Frontier Justice

by Andy Lamey

  14 “It’s no place to do an interview” Beck, “Cast Away.”

  15 “analogous to a fish-processing ship” “Furor Erupts over U.S. Policy on Haitian Boat People,” Interpreter Releases, vol. 68, no. 45 (November 25, 1991), p. 1686.

  16 “I’m Jewish and my father” Michael Barr interview, June 9, 2005. All subsequent Barr quotes are from this interview.

  17 “the most important refugee case” Michael Ratner, “How We Closed the Guantánamo HIV Camp: The Intersection of Politics and Litigation,” Harvard Human Rights Journal, vol. 11 (1998), p. 220.

  18 “I saw bed sheets tied to masts” Beck, “Cast Away.”

  19 “he talked about how Bush” Laura Ho interview, March 9, 2005.

  20 “We had personal ties to a number” Ratner, “How We Closed the Guantánamo HIV Camp,” p. 193.

  21 Whispers that it had something to do with HIV Clawson et al., “Litigating as Law Students,” p. 2351.

  22 “We were like, ‘Yeah!’ ” Elizabeth Detweiler interview, March 8, 2005. Unless otherwise indicated, all subsequent Detweiler quotes are from this interview.

  23 The Refugee Center had access to only five lawyers. Harold Maas, “Law Students Spend Break Helping Haitian Refugees,” Miami Herald, March 16, 1992, p. 1B.

  24 “suddenly we saw we were part of something” Victoria Clawson interview, June 11, 2005. Unless otherwise indicated, all subsequent Clawson quotes are from this interview.

  25 “They were keeping Haitians on the top” Ira Kurzban interview, June 11, 2005. Unless otherwise indicated, all subsequent Kurzban quotes are from this interview.

  26 “Under current practice, any aliens” Haitian Refugee Center v. Baker page 23.

  27 “Everybody thought it was a great thing” Joe Tringali interview, March 16, 2005. All subsequent Tringali quotes are from this interview.

  28 “Are there not enough homosexuals” http://www.aids.org/atn/a-128-03.html, last accessed August 16, 2008.

  29 “It was really a great feeling to get” Lisa Daugaard interview, June 20, 2005. Unless otherwise indicated, all subsequent Daugaard quotes are from this interview.

  30 “identical in form and substance, or as nearly so as possible” Rees memo, quoted in Clawson et al., “Litigating as Law Students,” p. 2352.

  31 “was asking for something ‘as American …” ’ Ratner, “How We Closed the Guantánamo HIV Camp,” p. 197.

  32 “I am from Bed-stuy” Daugaard interview.

  33 “She sang about hurting” Quoted in Clawson et al., “Litigating as Law Students,” p. 2357.

  34 “Our litigation manager” Koh, “Reflections on Refoulement,” p. 6.

  35 “If there is anything you can do for your clients” Clawson et al., “Litigating as Law Students,” p. 2358.

  36 “There’s nothing more we can do” Clawson et al., “Litigating as Law Students,” p. 2359.

  37 “a floating Berlin Wall” Clawson et al., “Litigating as Law Students,” p. 2345.

  CHAPTER 3: A Floating Berlin Wall

  1 “I am appalled by the decision” Quoted in Harold Hongju Koh, “Reflections on Refoulement and Haitian Centers Council,” Harvard International Law Journal, vol. 35, no. 1 (Winter 1994), p. 2.

  2 “There was no reason why eye infections” Michael Ratner, “How We Closed the Guantánamo HIV Camp: The Intersection of Politics and Litigation,” Harvard Human Rights Journal, vol. 11 (1998), p. 206.

  3 The National Coalition for Haitian Refugees The organization is now called the Haitian Coalition for Haitian Rights.

  4 It was the one inhabited by the refugees themselves. In the years since their detention, the refugees housed at Guantánamo have repeatedly said through intermediaries that they prefer not to be interviewed about their experiences. For this reason, quotations from the refugees in my account are all from written sources or reconstructed from interviews with the legal team.

  5 “Yon sèl nou fèb” Victoria Clawson, Elizabeth Detweiler and Laura Ho, “Litigating as Law Students: An Inside Look at Haitian Centers Council,” Yale Law Journal, vol. 103 (1994), p. 2365.

  6 Refugee one: How can we trust you? Daugaard interview, June 20, 2005.

  7 “You’re working with these people?” Ronald Aubege interview, Spring 2005. All Auberge quotes are from this interview.

  8 “I was hurt.” Ronald Aubege interview.

  9 “My name is Harold Michel.” Clawson et al., “Litigating as Law Students,” p. 2366.

  10 Later, Lisa Daugaard speculated Brandt Goldstein, Storming the Court: How a Band of Yale Law Students Sued the President—and Won (New York: Scribner, 2005), p. 168.

