day, 1993. As Tory Clawson explains, “Part of our whole idea for having him down there was to urge them to go off the hunger strike, because we were worrying about their health.” By this time, the lawyers were becoming concerned that some people might actually die. Accompanied by a retinue of media, a congresswoman and other black leaders, Jackson went into the camp and prayed with the refugees, holding in his arms one who broke down during the prayer. He then visited the thirty children in the camp, who had been waiting for him and chanting, “Guantánamo no good, Miami yes!” Then, to the astonishment of the people who had brought him there, Jackson looked into the TV cameras and made a surprise announcement. Rather than urge the Haitians to stop their hunger strike, he, too, would stop eating.

  Clawson and her colleagues were dumbfounded. “I remember we were a little unpleasantly surprised.” Clawson speculates that Jackson may have noticed, as the legal team had, that some of the refugees were in fact taking small amounts of food. If so, he may have decided that encouraging them to prolong their strike would not be dangerous.

  Jackson’s involvement immediately turned the case into a much larger issue. His personal hunger strike lasted for ten days. Jackson, together with the actor Susan Sarandon and the director Jonathan Demme, was also arrested at a rally in New York City. An emotional Sarandon read out Yolande Jean’s letter to her children in front of gathered reporters. Several days later, Sarandon and the actor Tim Robbins appeared on stage at the Academy Awards. While presenting an Oscar, they drew attention to the red ribbons they were wearing, which they said they wore in support of the HIV-positive Haitians at Guantánamo, who were being imprisoned without having committed any crime. The famous actors were widely criticized and received waves of hate mail, some of which denounced them for helping “sick faggots.” Nevertheless, they successfully raised the refugees’ profile and kept their plight in the public eye.

  Hollywood stars were not the Haitians’ only supporters. A group of thirty Yale law students, most of them not members of Team Haiti, organized a rolling hunger strike across the United States. They built a replica detention camp, complete with barbed wire, which they occupied for a week as they went without food. From Yale, the strike spread to Harvard, Brown, Michigan, Columbia, Howard, Georgetown, Penn State and other universities. At the City University of New York Law School, the dean himself participated. Alongside the universities, many ministers organized hunger strikes among their congregations. By the time the non-return case was due to be heard in the Supreme Court, in March of 1993, Team Haiti had also obtained the support of three former attorneys general of the United States, Amnesty International, the United Nations High Commissioner for Refugees and a dozen other prominent human rights groups, all of which filed “friend of the court” briefs supporting Team Haiti’s lawsuit. (The government, by contrast, received only one supporting brief, from the Federation for American Immigration Reform, an anti-immigration organization.)

  In the end, however, it would come down to the argument before the Supreme Court. Harold Koh would argue the case for Team Haiti. The Supreme Court hearing was on a Tuesday. On the Friday before, Koh went to Washington to sit in on the court and observe the justices in action. (Before a case, he says, “you always want to go to the court and see how they’re behaving.”) Koh had all of his legal files FedExed from New Haven to D.C. and set up an office inside a hotel room near the courthouse, going over everything one last time.

  Koh devoted special care to the closing words of his oral argument. In the Supreme Court of the United States, a white light goes off to indicate an attorney is nearing the end of his allotted time. A red light then tells the lawyer to stop, even if in mid-sentence. Koh reasoned that in between the white and red lights, he would need to budget forty seconds for a closing statement that would summarize the central issue in simple human terms. Throughout the entire case, the parties involved had been divided into Haitians versus Americans, us versus them. Koh’s final goal before the court would be to attack this division at its root. As Koh says, he wanted to “put the court and crowd on side with the Haitians so that they were like us.” Carefully timing his words, he settled on the following statement: “Ours is a nation of refugees. Most of our ancestors came here by boat. If they could do this to the Haitians, they could do this to any of us. For these reasons, this decision should be affirmed.”

  The night before the argument, Koh was joined by his wife and six-year-old daughter. They attended one last political demonstration with Jesse Jackson, with protestors holding up signs in the Washington twilight saying “Justice for Haitians.” The next morning, Koh and his family, together with the student members of Team Haiti, gathered for breakfast in the Supreme Court cafeteria. Koh had once worked as a clerk for Supreme Court Justice Harry Blackmun, and he knew that Blackmun had breakfast with his clerks every morning at eight. Koh was thus unsurprised when he looked across the crowded dining hall and saw his former mentor. Koh wanted to avoid any hint of impropriety, and so he had taken great care not to come in contact with Blackmun before the case was decided. While his wife and daughter went over to say hello, Koh hung back and waved instead. Koh had been isolated for the past seventy-two hours—and, in a way, isolated for long before that—and he was nervous in the final hours before the 10 a.m. argument. But when Blackmun looked across at him and smiled, Koh felt his spirits rise.

