by Andy Lamey
Lisa Daugaard remembers the Yale team’s shock. Ken Starr? In the Federal District Court for the Eastern District of New York? She had the same reaction Ira Kurzban had had when Starr had showed up in Miami: it had to be an implied threat, an attempt to rattle the judge.
Everyone looked up at the bench. Judge Johnson was a heavy-set African American in his late fifties with a white beard. Of his legal background, the Yale team knew only that he was a former federal prosecutor who had been appointed by President Bush only a few months earlier. To everyone’s surprise, Johnson got to his feet and pounded the bench with his hands. Thump! Thump! Thump!
“I am from Bed-Stuy,” Johnson said, referring to Brooklyn’s predominantly black neighbourhood. “And I will not be intimidated.”
The members of Team Haiti could hardly contain their delight. The government’s attempt to lay down the law had backfired. “It was dead silence,” Daugaard recalls. “I have never seen a judge do anything like that … Until that moment they thought he was in their pocket. After that moment, they couldn’t have had that expectation.”
Judge Johnson made a second surprising remark. The administration’s lawyers kept making elliptical references to “how it was for Marines on Guantánamo,” without clarifying.
Finally Johnson looked down at the government attorneys. “Since you obviously know I served in the Marines at Guantánamo, it seems only fair that the plaintiffs know also.”
It was a nasty shock for the Yale team. Would Johnson’s experience at Guantánamo cause him to sympathize with the government, particularly its argument that admitting lawyers to the base would disrupt day-to-day operations? The government’s lawyers certainly seemed to hope so. Koh had taken care to rebut this particular point, but on the trip back to Connecticut after the trial, the Yale team began to have doubts.
Unease turned to dread when the clinic members arrived back at the law school to find the fax machine spitting out court papers that had been filed by the government’s lawyers. In restraining order hearings, it is normal for the person requesting the TRO to be asked to post a bond. What was abnormal, however, was the amount of the bond the government was now requesting: US$10 million, ten times larger than the biggest TRO bond in the history of the Brooklyn court district. To top it off, the government’s lawyers were not only still asserting that the case was a repeat of Baker; they had filed a motion calling for Koh to be personally sanctioned for bringing forward such a “frivolous” lawsuit. If their motion succeeded, Koh could lose his house. This at least was one similarity with Baker: the government was not going to be gentle.
Ten anxious days later, Elizabeth Detweiler and a dozen other students were milling around in Yale’s student-litigation office when Harold Koh came bursting into the room. The normally restrained law professor was yelling at the top of his lungs: “YOU GUYS! WE GOT IT! WE GOT THE TRO!”
Detweiler and the other students ran after Koh as he darted down the stairs to his small office on the floor below. With students crammed onto the couch and spilling out into the hall, Koh had Ratner recount via speakerphone the content of the highly favourable court order that was coming over his fax machine in New York. Ratner read aloud the document’s golden prose, which characterized the government’s policies as “arbitrary, capricious and perhaps even cruel.”
Most TROs are a page long. This one was over five, and Koh excitedly remarked, “Michael, have you ever seen a TRO this long before?”
“I don’t know,” an equally excited Ratner recalled. “I’ve never gotten a TRO before!”
“That kind of summed it,” Detweiler says of Koh and Ratner’s giddy exchange. “[Ratner] filed for this stuff all the time, but to win something like that for these clients, it doesn’t happen very much. As skilled a lawyer as Michael is, the kind of cases he chooses … he’s fighting for the underdog all the time, and you’re just not going to win those cases.” This time, the TRO suggested, a case launched on behalf of the underdog might have a different outcome.
The legal team hoped to press their advantage at a second hearing five days later. In the interim, Judge Johnson had granted the lawyers access to the Guantánamo airport (but not the base itself) to hurriedly conduct depositions and prepare witnesses among the refugees. While one group of lawyers and students rushed to arrange flights on U.S. military planes, the only way to access the base, another group travelled to Washington to interview government officials, while a third contingent returned to the Budget Inn in Miami to gather more refugee testimony.