  11 “Don’t count on me anymore” Clawson et al., “Litigating as Law Students,” p. 2375.

  12 “sick faggots” Lybi Ma, “Susan Sarandon: Speaking Out,” Psychology Today, May/June 2003, p. 30.

  13 “Refoulement, by contrast” McNary v. Haitian Centers Council, Brief for the Petitioners, p. 39, Westlaw database number 1992 WL 541276.

  14 “Limited territorial scope” McNary v. Haitian Centers Council, Brief for the Petitioners, p. 36.

  15 “Well, before you sit down” Sale v. Haitian Centers Council, Oral Argument Transcript, March 2, 1993, p. 12, Westlaw database number 1993 WL 754941. Note that the name of the case changed when Clinton took office and replaced INS Commissioner Gene McNary with Acting Commissioner Chris Sale.

  16 “all stood up and started cheering” … “When you left the Haitians on the dock” Quoted in Clawson et al., “Litigating as Law Students,” pp. 2383, 2384.

  17 “Each year many ‘non-immigrants’ ” Haitian Centers Council v. Sale, Eastern District of New York, 1993, 823 F. Supp. 1082, pp. 62, 65. This decision and the Supreme Court decision have similar names but should not be confused. In the Supreme Court case, the parties’ names are reversed and Sale comes first.

  18 A Hatian man named Jean Jean is a pseudonym.

  19 “an arcane and highly dubious interpretation” Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), p. 163.

  20 “disingenuous” James Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005), p. 337.

  21 “the Dred Scott case of immigration” Thomas David Jones, “A Human Rights Tragedy: The Cuban and Haitian Refugee Crises Revisited,” Georgetown Immigration Law Journal, vol. 9, no. 3 (1995), p. 523.

  22 “Under [the government’s] reading” Office of the United Nations High Commissioner for Refugees, “The Haitian Interdiction Case 1993 Brief Amicus Curiae,” International Journal of Refugee Law, vol. 6, no. 1 (1994), p. 91.

  23 “The Supreme Court’s citations are often adrift” Guy Goodwin-Gill, “The Haitian Refoulement Case: A Comment,” International Journal of Refugee Law, vol. 6, no. 1, pp. 104–5.

  24 “necessarily looks ‘to’ the place” Quoted in Office of the United Nations High Commissioner for Refugees, “The Haitian Interdiction Case,” p. 87.

  25 “The bar to repatriations was exacerbating” McNary v. Haitian Centers Council, Brief for the Petitioners, p. 5.

  26 “Well, that’s a worthy problem” John F. Harris, The Survivor: Bill Clinton in the White House (New York: Random House, 2005), p. 6.

  27 One person present at the Little Rock meeting Goldstein, Storming the Court, p. 199.

  28 “Some of the criticism on the Haitian issue” Bill Clinton, My Life (New York: Knopf, 2004), pp. 467, 463–64.

  29 “a complete sham” Bill Frelick, “In-Country Refugee Processing of Haitians: The Case Against,” Refuge: Canada’s Periodical on Refugees, vol. 21, no. 4 (2003), p. 68.

  30 it would be “suicide” Quoted in Frelick, “In-Country Refugee Processing of Haitians,” p. 67.

  31 “Our complaint was not with Guantánamo per se” Koh, “Reflections on Refoulement,” p. 19.

  32 a “clever ploy” and a “Machiavellian device” Iain Guest, “Refugee Policy: Leading Up
to Governors Island,” in Georges A. Fauriol ed., Haitian Frustrations: Dilemmas for U.S. Policy, (Washington: Center for Strategic and International Studies, 1995), p. 80.

  33 “Citing the example of the Haitian refugees” Bonaventure Rutinwa, “The End of Asylum? The Changing Nature of Refugee Policies in Africa,” New Issues in Refugee Research, Working Paper no. 5 (UNHCR, May 1999), p. 20.

  34 17,254 Haitians, slightly less than the 18,230 Cubans United States Coast Guard, “Alien Migrant Interdiction,” available at http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/FY.asp, last accessed October 24, 2010.

  35 Although the shout test purportedly allows Bill Frelick, “ ‘Abundantly clear’: Refoulement,” Georgetown Immigration Law Journal, vol. 19, no. 2 (2004), p. 246.

  36 In 2005, when 1,850 Haitians were interdicted Human Rights Watch, “Submission to the Committee on the Elimination of all Forms of Racial Discrimination: During its Consideration of the Fourth, Fifth, and Sixth Periodic Reports of the United States of America CERD 72nd Session,” Volume 20, No. 2(G) (2008), p. 14. The same Human Rights Watch report notes on page 13 that the shout test is administered to interdictees of any nationality other than Cubans and citizens of China (who are given a written questionnaire that allows them to indicate a fear of persecution). “However, as a practical matter, Haiti is the only other county whose nationals seeking asylum arrive by sea in significant numbers.”

