Frontier Justice

by Andy Lamey

  The administration’s solution was to conduct interviews with the Haitians at sea. After a boat coming from Haiti was intercepted, the passengers would be brought on board Coast Guard cutters. Speaking through interpreters, U.S. Immigration officials would conduct interviews on the helicopter decks and administer a questionnaire that included the following questions:

  Why did you leave Haiti?

  Have you belonged to any organization in Haiti?

  Have you done anything in Haiti which you believe will result in problems for you if you return?

  Have you ever been detained or sent to jail in Haiti?

  Have you or your family been mistreated by the authorities in Haiti?

  After carefully reviewing the Haitians’ responses, Coast Guard personnel were to take those who showed a credible fear of persecution to the United States, where they would be allowed to make an application for asylum. The rest would be sent back to Port-au-Prince, the Haitian capital.

  Interdiction was controversial from the beginning. Critics charged that the policy was racist, as Haitians were the only group singled out for such treatment. In response to this and other criticisms, administration officials invariably pointed to the on-board interviews as evidence that interdiction was conducted in a fair and humane way. As the U.S. attorney general put it in 1982, “We have taken careful steps to deal with possible asylum claims by those met at sea … I am confident that these procedures will insure that nobody with a well-founded fear of persecution is mistakenly returned to Haiti.”

  In 1989 the Lawyers Committee for Human Rights, an advocacy group based in New York, grew concerned that the interdiction program was not meeting the minimal safeguards the government claimed. The group sent a delegation to Haiti to conduct interviews with repatriated Haitians on the main pier in Port-au-Prince and elsewhere. Returned Haitians described numerous problems with the Coast Guard’s procedures. Among the most serious was the fact that on-deck interviews were conducted by untrained Immigration personnel, who had no knowledge of refugee or asylum issues, and who spent very little time with each Haitian, sometimes only two minutes, including translation time. Many interviews were also done within sight or hearing distance of other Haitians. Returned interviewees told the human rights lawyers that they were too afraid to say anything about persecution with people listening in, as anything they said might get back to the authorities in Haiti.

  Then there were the questions themselves. Immigration officials told the Lawyers Committee that they “ordinarily asked all of the questions [from the questionnaire] but sometimes found it too time consuming to write down all the answers.” When the lawyers obtained the actual questionnaires used to interview one group of 182 Haitians, they discovered that only the following inquiries were put to them:

  What is your name?

  Where were you born?

  What is your date of birth?

  What is your current address?

  Why did you leave Haiti?

  What kind of work do you do?

  In response to the question “Why did you leave Haiti?” some interviewees gave answers that indicated they had left in fear for their lives. “Cannot live,” said one, “no parents; cannot help five children; lost two kids by gun fire; brother in law killed.” Another stated: “Cannot work after finishing school; people being set on fire; cannot return to Port-au-Prince; lost three brothers; spent three years in prison for nothing; cannot go back to Port-au-Prince.” Yet even when such information was volunteered, the people who spoke of such concerns were summarily returned to Haiti.

  The Lawyers Committee published its findings in 1990. They noted that of the 21,461 Haitians who were intercepted in the first nine years of interdiction, a mere six were taken to the United States. “Of these,” the attorneys wrote, “two had lived in the United States before and were presumably somewhat familiar with U.S. legal procedures and three were relatively well-educated teachers able to articulate their claims.” The Lawyers Committee conservatively estimated that the government had returned “at least hundreds of refugees” to danger.

  In the eyes of many, the Lawyers Committee had revealed the real purpose of the interviews: not to identify genuine refugees, but to add a procedural fig leaf to a cynical and callous policy. Partly in response to the committee’s criticisms, Immigration officials introduced new interview guidelines in 1991. Consequently, the number of Haitians admitted to the United States rose slightly, to 3 to 5 percent of those interviewed each month. But even after this small change, major problems still remained. “It’s no place to do an interview,” one asylum officer said in 1992 of the Coast Guard cutters’ decks. “The sun is a killer and the wind makes it impossible to write. Papers are curling up under twenty- to thirty-knot winds.” He added: “There is just no privacy, scarcely the illusion of privacy.… We were shoulder to shoulder with migrants while interviewing somebody else. It’s the worst possible place to do an interview.”

  Interdiction continued to attract criticism even after the changes brought about by the Lawyers Committee report. The program was widely seen as treating human beings as disposable. In the words of one member of Congress, the on-board screening process was “analogous to a fish-processing ship out there that processes the fish, keeps the keepers, and throws away the rest.” Such was the debate leading up to the 1992 presidential campaign, when an untested candidate from Arkansas made a bold campaign pledge. If he were elected, he would abolish interdiction for good. It was a promise that would have fateful consequences, but not the ones Bill Clinton intended.