Tory Clawson was one of students on the second Miami trip; they arrived at the Budget Inn with less than twenty-four hours to find refugees and take affidavits. Clawson recalls the team being overcome with panic when they realized the motel was deserted. But when another student, Michelle Anderson, went across the street to the office of Catholic World Service, she saw it was full of refugees and quickly began conducting impromptu interviews. Anderson soon went running back to the Budget Inn to share with the others a major discovery: she had found a refugee who knew about a woman who had passed the credible-fear interview on Guantánamo, only to be returned to Haiti and killed. “It was a huge find,” Clawson says. The death of a repatriated Haitian meant that irreversible harm was at issue in the interview process. “People were dying. It wasn’t just a procedural glitch.”
That night, students in Miami raced to send their discoveries back to Koh and the others. As Elizabeth Detweiler, who was also on the trip, says, “It was just crazy. There was a fax machine in the office of the Budget Inn and the hotel manager slept in the office. We woke him up two or three times that night to fax stuff to Harold. He must have thought we were crazy … [But] we got what the team needed, just in the nick of time.”
The night before the second hearing, the student-lawyer teams that had fanned out to Washington, Miami and Guantánamo all returned to the Simpson Thacher office in New York, where Koh and Ratner were sifting through the stacks of evidence the discovery teams had gathered. Late that night, Tory Clawson and several other students sat down with Koh in a small conference room to brief him on what they had found in Miami. The name of the woman who had been returned was Marie Zette, Clawson explained, presenting Koh with a carefully annotated folder of evidence. According to an affidavit sworn out by another refugee, Zette had passed her credibility interview on Guantánamo, only to be mistakenly sent back to Haiti. The night after her return, she was killed.
“Wait a minute, tell me that again,” Koh said. “She was murdered?”
Clawson looked up from her notes. Much to her surprise, tears were streaming down her professor’s face.
During the hearing the next day, Koh again became emotional as he read aloud from the affidavit about Marie Zette, who had been mistakenly returned to Haiti only a day before she was scheduled to be released from Guantánamo and admitted to the United States. “She sang about hurting and that she regretted having to go back to Haiti … because she feared for her life,” Koh told Judge Johnson’s silent court. “She was sent back to Haiti. The next day, the guards called her name to be sent to Miami. It was too late.” Koh’s voice was unsteady as he reached the end of the document. “The military police came at night and killed her while she slept.”
Like the other members of Team Haiti, Koh was exhausted from working twenty-hour days. His fraught emotions were partly a sign of the toll the case was taking, and also, perhaps, the realization of the scope of the responsibility that now rested with him. “I think if people didn’t know, they would think he was deliberately being melodramatic,” Clawson says, “but it was so emotionally disturbing.”
In addition to the story of Marie Zette, Koh presented the court with other material students had obtained in Miami, documenting that twenty-seven other refugees who had not only been screened in but told they would be taken to the United States were instead sent back to Haiti. Koh also noted that when Haitians at Guantánamo committed minor “infractions” such as speaking too loudly or asking for
a pair of sandals, they were sent to a punishment camp where they were forced to sleep on rocks. These and similar points of evidence were enough to win Team Haiti their second victory: Judge Johnson issued an injunction stopping repatriations until the case was heard in its entirety, which would not be until months later.
It was an incredible outcome. A ragtag band of human rights advocates had the United States government on the run, and the entire repatriation policy was suddenly hanging in the balance. Most incredible of all, the win was in large part due to the energy of a group of tirelessly devoted law students. Tory Clawson, Elizabeth Detweiler, Lisa Daugaard and the others had essentially put their law degrees on hold to work on behalf of Haitian refugees they had never met. Students contributed to law school legal clinics all the time, but the scope of their involvement in the Haitian refugee case was unprecedented.
Harold Koh would later write of the moment when he realized just how much the plight of Haitian refugees resonated with his students. In a law review article he described working in his office late at night, when the clinic was once again scrambling to complete a brief the night before it was due in court.
