Frontier Justice

by Andy Lamey

  Detweiler, Clawson and the others would have to act quickly: when they arrived in Miami, Koh and Ratner were already on the eve of their first court appearance. The purpose of the hearing was to obtain a temporary restraining order, or TRO, that would put an immediate, albeit brief, halt to repatriations. That would give the legal team enough time to obtain an actual injunction, which would prevent repatriation until their case had been heard in its entirety. The attorneys wanted to get into court as soon as they could in order to save as many refugees as possible. But with the TRO hearing drawing closer, it was far from certain that they had enough evidence to convince a judge.

  If they did not get enough evidence it would not be for lack of trying. In the three weeks since Michael Barr and his classmates had first discussed a lawsuit, the Lowenstein students had engaged in a whirlwind of activity. Koh had appointed Barr and the other third-years who had first approached him to be captains of legal squads, each taking ownership of a different aspect of the case. The students scrambled to bring themselves up to speed on everything from the precise legal status of Guantánamo to the medical needs of pregnant women with HIV (of which there were several at Guantánamo). As the TRO hearing drew near, the students also worked non-stop to research and write a legal brief that would present an airtight case against the government’s actions.

  “It was way higher intensity than I think anyone had experienced,” says Barr. “We were working all the time. We would work until two in the morning on a draft legal argument and go over to Koh’s house. He would get up, he’d edit the brief from two to five, we’d get three hours sleep, he’d meet us in the clinic at five, and we’d revise the draft and get comments from people. It was just around the clock. I slept on couches, people were sleeping all over the place … it was just a totally intense full-court press.”

  One area where the students’ youthful dedication paid off was in finding outside help. They managed to obtain co-counsel in human rights organizations such as the American Civil Liberties Union and the San Francisco Lawyers’ Committee for Urban Affairs (attorneys who, like the Yale professors themselves, would work on the case for free). Throughout the case, lawyers from these and other organizations with distinguished civil rights records would play a crucial role in shaping the litigation, both inside and outside the courtroom.

  The initial breakthrough by an outside attorney came from one who, at first glance, made an unlikely human rights crusader. Joe Tringali was a partner at the Manhattan law firm Simpson Thacher and Bartlett. Over 120 years old and with offices in London, Tokyo and Hong Kong, Simpson Thacher’s list of clients includes such venerable financial institutions as J. P. Morgan and Chase Manhattan. Yet in addition to the mergers and acquisitions cases that are common to white-shoe New York law offices, Tringali’s firm also does a fair amount of pro bono work. It was in this capacity that Tringali agreed to devote himself to the Haiti case after his firm was approached by Michael Barr, who had spent a summer articling there.

  Unlike many other lawyers who signed on to the lawsuit, Tringali had no experience with refugee law. So early in the litigation, to bring himself up to speed, he studied a previous Haitian refugee case. While doing so, he made a discovery that helped the Yale team remove the equivalent of a legal albatross that was hanging around their necks.

  The albatross in question was a case called Haitian Refugee Center v. Baker. The same Haitian Refugee Center that had invited the Yale students to Miami had taken the first Bush administration to court immediately after the Haitian coup. The administration’s initial response to the coup had been to condemn the military’s action and to stop repatriation. In November of 1991, however, two weeks after the flow of boats began, U.S. officials announced that repatriation would resume. The Haitian Refugee Center initiated its suit the next day precisely to prevent that from happening.

  Baker was why the government began taking interdicted Haitians to Guantánamo in the first place. The Refugee Center’s lawyers had successfully obtained an injunction preventing the Coast Guard from sending anyone back to Haiti until their case was decided. The government thus had a choice: it could either admit Haitians to the United States or find somewhere else to send them. Michael Ratner and other observers have suggested that the administration did not want to admit large numbers of Haitians to the States because the election campaign of 1992 was not far off, and Florida would figure, as ever, as a battleground state. Sending Haitians to Guantánamo was thus a way for the administration to keep them out of sight and out of mind while it fought off the Refugee Center’s legal challenge.

  That the use of Guantánamo was intended to address the needs of the administration rather than the Haitians themselves was evident from the beginning. “They were keeping Haitians on the top of Coast Guard cutters where the sun was beating down on them twenty-four hours a day,” says Ira Kurzban, the lead attorney for the Haitian Refugee Center, who visited Guantánamo during this time. “They were trying to force them to give up their fight for political asylum and go back. You had people living on top of cutters with their small children.” Eventually, the base authorities allowed people off of the cutters and moved them into Guantánamo itself, housing them in what Kurzban remembers as “horrible, squalid camps.”