  In 1992 Michael Barr was a third-year law student at Yale University. After the U.S. government won a legal challenge to its interdiction program, Barr says he was “totally and completely morally outraged.” He identified with the Haitians and what was being done to them. As he puts it, “I’m Jewish and my father came to the United States in a boat in the ’40s, [so] I just sort of immediately connected to what the Haitians were experiencing as they fled persecution.” Soon Barr found himself discussing the situation of Haitian refugees with a half-dozen law school classmates. Their conversations gave rise to a mad thought: What if we put together our own legal challenge to interdiction? What if we persuaded our professors to help us take the U.S. government to court? Thus did a small group of law students begin what has aptly been called “the most important refugee case of the later half of the twentieth century.”

  When Barr and his fellow students came up with the idea of a lawsuit, they were reacting to a series of events that had started in Haiti two years before. In 1990, Jean-Bertrand Aristide won Haiti’s presidential elections, making him the first Haitian leader to come to power democratically in over thirty years. Aristide was a charismatic former priest who spoke on behalf of Haiti’s poor majority, and he had long denounced the country’s dictators from his pulpit. When Aristide ran for president he called his political movement Lavalas, a Creole term variously translated as “torrential rain” or “wave,” which is used to describe the heavy floods that occur during Haiti’s rainy season. Lavalas conjured up the image of a cleansing wave rising up from Haiti’s slums to wash away the country’s political corruption. If that has never quite happened in modern Haitian history, in his early days Aristide came closer than any other leader, dramatically reducing the number of extrajudicial executions and similar abuses from the Duvalier era.

  In September 1991, the Haitian military, with which Aristide had long been at odds, overthrew the Lavalas government. Under Aristide, the number of people fleeing Haiti by boat had slowed to a trickle; under the subsequent military regime, which would eventually kill more than five thousand people, boat departures exploded. Haitians took to sea in whatever craft they could find or quickly throw together. As one American Immigration official stationed on a Coast Guard ship said at the time, “I saw bed sheets tied to masts still covered with fresh tree bark … You wouldn’t go out in a tiny pond in these boats.” To Barr and his peers, the desperation of the Haitians w
as obvious, as was the injustice of the interdiction policy, which now involved returning unprecedented numbers of people to violent persecution.

  The same year as the Haitian coup, thousands of miles to the north in New Haven, Connecticut, Yale Law School established the Lowenstein International Human Rights Clinic. Law school clinics are training programs that allow students to take part in cases featuring different areas of the law. When the coup began, Yale’s human rights clinic was taught by Harold Koh and Michael Ratner, two attorneys who, while they shared an interest in human rights, had arrived at the Lowenstein Clinic along very different paths.

  Koh was the more academic of the two, the one who most resembled the traditional image of a bookish, button-down law professor. Koh had honed his prodigious intellect studying at Harvard and Oxford, and before getting involved in the clinic, he had spent his time quietly producing learned papers and monographs on less than incendiary, even subdued, topics (“My specialty before the lawsuit was international business transactions,” Koh notes). Far from a firebrand or tenured radical, Koh had spent several years in the 1980s serving in the Justice Department under Ronald Reagan.

  If Koh was a Spock figure, calm and cerebral, Michael Ratner was Scotty, fiery and outspoken. As a law student during the Vietnam era, he had participated in a student takeover of Columbia University, during which police waded through crowds of demonstrators, beating Ratner and other protestors as they went. When the Haiti lawsuit began, Ratner was commuting to Yale from Manhattan, where he worked as a civil rights attorney with the Center for Constitutional Rights, a prominent advocacy group. The legal equivalent of an old-fashioned rabble-rouser, Ratner had more than once launched a lawsuit he had no hope of winning, simply in order to draw attention to an injustice and, in his words, “help create a climate [for change] in the community.”

  Koh’s and Ratner’s different approaches to the law was crystallized during a speech Ratner gave at Yale when the first President Bush was in power. According to Laura Ho, a former law student involved with the litigation, “he talked about how Bush had blood up to his elbows, and Harold was like, ‘Oh my god.’ Harold Koh was more within the system, and Michael Ratner was more a lefty constitutional lawyer.” According to Ho and other students, it was precisely because Koh and Ratner had such different approaches that they made an engaging teaching team, attracting many students to their clinic.

  One of the Yale clinic’s first cases had been a lawsuit against former Haitian dictator Prosper Avril, which the clinic had brought on behalf of six Haitian torture victims. Through their involvement in the Avril case, the two Lowenstein professors, as well as their students, came to take a keen interest in Haiti. As Ratner has put it, “We had personal ties to a number of the democratic leaders endangered by the coup … we simply wanted to save as many refugees as possible.”

  What the Yale team wanted to save the refugees from was something they had heard was happening at Guantánamo Bay. The unusual arrangement of an American military base on Cuban territory is a legacy of the 1898 Spanish-American War, during which U.S. marines captured the bay and brought it under U.S. control. After the war, when the victorious United States had a strong hand in Cuban affairs, it forced the smaller country to sign a treaty that allowed the United States to maintain a naval base at Guantánamo for as long as it likes. (The arrangement is an ongoing source of frustration in Cuba: Fidel Castro once called Guantánamo “a dagger plunged into the Cuban soil.”)