“Our litigation manager, a third-year law student, stuck his head in and asked if we would be cite-checking the brief before it was filed. I grunted that we could not do so without at least 10 cite-checkers. An hour later, I heard noises in the hallway and emerged to find 10 sleepy students waiting to cite-check sections of the brief. As I watched them disappear down the hall, I began to think that maybe we had a chance after all.”
A chance of winning a case they believed in. It was perhaps the best education any idealistic young law student could hope for.
Things began to go to hell shortly after the second hearing. Refugees were still streaming out of Haiti, and the Bush administration was in crisis mode. Its lawyers launched a blizzard of appeals to try to overturn the injunction as quickly as possible. At one point Koh argued against a motion over the phone while standing at a maître d’ stand in a New York hotel, while Ratner took part by cellphone from a New York Mets game. At first, Koh and Ratner swatted away the government’s challenges. But then the administration’s lawyers employed a rare legal manoeuvre known as an interlocutory appeal, according to which parties affected by an injunction can immediately seek a stay in the Supreme Court. Three weeks after Johnson’s injunction was issued, the Supreme Court narrowly voted 5–4 to suspend it.
It was a temporary setback: the injunction could be reinstated depending on the outcome of another hearing that had already been scheduled. But that hearing was still weeks away. In the meantime, the government was free to resume sending people back to Haiti—which it quickly proceeded to do. A day after the Supreme Court decision came down, the Yale team received a secret phone call from a sympathetic source at Guantánamo. “If there is anything you can do for your clients,” he said, “do it now; the government is beginning interviews and repatriations.”
Koh and the others were still reeling from news of the resumed repatriations several days later when they received a second, even more devastating, call from Guantánamo. A group of eighty-nine Haitians were going to be forcibly repatriated that night. The base authorities had told the refugees they had no right to speak to a lawyer, so they might as well do their second interviews without one. The Haitians refused and demanded they be allowed to meet with a Team Haiti lawyer named Robert Rubin, who had briefly met with them at the Guantánamo airport in March. Under no circumstances, the refugees said, would they take part in another interview without an attorney. The Haitians, dubbed the “refuseniks” by their legal team, were promptly herded onto a Coast Guard cutter. As they walked on board the ship that would carry them back to Port-au-Prince, they held their palms in the air in a Haitian gesture of peace.
The legal team was crushed. Tory Clawson took it especially hard. The feeling of helplessness, she says, after having come so far, was too much to bear. “Up until then we had been winning and everything had been going our way,” she says. “It felt amazing, as if nothing could stop us. I was a wide-eyed first-year law student who believed in justice and thought the court believed in justice too. But that was my first realization it doesn’t always go your way. I thought it was the most incredible injustice I had ever seen.”
Clawson was so upset that she announced a plan to light herself on fire in front of the Supreme Court. A classmate talked her out of it, as well as a subsequent plan to go on a hunger strike, by reminding her that neither action would make a difference for the refugees.
The larger legal team met that night in their office at Yale to determine a more pragmatic course of action. An emotionally drained Koh sat with his two-year-old son writhing on his knee, surrounded by exhausted and ashen-faced students. A sombre mood hung in the air as Koh went around the room asking each person what they thought they should do. Everyone present told Koh the same thing: whatever we do, we can’t do nothing.
“It was a very intense meeting,” says Lisa Daugaard. The argument about access to lawyers, she notes, was something of a pretext. It was enough to get a restraining order and an injunction, but access to lawyers was not ultimately what was at issue. Yet because the legal team had framed the court challenge as being about a right to an attorney, their clients were now in effect taking them at their word.
“They were asserting the very right that we said was so important. And as a consequence they were being repatriated,” says Daugaard. “And if we were really their lawyer then we had to do whatever we could do … I felt it was a very compelling moral obligation that we had at that point—because we had changed what they did by existing and asserting ourselves.”