  The government went to extraordinary lengths to fight off the Refugee Center’s lawsuit, to the point that the solicitor general himself, Kenneth Starr, appeared in a Miami court to square off against Kurzban. “There are three instances in history in the United States where the solicitor general went to a district court and argued the case on behalf of the United States government,” Kurzban says. “This is one of them.” According to Kurzban, Starr’s unusual move was an attempt to subtly apply pressure. “No question about it, it was to intimidate the judge: ‘Now here I am, I’m the solicitor general speaking on behalf of the president of the United States, and I’m here in district court.’ ”

  Starr is today best known for his activities as independent prosecutor under Bill Clinton, in which capacity he issued his controversial Starr Report, documenting Clinton’s affair with Monica Lewinsky. At the time of Baker Starr was already a prominent figure who was being spoken of as potential Supreme Court material. Kurzban, for his part, had been widely hailed in publications such as Newsweek and Esquire as one of the United States’ leading immigration lawyers, and he had achieved prominence in his own right as counsel for the Aristide government. The two veteran attorneys engaged in a titanic legal battle that reverberated up and down the American judicial system. After Kurzban won his injunction, Starr had it overturned on appeal. Kurzban won another injunction from the original court on remand—only to again lose it on appeal. Eventually Kurzban asked the Supreme Court to settle the matter. But in February of 1992 it declined to hear the case (the fate of most requests the court receives). The government was once again free to treat Haitians as it saw fit. This was the outcome that had so disappointed Michael Barr: in effect, he had asked Koh and Ratner to somehow triumph where Kurzban’s formidable effort had failed.

  Joe Tringali took the Baker record with him on a train ride from New York to Baltimore, where he was going to visit a close friend in the hospital. Like the other members of the Yale team, he sympathized with Kurzban’s efforts to challenge the repatriation policy. But precisely because Baker touched on many of the same questions as the Yale case, it now posed a problem. Team Haiti could not bring forward a suit that was essentially a retrial of Baker. Indeed, the legal team could be punished for launching a “frivolous” lawsuit if a judge decided their case was too similar to the previous one. Rather than walk into a courtroom and make the best arguments that came to mind, they would have to make their best arguments and show how they addressed a situation that was fundamentally different from Baker.

  This was a tall order. But as Tringali’s bumpy train car hurtled toward Baltimore, he spotted something in the Baker papers that brought him up short. It was a passage in a document the government had filed when the Suprem
e Court was deciding whether to hear the case: “Under current practice, any aliens who satisfy the threshold standard are to be brought to the United States so that they can file an application for asylum.”

  The key word was “any.” To the uninitiated it would appear to be one unremarkable adjective. But to Tringali’s methodical eye, it might as well have been highlighted in fluorescent yellow. In effect, the administration had promised the Supreme Court that it would take all Haitians who displayed a credible fear of persecution to the U.S. But it wasn’t doing that with the HIV-positive refugees singled out for second interviews. The change in government policy, Tringali immediately realized, meant that the Yale lawyers were addressing a new situation, one that did not exist during Baker.

  Tringali shared his discovery with his fellow attorneys shortly after returning to New York. “Everybody thought it was a great thing for us to have,” Tringali says, “because it was so contradictory to the [government’s] position. They had represented to the Supreme Court that they were going to do one thing, and now they were doing something else. We thought it was something we were going to be able to use to our advantage.”

  If Tringali’s Baker find was Team Haiti’s first breakthrough, it was soon followed by another. A fringe benefit of Tringali’s involvement was that the Yale team had access to his firm’s New York offices. The day before the TRO hearing was to be held in a Brooklyn court, Koh and a half-dozen students travelled from Yale to Simpson Thacher and Bartlett and set up a war room in one of the firm’s spacious conference rooms. They were joined there by Michael Ratner, who helped them finalize all the material they would present the next day. It was while working there late at night on borrowed computers and eating takeout food that the legal team received a leaked copy of an internal government document—one that made public for the first time exactly what was going on at Guantánamo.

  The document was a memorandum from the Immigration and Naturalization Service, the agency responsible for the interdiction interviews. To this day, former members of Team Haiti are tight lipped about who gave them the Rees memo (so-called because it was written by Grover Rees, general counsel for the INS), stating only that they received if from a third party who worked outside the administration. Whoever it was, Team Haiti had clearly found their Deep Throat. The Rees memo was doubly damaging to the government, both for what it said and for when it was written.

  The memorandum revealed that the government’s justification for second interviews was a U.S. law that barred most immigrants with HIV from applying for admission to the country. The law, which was introduced in 1987, has long been controversial. Indeed, in 1990 various public health organizations recommended it be struck down, on the grounds that HIV is not spread by casual contact, the policy’s purported justification. In response, conservative groups such as the Christian Action Network of Forest, Virginia, initiated a mail campaign, sending their members letters that began by asking, “Are there not enough homosexuals with AIDS in the United States that we now need to import more?” Lawmakers in Washington soon received more than thirty-five thousand letters supporting the ban, with the result that it was still on the books at the beginning of the 1992 presidential campaign. (Bill Clinton and Al Gore announced that they would lift the ban if they won, but once in office they reversed themselves, and it remained in effect until 2009.)

  A key aspect of the HIV ban is that it has always allowed for exceptions. For one thing, it had never been applied to foreigners who made asylum claims. Nor had it previously applied to interdicted Haitians who passed the credible-fear test: they had previously been taken to the United States regardless of their HIV status. Finally, the government could always issue a waiver, which would allow any HIV-positive foreigner entry to the country.

