Frontier Justice

by Andy Lamey

  Later that day, Koh participated in an emergency conference call with refugee advocates from across the country. Everyone agreed that some major action had to be taken. The key question was exactly what and by whom.

  “Let me try to get a restraining order,” volunteered Ira Kurzban from Miami, where he had once squared off against Kenneth Starr.

  Koh interjected: “Ira, they’ll just appeal it. In Baker you were getting restraining orders in the morning and losing them on appeal in the afternoon. We already have a case ongoing. We’re the best ones in a position to handle it.”

  The other attorneys and human rights advocates soon came around to Koh’s point of view: his team could act the quickest and had already researched the relevant issues. Within days Koh was back in court. Only now, he and his students were arguing not one case, but two.

  There was the original lawsuit involving 300 people, the HIV-positive refugees and their families. It was ongoing, the outcome uncertain. Alongside this challenge, christened “the Guantánamo case,” Team Haiti was now obliged to fight and somehow win the new “non-return case,” which affected the thousands of people who were trying to leave Haiti.

  It was with a sinking feeling that Koh sat down at his computer and began typing up yet another restraining order request. It increasingly seemed that if he and the other members of Team Haiti were going to win, they would have to look outside the courts. But what else could they do?

  THREE

  A FLOATING BERLIN WALL

  A MINUTE OF HER TIME. That’s what they had asked the Clinton people for. Hillary Clinton was coming to Yale, and Harold Koh wanted to meet with her while she was on campus. By rights it was an impossible request. The 1992 election was four weeks away, and every second of Clinton’s time during her visit was spoken for. But there was only one degree of separation between Koh and Hillary Clinton. Not only was Yale Law Clinton’s alma mater but she was coming to campus to speak at the law school’s alumni weekend. Koh knew some lawyers on the Clinton campaign team who said they would see what they could do. So it came to pass that, late on a windswept October afternoon, Koh and several of his students found themselves in a nondescript Yale meeting room, receiving Hillary Clinton and a young female aide as they came through the door.

  Koh got straight to the point. The Bush administration’s treatment of Haitian refugees raised serious human rights concerns. It was the view of Koh and the lawyers and students he was working with that the United States was in clear violation of its obligations under international law. Koh handed Clinton a briefing book that described the relevant legal issues with a concluding page of recommendations. It was designed, Koh says, “to impress on her the urgency of the situation.”

  As Koh rattled off his points, Clinton was responsive. According to Elizabeth Detweiler, one of the students present, “he knew the big points he wanted to hit, and as he started hitting them it was so clear that she had been briefed and she got it. She had this stuff. And you could just see Harold switch gears and go toward the more detailed analysis.… She was very receptive, so prepared and so bright. Naturally we were very heartened by that meeting.”

  Koh has a similarly positive memory of his meeting with Clinton, who told him, “I’m very proud of the work you’re doing and I’m very proud of my school.” Clinton said that she would take up the issue with her husband herself. After the meeting, Koh went to Yale’s Battell Chapel to see Clinton deliver a speech. “My wife and I were sitting on the aisle, and she gave this tremendous speech,” he says. “The whole place went wild. And afterwards she walked down the aisle. When she got to us she kind of winked at me. It was charming. I felt she was saying, ‘I’ve got this under control.’ ”

  It is not surprising that Koh would feel he was in good hands with Hillary Clinton. By the time of their October meeting, the Bush administration’s treatment of Haitians, particularly its Kennebunkport order, as the legal team referred to the policy unveiled on Memorial Day, had become an issue in the presidential campaign. Immediately after Bush’s announcement, Democratic candidate Bill Clinton spoke out against the repatriation policy. To this day, Harold Koh can quote by memory from Clinton’s statement:

  I am appalled by the decision of the Bush administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylum. It was bad enough when there were failures to offer them due process in making such a claim. Now they are offered no process at all before being returned.

  This policy must not stand. It is a blow to the principle of first asylum and to America’s moral authority in defending the rights of refugees around the world …

  As I have said before, if I were President I would—in the absence of clear and compelling evidence that they weren’t political refugees—give them temporary asylum until we restored the elected government of Haiti.

  Candidate Clinton would make many similar remarks throughout the campaign. As a consequence, he had few more devoted supporters than Ratner, Koh and their students. If Clinton won and changed the policy, their litigation would become unnecessary. The Haitians would be released from Guantánamo and admitted to the United States, and the legal team could start getting back to a normal routine of teaching and attending classes again.

  To hasten along that outcome, members of Team Haiti engaged in intense political lobbying. Michael Ratner remembers attending a fundraiser where he met with Bill Clinton face to face. “I was there because I had a family member who knew him,” Ratner says. “I talked to him about Guantánamo for ten to twelve minutes. He took out a notepad and took down notes.” Like his wife, Clinton had also gone to Yale Law School, and the Yale group had excellent contacts with Clinton’s campaign team, whom they bombarded with information about Guantánamo to ensure that it remained a live issue in the presidential campaign. Ratner and other members of Team Haiti also reached out to lobby groups such as ACT UP and the National Coalition for Haitian Refugees, who came together to form a coalition of contrasts, whistle-blowing gay activists working alongside traditional Catholic Haitians to oppose Bush’s refugee policy. After students sent out 100 press kits to the media labelled “The World’s First HIV Detention Camp,” television crews began to clamour to take their cameras to Guantánamo, which they were eventually allowed to visit.