  37 I have made it abundantly clear Frelick, “Abundantly Clear,” p. 245.

  38 “I want them on Guantánamo” Quoted in Luiza Ch. Savage, “Could the Next President Be Even Scarier?” Maclean’s, November 12, 2007, p. 38.

  39 become purely “metaphysical” Martin Puchner, “Guantánamo Bay,” London Review of Books, December 16, 2004, p. 7. Puchner is echoing a phrase that came up in Rasul v. Bush, a Supreme Court case dealing with the rights of enemy combatants held at Guantánamo.

  40 the writings of contemporary political scientists The distinction between sovereignty as recognition and sovereignty as control is taken from Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999), p. 4. Krasner’s more precise terms for these two aspects of sovereignty are “international legal sovereignty” and “domestic sovereignty.”

  41 “We became aware of a right to have rights” Arendt, Origins, 296-7.

  42 “If you want a definition of this place” Quoted in David Rose, Guantánamo: The War on Human Rights (New York: New Press, 2004), p. 22.

  43 “for the purposes of protecting” Sale v. Haitian Centers Council, Oral Argument Transcript, p. 7.

  44 “This case presents a painfully common situation” Sale v. Haitian Centers Council, http://www.law.cornell.edu/supct/html/92-344.ZO.html, last accessed August 21, 2008.

  45 “their plight is not that they are not equal” Hannah Arendt, The Origins of Totalitarianism, new edition (London: George Allen and Unwin, 1967), pp. 295–96.

  46 “the scum of the earth” Arendt, Origins, p. 269.

  CHAPTER 4: The Fatal Shore

  1 One night in 1994 Al Ghazzi was at home Details of Mohammad Al Ghazzi’s arrest and flight are taken from interviews with Al Ghazzi, November 12, 2008, February 17, 2009, and September 17, 2009, and Anne Buggins, “Still Drowning in SIEV X Horror,” The West Australian, October 14, 2006. Unless otherwise indicated, all subsequent Al Ghazzi quotes are from these three interviews.

  2 “the intimidating presence of all-powerful” U.S. Committee for Refugees, “World Refugee Survey 2000—Syria,” http://www.unhcr.org/refworld/country,

  USCRI,SYR,4562d8cf2,3ae6a8cb4c,0.html, last accessed September 11, 2009.

  3 “People will come to maybe escape” Michelle Dimasi interview, December 16, 2008.

  4 Between 1992 and 1998 an average of 115 people Joint Standing Committee on Migration, Not the Hilton: Immigration Detention Centres: Inspection Report (Canberra, 2000), p. 74.

  5 At first they came from Vietnam Andreas Schoenhardt, Migrant Smuggling: Illegal Migration and Organized Crime in Australia and the Asia Pacific Region (Leiden, Holland: Martinus Nijhoff, 2003), p. 148.

  6 following the rise of an “Iran for the Iranians” movement Human Rights Watch, By Invitation Only: Australian Asylum Policy, Section IV, “Why Refugees Flee Their Own Regions,” http://www.hrw.org/legacy/reports/2002/australia/

  australia1202-03.htm#P416_91971, last accessed September 17, 2009; Sue Hoffman interview, November 12, 2008.

  7 Curtin Detention Centre, as it was called Details taken from Mohammad Al Ghazzi interview, November 12, 2008; Australian Human Rights and Equal Opportunity Commission, “Report on the Human Rights Commissioner’s Visit to Curtin IRPC in July 2000,” http://www.hreoc.gov.au/

  human_rights/immigration/curtin.html, last accessed September 11, 2009. See also “Conditions in Curtin Detention Centre, http://www.refugeeaction.org/inside/curtin.htm, last accessed September 11, 2009.

  8 “You couldn’t really design” Quoted in Linda Briskman, Susie Latham and Chris Goddard, Human Rights Overboard: Seeking Asylum in Australia (Melbourne: Scribe, 2008), p. 189.

  9 “By the time they have been in detention” Quoted in Penelope Debelle, “What Happened at Curtin?” The Age, May 5, 2001.

  10 “Where are human rights? Where is freedom?” Peter Mares, Borderline: Australia’s Response to Refugees and Asylum-Seekers in the Wake of the Tampa, second edition (Sydney: University of New South Wales Press, 2002), p. 10.

  11 Curtin’s “subhuman” conditions Mares, Borderline, p. 13.

  12 Conditions improved after the hunger strike “Report on the Human Rights Commissioner’s Visit to Curtin IRPC”; Mares, Borderline, p. 33.