  Given these facts, citing the HIV rule seemed to the Yale lawyers not so much a rationale as a rationalization. As Ratner puts it, the administration was claiming it had to “keep the HIV people in Guantánamo because of the so-called exclusion rule … But of course there were always ways you could waive that. The administration, the attorney general, has a right to waive it. So it wasn’t like that barred them.” As Ratner and other members of Team Haiti point out, even leaving aside all of the loopholes in the HIV exclusion rule, there is a difference between not admitting people to the United States and forcibly returning them to a place where their lives are in danger.

  The Rees memo was dated February 29, a mere five days after Kenneth Starr had indicated to the Supreme Court that “any aliens who satisfy the [credible-fear] standard” would be taken to the United States. Team Haiti thus had in its hands an incriminating document that revealed the administration had gone back on its word almost as soon as its lawyers were down the Supreme Court’s marble steps.

  The legal team scrambled to incorporate the Rees memo into its court papers. They were still at it at three in the morning, with only six hours to go before their hearing, when another document came spiralling off the fax machine. The first-year students in Miami had found a refugee who could testify about the second interviews. Lacking a printer, they had hurriedly transcribed the testimony by hand on a yellow legal pad (“I was deemed to have the best handwriting,” Tory Clawson recalls) and faxed it from the tiny office of the Budget Inn. Given that it was the middle of the night and no notary public was open who could certify it as an affidavit, they had to send it on simply as an affirmation.

  Third-year student Lisa Daugaard was in the Simpson Thacher office when the Miami fax came through. Of all the students who worked on the case, Daugaard may have been the most devoted: she would continue to work on the lawsuit after she left law school. According to Daugaard, a strange sense of elation came over her as she read the fax.

  It wasn’t because of the grim procedures that it described taking place on Guantánamo. Rather, it was the realization that she wasn’t the only one who had become consumed by the Haiti case, putting in so many hours that her grades, not to mention her chance of graduating, were now in jeopardy. Tory Clawson, Elizabeth Detweiler and the other first-years in Miami were throwing their law degrees away too, not resting until they got what the lead attorneys needed.

  “It was really a great feeling to get [the affirmation],” Daugaard says, “because it was the first instance of the dynamic among all the people working on the case that continued to the very end, which was, you know, I’m going to totally destroy the whole rest of my life, which would be completely useless if everyone else weren’t doing the same thing. It wouldn’t make any sense for me to do this crazy thing by myself; I need you to be doing it too.” In that spirit, when the challenge of taking on the government seemed overwhelming, Daugaard and the others would repeat a slogan Koh had shared with them: They’re an army, we’re a family.

  The affirmation confirmed something the students had heard from other sources: Haitians who were made to undergo second interviews were not allowed to speak with a lawyer. Of all the information and documents Team Haiti obtained at the beginning, this would prove the most crucial.

  According to the Rees memo, the second interviews at Guantánamo were to be “identical in form and substance, or as nearly so as possible,” to asylum interviews in the United States. That was why second interviews were being conducted according to a higher standard of proof: Haitians were being asked to demonstrate a well-founded fear of persecution, the same standard employed in asylum hearings within the United States itself. But asylum-seekers who made it to the United States had the right to consult with a lawyer—hence the human floodtide that overwhelmed the Haitian Refugee Center and the original reason for the Yale students’ Miami trip. But at Guantánamo, the government was preventing the Haitians from consulting an attorney. This was not an abstract difference. The lawyers working on the Haitian lawsuit, among others, were willing to go to Guantánamo and represent the Haitians for free if need be.

  There was no longer any question of the Yale lawsuit overlapping with Baker. Koh and Ratner could mount an entire
ly separate challenge, one they raced to finalize as dawn approached. For the time being they would put off any direct attack on the overall interdiction program or the HIV detention policy. Instead, their opening salvo would emphasize the issue of access to lawyers. They would argue that it was wrong for the government to conduct second interviews without granting the Haitians access to legal counsel—counsel that the Yale attorneys would themselves be willing to provide.

  The lawyers settled on this approach for several reasons, one of which was their belief that black, HIV-positive foreigners who did not speak English could expect little sympathy in public opinion. The legal team reasoned that they would be doing the Haitians no favours by emphasizing their HIV status or their desire to enter the United States. Focusing on the right to a lawyer, by contrast, “was asking for something ‘as American as apple pie,’ ” as Ratner puts it. If the strategy worked, it would also have the advantage of granting the lawyers access to Guantánamo to consult with their clients—and potentially obtain more evidence to mount a challenge to the larger repatriation policy.

  Bleary-eyed and physically exhausted, but intellectually energized by their discoveries, Koh and Ratner, together with Daugaard and her fellow students, headed to Brooklyn to appear in the chambers of Judge Sterling Johnson Jr. As they had anticipated, the government’s lawyers argued that the case was simply a repeat of Baker and so a waste of the court’s time. Koh, who was lead counsel, countered that their suit involved a class of people who did not exist when Baker was argued—namely, Haitians facing second interviews. There could be no overlap with Baker, he told the judge, as the policy at issue had not come into effect until after Baker was decided.

  At one point in the proceedings one of the government attorneys asked for a delay in the trial. The solicitor general wanted to come to Brooklyn and argue the case himself, the lawyer explained to the judge, and would need an extra day to do so.