  While all the outside political agitation was going on, Team Haiti also lobbied sympathetic members of the Bush administration. Michael Ratner, in particular, developed a surprisingly amiable relationship with Paul Cappuccio, the associate deputy attorney general who handled the Guantánamo case for the Justice Department. Guantánamo was classified by the military as a “well base,” meaning it had limited medical facilities, and this led to frequent negotiations between Ratner and Cappuccio regarding the release of sick or pregnant refugees. Although the two lawyers could hardly have been farther apart politically, Cappuccio’s Reagan-era Republicanism in stark contrast to Ratner’s sixties-style leftism, they developed a genuine regard for one another.

  “Paul really was a warm person and particularly attuned to what was going on for human beings,” Ratner says. “I think that’s the area we connected on. So if I would describe to him somebody having a baby or getting a kid out of there, or somebody going through complications with AIDS, he was quite sympathetic. And he would be willing to work on trying to get each person out one by one.”

  In an essay he published after the case was over, Ratner wrote that there were no coherent medical criteria to dictate which refugees the government would admit into the United States. “There was no reason why eye infections were deemed worse than brain infections or liver infections.” Perhaps more to the point, there were no clear political criteria. Negotiations between Cappuccio and Ratner resulted in a slow but steady trickle of Haitians allowed into the United States, eventually exceeding a hundred, or a third of the entire HIV group. They were attended to by organizations such as the AIDS Resource Foundation for Children, in New Jerse
y, an arrangement Yale students had made in order to gainsay any claims on the government’s side that allowing the refugees into the country would be too expensive. (One of the major unanswered questions of the entire case is why the government would freely admit almost a third of the HIV-positive refugees but go to strenuous lengths to deny entry to the rest.)

  Team Haiti eventually came to think of their efforts as having two components, a legal side and a political side. On the political side were the meetings with Bill and Hillary Clinton, the outreach work with Haitian and AIDS groups, days and nights spent finding a place for medically released refugees, and many other challenges. On the legal side were the two lawsuits themselves, and the many unanticipated and at times hair-raising dilemmas they gave rise to. But there was a third side, too. It was the one inhabited by the refugees themselves. And Guantánamo, it would turn out, would be the site of the most turbulent events of all.

  A group of thirty Haitian children played in the corner of the enormous airplane hangar. Their parents sat quietly nearby in metal chairs. In front of the seated refugees, a Haitian man holding a clipboard tested a microphone. As Harold Koh, Michael Ratner, Lisa Daugaard and a half-dozen other members of the Yale team entered the hangar, they could see that the man with the clipboard was in his late twenties, wearing black pleated pants, a crisp white button-down shirt and sunglasses. While the lawyers and students found their seats among a row of chairs facing the refugees, the man, without taking off his glasses, introduced himself as Michel Vilsaint and explained that he had been elected camp president. At Vilsaint’s signal, the refugees quietly stood and began chanting in unison a Creole slogan used by supporters of Jean-Bertrand Aristide: “Yon sèl nou fèb, ansanm nou fò, ansanm, ansanm nou se Lavalas.” Alone we are weak, together we are strong, together, together we are Lavalas.

  It was early October, less than a month before the 1992 presidential election, and mere days after Harold Koh’s meeting with Hillary Clinton. The Yale attorneys had been representing the Haitians for seven gruelling months, but only now had they been granted access to the base beyond the Guantánamo airstrip. The official reason for their trip (the same one that would leave Harold Koh with nightmares) was to discuss with their clients an offer the government had made.

  The government’s newfound willingness to negotiate was in part a reaction to a grim episode that had concluded not long before. In May of 1992, a refugee, Sillieses Success, had given birth to a boy she named Ricardo. Shortly afterwards, there was an altercation between the refugees and their guards, during which several Haitians set fire to some of the camp’s huts. In response, the military herded the refugees into open-air pavilions and kept them there for three days. This coincided with the Caribbean rainy season, and as a result of his exposure, Ricardo contracted pneumonia. In September he and his mother were evacuated to the United States to receive medical treatment, but it was too late, and Ricardo died two weeks after leaving Guantánamo. The government then proposed that his body be sent back to Guantánamo to be interred there rather than in American soil, but this aroused such fury on the part of both the legal team and Ricardo’s mother that the idea was dropped, and Ricardo was buried in the United States.

  A more conciliatory mood seemed to come over the government after that, at which point it raised the possibility of a settlement. For their part, Team Haiti had known all along that what they were fighting for—the right to talk to a lawyer—did not address the full needs of their clients, and so they were open to a negotiated outcome. The offer the negotiations eventually resulted in was the very thing the lawsuit was asking for: the HIV-positive group would be allowed to have lawyers present during their second interviews.