  “He gave a shy smile that was very confidence building,” Koh says. “I could tell he was saying, ‘I’m on your side.’ ”

  Two hours later, Koh was sitting at the respondent’s table, waiting for the argument to begin. As the final minutes before the arrival of the justices ticked away, Koh took one last look back at the visitors’ gallery behind him. Everywhere he looked, he saw a sea of expectant black faces. Haitian Americans had come out in force to show their support for what he was doing. But then the justices in their gowns entered the room, and Koh felt a shiver of fear pass through him.

  In every court case there are two different explanations of the events involved, ultimately two different versions of reality. For Harold Koh and the other members of the Yale team, the Haiti case was about the refugees themselves and their treatment by the United States government. But for Maureen Mahoney, the government lawyer who argued against Koh in the Supreme Court, the lawsuit was about the president of the United States. The president in question was not a flesh-and-blood person such as George Bush or Bill Clinton, but the entity of the presidency itself and the legitimate scope of its power. Like other lawyers who represented the Bush and Clinton administrations, Mahoney argued that the non-return lawsuit was a wrongful intrusion into the realm of foreign affairs, where the president, not the court syst
em, is the final authority.

  Mahoney brought this perspective to bear on the Refugee Convention, to which the United States had long been a signatory, and one of the central legal documents at issue in the non-return case. In particular, Mahoney devoted much attention to the following passage: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

  To the Yale team, the meaning of the passage was unambiguous: countries that signed the convention were committed to not returning refugees to places where their lives would be in danger. Mahoney, however, zeroed in on the word “expel” and the French phrase “refouler,” a term of art in refugee law. According to the government’s reading, expulsion referred to the formal process whereby a foreigner lawfully present in a country is legally removed. “Refoulement, by contrast,” Mahoney and her colleagues argued in their brief, “connotes ‘summary reconduction’ (mere physical relocation) of an individual.” On this reading the Refugee Convention referred to two different actions that can be performed only on a person actually present—either legally or physically—inside the United States. And if that was the case, then it meant that the convention had “limited territorial scope.” As it is impossible to expel or refoul a refugee who is not inside the United States, and as the Haitians were interdicted hundreds of miles from U.S. shores on the high seas, it followed that the interdiction program was perfectly legal.

  Mahoney had finished her argument and was about to sit down when one of the justices asked her to wait. It was Koh’s old mentor, Justice Blackmun.

  “Well, before you sit down, a couple of irrelevant questions. Have you ever been in Haiti?”

  “No, Your Honor, I have not.”

  “Are you familiar with a book called The Comedians by Graham Greene?”

  Blackmun would later be criticized for engaging in an off-topic line of questioning, but as Koh recalls the proceedings, Blackmun’s closing exchange with Mahoney “was the most relevant thing said that day.” The Comedians is set in Haiti and is filled with scenes of harrowing violence. According to Koh, “what he was basically saying was, ‘You guys don’t know what this situation on the ground is in Haiti, do you? You have no idea what you’re sending these people back to.’ ”

  At the time, however, Mahoney did not pause to ask what Blackmun might mean, and simply replied, “No, Your Honor, I’m sorry, I’m not.”

  Three months later, Michael Ratner and Harold Koh watched as a Hercules troop carrier rumbled down the runway toward them. They were standing on the tarmac of LaGuardia Airport in New York. As the camouflaged airplane opened its massive cargo doors, Koh yelled to Ratner above the roar of the engines, “Michael, we caused this plane to take off.” A group of expectant Haitian faces was soon blinking out at them. Tears started to stream down the faces of the two veteran lawyers.

  Because the case had split into two separate lawsuits, the question of whether the Guantánamo Haitians would be allowed to enter the United States was decided separately from the Supreme Court argument dealing with repatriation. Led by Joe Tringali, Team Haiti had argued for the release of the Guantánamo Haitians in front of Judge Sterling Johnson, the same Brooklyn judge who had issued their hard-won restraining order. Throughout the trial, a cool and unruffled Tringali methodically demolished each of the government’s arguments. At one point a Coast Guard commander named Waldmann testified that a group of Haitians who were picked up at sea and taken to Guantánamo had “all stood up and started cheering and thanking the Coast Guard for saving them.” Under cross-examination, Tringali calmly asked Commander Waldmann if the cheering refugees had been informed that they would be detained at Guantánamo for over a year. Waldmann admitted they had not. Tringali then asked about the eighty-nine refugees who had been forcibly returned to Haiti in April 1992 and forced off Waldmann’s cutter with firehoses.

  “When you left the Haitians on the dock in Port-au-Prince, do you recall whether they were clapping for you then?”