Whatever path Team Haiti decided upon, they would have to act fast: the boat was leaving that night. The group dispersed to comb through law books and research their options, reconvening several hours later, at midnight. Someone mentioned the possibility of a habeas corpus petition, which garnered murmurs of assent. Such a petition would allow the legal team to directly challenge the government’s authority to hold the Haitians, without raising other, more contentious issues, such as whether or not the U.S. constitution applied at Guantánamo, an issue the opposing lawyers had debated before Judge Johnson.
Koh said he was worried about how long it would take to draft the necessary court papers. “We can’t even do a habeas,” he said. “There’s no way we can have it ready before they get back to Haiti.”
A voice spoke up from the back of the room. “Well, actually, I have one here.”
Everyone turned to face a third-year student named Paul Sonn. He had disappeared several hours previously and had now reappeared with a completely drafted petition of precisely the kind Koh and the others were discussing. “It was a class-action habeas, which is possible but very unusual, and required a lot of drafting,” recalls Lisa Daugaard. Like the others, she was inspired by Sonn’s foresight. Yet they were still faced with the problem of where to file their petition. They could not file it with Judge Johnson: he was the one who would ultimately decide the fate of all the detained refugees, and Koh did not want to risk Johnson’s displeasure by presenting him with a last-minute motion on behalf of a smaller group of clients, a motion that would only highlight the legal team’s desperation. Students were still scrambling at 2 a.m. to find an outside lawyer who could file the habeas motion in a different court district when Koh finally told them to go home.
“There’s nothing more we can do,” he said. Even if they could find a lawyer to file the petition, “no judge would issue an order to stop a U.S. military vessel on the high seas and reverse its course.”
Koh, Daugaard and the others later discovered that when the cutter pulled in to Port-au-Prince, members of the Haitian military were waiting for it on the dock. After the terrified Haitians refused to disembark, Coast Guard personnel forced them off the boat with firehoses.
Graduation day had come to Yale. First- and second-year law students had deserted the campus after finishing t
heir exams. Third-years in academic gowns and mortarboards assembled in the law school courtyard to hear commencement speeches and say goodbye to old friends. For Michael Barr and the six other third-years who had first discussed the possibility of a lawsuit, commencement formally marked the end of their involvement in the Guantánamo case. The seven graduating Team Haiti students were posing for pictures with Professor Koh and members of their families as mementos of their extraordinary time together, when someone came running up to Koh.
“Did you hear Bush has issued an order?”
“What’s the order?”
“Everyone who leaves Haiti is being sent back. Without an interview.”
Yale’s graduation coincided with the 1992 Memorial Day weekend, when President Bush was at his vacation home in Kennebunkport, Maine. From his beachfront estate he issued an executive order stating that everyone leaving Haiti by boat was to be repatriated. Now there would not be even the pretense of an asylum interview. Desperate Haitians would be returned no matter what they were running from or where they were running to. Boats leaving Haiti for the United States, for the Bahamas, for Jamaica—boats leaving Haiti period—would be intercepted by the Coast Guard and their passengers taken back to the main pier in Port-au-Prince. If anyone on board could expect to meet a fate similar to that of Marie Zette upon return, that was of no concern. As the legal team would put it, the Bush administration had effectively created “a floating Berlin Wall.”
Koh and the students huddled in the courtyard discussing what to do. Fighting an executive order by the president through the courts was a daunting challenge. On Team Haiti’s side would be the fact that the United States had signed the Refugee Convention, which meant it was obliged not to return refugees to danger. In addition, the United States had incorporated the same principle in its own domestic law (back in 1980, right before the Mariel boat lift). But on the administration’s side was the fact that the American system of government gives the president enormous latitude in the realm of foreign affairs, beyond the reach of any court. Koh and the others knew that the government’s lawyers could simply argue that the Kennebunkport order was a foreign affairs matter. If a judge agreed, that would be that: no legal challenge could apply. Yet as so often before, the legal team felt they could not do nothing. The students took off their graduation robes and headed back into the library and the clinic office to research their options.