  Guantánamo is just across the Windward Passage from Haiti, and when thousands of people began fleeing Haiti in the wake of the 1990 anti-Aristide coup, the Coast Guard began taking interdicted Haitians to the large military facility. Over the course of the next eighteen months, more than thirty-six thousand Haitians would pass through the naval base. The interviews that had long been conducted on Coast Guard cutters were now done at Guantánamo instead. As before, any Haitian who was “screened out,” or deemed not to have a credible fear of persecution, was sent back to Haiti without recourse.

  To the Yale team, the mere fact that the flawed interdiction policy was still in effect was itself cause for concern. But through speaking with relatives of people detained at Guantánamo and Haitians hired to work as translators, the students started picking up rumours about mysterious “second interviews.” Some people who passed the credible-fear test—that is, likely refugees—were singled out for an additional round of interrogation, during which their claims to be fleeing persecution were judged according to a more difficult standard of proof. It wasn’t entirely clear what was happening to people who failed to meet that standard, or why they were being singled out for second interviews in the first place. When the lawsuit began, all that the Yale students had to go on were whispers that it had something to do with HIV.

  One of the first things Koh and Ratner did after signing on for the case was to reach out for help, both outside and inside the law school. If they were going to beat the government in a court of law, they would need to find outside lawyers, particularly those with immigration and refugee experience. Within Yale, Koh sought help from every student he could find, whether they were enrolled in the human rights clinic or not. The result was that “Team Haiti,” as the students began to call themselves, quickly grew to include seventy lawyers and law students (before the case was over, the number of students involved would rise to over 100).

  Elizabeth Detweiler, a first-year student, joined Team Haiti almost by accident. One day she was working in Yale’s immigration clinic (a separate entity from the one dealing with human rights) when the professor running the class made a surprise announcement. The Haitian Refugee Center, an advocacy organization in Miami, needed help processing the asylum claims of Haitians who were being brought from Guantánamo to Florida. Were any students willing to go down to Florida and help out? “The law school is willing to cover your plane ticket,” he added.

  Detweiler and several other students instantly shot up their hands. “We were like, ‘Yeah! We’ll go!’ ” she says. The students were not the only ones excited by the idea of a Florida trip. When Harold Koh found out that Detweiler and nine other students would soon be accompanying their professor to interview Haitians, he gave them a list of questions to ask about what exactly was happening at Guantánamo, which he hoped would result in valuable information for the lawsuit.

  Detweiler and the others checked in to the Budget Inn located in the city’s Little Haiti neighbourhood, where many of the refugees were temporarily located. The students found the Haitian Refugee Center in a state of total chaos. Of the 15,000 Haitians who had fled Haiti since the coup, 5,700 had been admitted to the United States. But they still had to file an asylum claim. That would require an attorney, and the Refugee Center had access to only five lawyers. Detweiler and her classmates set out to provide what assistance they could. Huddled around dining tables and using whatever translators were at hand, they began conducting interviews that lasted late into the night.

  Detweiler’s group quickly discovered what was really going on in Cuba. As Detweiler notes of the Haitians, “They hadn’t felt listened to on Guantánamo, and they were eager to tell us what was happening.” The interviewees explained that when each Haitian was taken to Guantánamo, he or she was given an HIV test. This had revealed a small percentage of positive cases—together with their family members (not all of whom were HIV-positive), they numbered roughly three hundred. During their interviews, some of the HIV-positive Haitians had demonstrated a credible fear of persecution. Yet unlike other Haitians whose claims of persecution were deemed credible and who were taken to the United States, members of the HIV group instead had to undergo a second interview, which was harder to pass, and which inevitably saw people who failed forcibly returned to Haiti.

  Detweiler could hardly believe what she was hearing. It was bad enough that the Coast Guard was sending back thousands of Haitians who did not meet the credible-fear standard. Now it turned out that a second scandal was occurring at Guantá
namo. It involved only a few hundred Haitians rather than thousands, but that did not change the fact that it was a scandal. The three hundred Haitians in the HIV group had passed the credible-fear test, and so had met the difficult standard the U.S. government was using to identify refugees, and yet the government was going ahead and returning members of that group anyway. To Detweiler and the other students at the Budget Inn, there was something especially brazen about the way the government was treating the HIV group of Haitians.

  Tory Clawson, one of the students who went to Miami, was struck by the fact that that first-year law students were handling asylum claims, which were potentially a matter of life and death. But after the students were told what was happening at the second interview stage at Guantánamo, she says, “suddenly we saw we were part of something else that was even bigger … What was happening was so terrible, and we wanted to figure out a way to intervene.”

  A valuable piece of information the students gleaned from the Haitians at the Budget Inn was a description of Guantánamo and its daily rhythms. That knowledge would allow the legal team to rebut an argument they anticipated the government would make (correctly, it turned out), claiming that allowing lawyers onto Guantánamo would disrupt the military’s activities. If Guantánamo was big enough to house a McDonald’s and a Baskin-Robbins, the Yale attorneys would counter, it was big enough to withstand the presence of a few civilian lawyers. But the real challenge for the students in Miami would be to find a Haitian who knew enough of the second interviews to swear out an affidavit.