  13 a Norwegian cargo ship, MV Tampa Details of the Tampa episode are taken from Mares, Borderline, pp. 121–23.

  14 “We simply cannot allow a situation” “High Stakes for Howard,” BBC News, http://news.bbc.co.uk/2/hi/asiapacific/1517183.stm, last accessed September 11, 2009.

  15 a rotting old fishing vessel Details of Raghed’s voyage are taken from Arnold Zable, “Perilous Journeys,” Eureka Street, http://eurekastreet.com.au/articles/0304zable.html, last accessed September 11, 2009, and Briskman et al., Human Rights Overboard, pp. 43–48. See also the collection of resources about the sinking at www.SievX.com.

  16 as if the gate to hell had opened Zable, “Perilous Journeys.”

  17 “I didn’t see for seven days” Buggins, “Still Drowning in SIEV X Horror.”

  18 “bored and fed up with accounting” Sue Hoffman interview, November 12, 2008. All subsequent Hoffman quotes are from this interview.

  19 “criminals” and “law-breakers” Margaret Piper, “Australia’s Refugee Policy,” The Sydney Papers, vol. 12, no. 2 (2000), p. 88.

  20 Many people have claimed they had relatives on that boat The official actually said, “Many people have claimed they had relatives on SIEVX, more than the boat could carry.” SIEVX was the government’s term for Raghed’s boat, an acronym for Suspected Illegal Entry Vessel number 10.

  21 many of the most extreme policies were revised For changes to Australia’s asylum policies see Briskman et al., Human Rights Overboard, pp. 385–89.

  22 turned away Jews fleeing Hitler’s Germany The MP was Petro Georgiou. See Margot O’Neill, Blind Conscience (Sydney: UNSW Press, 2009), p 171.

  23 “I have been in detention” Briskman et al., Human Rights Overboard, p. 100.

  24 the Pacific Solution was called into question See Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA41 (11 November 2010).

  25 “Even if he is penniless” Hannah Arendt, The Origins of Totalitarianism, new edition (London: George Allen and Unwin, 1967), pp. 286–87.

  26 “Australian-style annual limit” Conservative Party, “Controlled Immigration,” http://image.guardian.co.uk/sys-files/Politics/documents

  /2005/01/24/conservativesimmigration.pdf 2005, p. 3.

  27 “Canada and the United States ne
ed only look” Diane Francis, “Australia Fixed Its Immigration Problem, We Should Do the Same,” The Province (Vancouver), October 28, 2001.

  28 “I mean, it’s called the doctors’ wives syndrome” O’Neill, Blind Conscience, p. 225.

  29 “the minister swivelled around” Mares, Borderline, p. 111.

  30 “incentive pull factors” “Transcript of the Prime Minister the Hon. John Howard MP Joint Press Conference with the Minister for Immigration the Hon. Philip Ruddock MP Sydney, 1 September 2001,” http://www.sievx.com/articles/psdp/

  20010901HowardRuddockConf.html, last accessed September 11, 2009.

  31 “People are forsaking opportunities” Philip Ruddock, “Meeting the Basic Needs of Genuine Refugees,” Canberra Times, December 14, 2001.

  32 “a system combining mandatory, automatic” Working Group on Arbitrary Detention, quoted in Briskman et al., Human Rights Overboard, p. 59.

  33 fifteen instances in which rejected asylum-seekers were killed Briskman et al., Human Rights Overboard, pp. 233–36.

  34 A UNHCR office in Jakarta Human Rights Watch, By Invitation Only: Australian Asylum Policy, Section VI, “Why Refugees Do Not Remain in Transit Countries,” http://www.hrw.org/legacy/reports/2002

  /australia/Australia1202-05.htm#P589_136885, last accessed September 11, 2009.

  35 “Indonesia unequivocally refuses” Human Rights Watch, By Invitation Only: Australian Asylum Policy, Section VII, “Measures Used by Australia to Deter ‘Uninvited’ Refugees,” http://www.hrw.org/legacy/reports/2002

  /australia/australia1202-06.htm#P804_201317, last accessed September 11, 2009.

  36 over eleven thousand were eventually recognized as refugees Briskman et al., Human Rights Overboard, p. 20.

  37 “Often refugees have come from situations” Matthew Gibney interview, spring 2003.

  38 “involves instrumentalising innocent people” Quoted in Briskman et al., Human Rights Overboard, p. 12.

  39 problem of the ethical state Gibney interview.

  40 111 children attempted to reach Australia Sue Hoffman, “Temporary Protection Visas & SIEV X,” http://www.sievx.com/articles/challenging/2006/