  But there was a catch. Even if the Haitians passed their second interviews—even if they met the higher standard for demonstrating a fear of persecution—the administration would not guarantee that anyone would be taken to the United States. Discussions would continue about sick or pregnant people being admitted on a case-by-case basis, but the overall ban on entry to the country would remain in place. Team Haiti had been fighting for access to lawyers not primarily as a good in itself, but as a delaying tactic to prevent forced returns, and to keep pressure on the government overall. Now they were faced with an offer from the government that would technically grant what their lawsuit was asking for, and in so doing highlight the limits of the purely procedural legal challenge they had been able to launch. If Team Haiti kept fighting in court, by contrast, there was a strong chance Clinton, who was leading in the polls, would win the presidential election and release the Haitians.

  The Yale team could not decide what was best for their clients without consulting them. So here they were in the airplane hangar, sweating in the tropical heat, finally able to meet the Haitians face to face. In addition to Ratner and Koh, the attorneys included Lisa Daugaard, who had left law school and was now working at the American Civil Liberties Union, where her duties included the Haitian refugee case. Accompanying the three attorneys were three students, Laura Ho, Tory Clawson and Veronique Sanchez, and three translators.

  The hangar was surrounded by armed military personnel, and the strange situation put Harold Koh in mind of a science fiction film. “It was almost like a scene from a movie where the humans and the aliens meet in some special hangar for the first time,” he says, “because we had heard about each other but without making any contact.”

  Initial contact would now take the form of a presentation by Koh, explaining to the Haitians where things stood with the lawsuit, and giving them an outline of the government’s settlement offer. On the military flight from Virginia, Koh had devoted considerable thought to what he was going to say, but now, as he finally saw the faces of people who had risked the Windward Passage in flight from unimaginable violence, it suddenly came home to him that the lawyers and their clients inhabited completely different worlds.

  “I was very struck by the huge visual difference between our [two] groups,” Koh says. “Me, Asian, and this bunch of [Asian and] white students and lawyers. The women students were wearing these long batik skirts and sandals because it was so hot. And here were the refugees on the other side of the same hangar, wearing T-shirts and athletic shorts and flip-flops. And I thought, ‘Gee, how can they relate to us?’ ”

  As if the cultural barriers were not enough, Koh also knew that military personnel had been telling the Haitians that they were being detained because of the actions of the legal team—a falsehood, but one that the Yale group would have to put to rest if they were to gain their clients’ trust.

  Koh stood and addressed the expectant Haitians through a translator. “I know you’re all wondering who is this Chinese or Japanese person and why is he here,” Koh said before pausing for a moment. “The thing is, I’m actually Korean.”

  Laughter and murmurs of “Kore, Kore” came from the Haitians. Encouraged, Koh took out a photograph of his father and explained that he, too, had been a political refugee. “Like you, my father was born in another country. Like you, he wanted to live in a free country. Like you, he left his country and came to America. America took him in, and because of that I became a lawyer. It’s because of my father that I fight for you.”

  Koh’s father had sought asylum in the United States after a coup overthrew the South Korean government in 1960. The refugees nodded: this they could certainly understand. After Koh finished his remarks, Michel Vilsaint and other members of the camp leadership met with Koh to listen to what the lawyers had to say. It was as if, slowly and tentatively, the Haitians were dismantling the wall of mistrust that separated them from their would-be advocates: a wall that seemed as well fortified as the perimeter of land mines and razor wire around Guantánamo itself.

  Within twenty-four hours the wall was back up. The legal team had divided into three groups, each made up of a lawyer, student and translator, to explain the details of the settlement offer to groups of two dozen refugees. As she headed into her meeting in a portable traile
r, Lisa Daugaard was already feeling overwhelmed. In her view, the fundamental dynamics of the case had dramatically changed. No longer were the legal team’s efforts primarily devoted to coming up with abstract legal arguments on behalf of a group of strangers who were themselves still something of an abstraction. Now there were flesh-and-blood human beings involved, actual clients. But as Daugaard tried to initiate a normal attorney-client meeting, she began to wonder if it would work.

  The refugees had organized their meeting so that they would rotate through a hot seat while Daugaard sat across the table and answered their questions through an interpreter.

  Refugee one: How can we trust you? You’re just in this for the money.

  Daugaard: Oh no, no. We’re not getting paid.

  Refugee two: Well if that’s the case, obviously we can’t trust you, because you’re such bad lawyers no one will pay you and you have to work for free.

  Daugaard: Oh no, no. We’re very good lawyers. There’s this thing called pro bono …

  Refugee three: Well if you’re working for charity we can trust you even less, because there’s nothing motivating you to do a good job!

  On and on it went. Daugaard felt increasing despair at each answer. “The amount of scepticism was overwhelming,” she says. On top of that, she was suffering from sleep deprivation because of all the hours she had been putting into the case. Now she had travelled over a thousand miles to this unnerving military environment, only to realize that the people on whose behalf she had been working considered her part of the problem. Tears began streaming down her face.