  “No, sir,” a defeated Waldmann replied.

  When the decision came down, Team Haiti’s victory was total. Judge Johnson had accepted every one of their arguments. “Each year many ‘non-immigrants’ enter the United States,” he wrote, “and are not subject to HIV testing. To date, the Government has only enforced the ban against Haitians.” Noting that admitting the Haitians was unlikely to affect the spread of AIDS, Judge Johnson concluded that continuing to imprison them “serves no purpose other than to punish them for being sick.”

  Now, on the tarmac, Ratner and Koh were seeing the human beings their lawsuit had benefited. For Ratner, it was the most emotional moment of the entire litigation.

  “Winning the Guantánamo case, it was very important, but not in the same way. This was human. There were people we freed from Guantánamo. And they were coming off the plane.”

  The Haitians came tumbling out the back of the airplane and began filing toward a U.S. immigration station that had been set up to register their arrival. Each Haitian had a hospital bracelet bearing a bar code and his or her name, which would be checked against those listed on a court order Koh and Ratner had brought with them. Before they reached the immigration station, however, a Haitian man named Jean came running up to Koh.

  “Mon avocat,” he said in an agitated voice. He was waving a piece of paper and pointing to his name on his bracelet. “My name, my name,” he said. Koh looked down and saw that it had been misspelled. Jean wanted him to fix it, and so Koh and the refugee began to walk toward the immigration table. After they took a few steps, however, Koh stopped.

  “Suddenly I realized we couldn’t do it,” he remembers. “All of the rights he had in the U.S. came from the court order. And if we were actually to correct it, it might just confuse things and he could spend all of his time in the U.S. dealing with this and might be deported.”

  Koh pointed at the refugee’s bracelet. “This is your name now,” he said, tapping.

  Jean paused. “What was your name when you came to America?”

  “When we got to Ellis Island, they spelled it Koh.”

  “Well,” Jean said, pointing to the paper with his misspelled name, “this is my name now.”

  Three months after Koh argued the non-return case, the Supreme Court released its decision. Leading up to the trial, members of the Yale team had mixed feelings about how well they would do. Michael Ratner thought they would probably lose. Koh, based on the unambiguous language of the Refugee Convention and other factors, thought that they might squeeze out a narrow win.

  When the Supreme Court issued its decision, however, no one was prepared for it. Team Haiti lost 8–1. The only justice who sided with them was Blackmun. The rest of the justices had accepted a variation of the government’s reading of the convention. The policy of returning Haitians to danger in Haiti, they ruled, was perfectly legal.

  To members of Team Haiti, who had already been through so much, the court’s decision was devastating. As Michael Barr puts it, “At bottom what we were saying was if refugee and asylum law means anything, either the refugee convention or U.S. immigration law, it means you can’t do what you’re doing. That’s [the convention’s] plain meaning, its purpose.… To get to the government’s position, you have to have a really tortured reading of the words.”

  The Supreme Court case is now known as the Sale decision, so named after Clinton’s acting commissioner of immigration, Chris Sale, a named party in the lawsuit. It remains the law of the United States. Since the decision was handed down, it has attracted a barrage of criticism. Normally staid law journals and many books have said that the judgment is based on “an arcane and highly dubious interpretation of what it is to ‘refoule’ a refugee,” and the reasoning by which the court arrived at its decision has been called “disingenuous.” One law professor has gone as far as
to label the Sale decision “the Dred Scott case of immigration law,” referring to the 1857 U.S. Supreme Court decision that held that slaves had no legal rights.

  One reason the Sale decision is unusually controversial is that it is based on a reading of the Refugee Convention that has few adherents outside the U.S. government. In a friend of the court brief submitted to support Yale’s case, the Office of the United Nations High Commissioner for Refugees argued that the government had misinterpreted the plain meaning of the convention. “Under [the government’s] reading, while the treaty purports to prohibit the return of refugees ‘in any manner whatsoever’ it actually excepts from this sweeping language all forms of return that do not entail removal of the refugee from the territory of the contracting State.”

  One of the most outspoken critics of the decision is Guy Goodwin-Gill, a scholar of international law affiliated with the University of Oxford, whose writings the Supreme Court justices quoted to justify their decision. In a scathing commentary published after the judgment came down, Goodwin-Gill repudiated any association with Sale. “The Supreme Court’s citations are often adrift; it takes passages out of context, misquotes academic and other commentators … and ignores whatever might obstruct its policy decision to … refoule refugees.”

  Goodwin-Gill noted that the government’s claim that the Refugee Convention applied only within U.S. borders was contradicted by numerous statements of American government officials going back over a decade. He cited a barrage of sources from all levels of the U.S. government, all expressing an “extraterritorial” understanding of the applicability of the Refugee Convention.