Thirteen Years at Guantánamo

Brandt Goldstein's gripping new book, Storming the Court: How a Band of Yale Law Students Sued the President - and Won recounts how, in the early 1990s, a group of Yale University law students and professors sued two United States presidents on behalf of 300 Haitian refugees held at the US naval base at Guantanamo Bay, Cuba.

As one of the professors who brought that case, like most Americans, I first heard about Guantanamo through the popular folk song Guantanamera ("The Girl from Guantanamo") and Jack Nicholson's unforgettable performance ("you can't handle the truth!") as a Guantanamo naval commandant in Rob Reiner's film A Few Good Men. But when we started the Haitian refugee litigation in 1992, I never dreamed that I would spend much of my next thirteen years captured by Guantanamo. How did Guantanamo become so much a part of my life, and of America's foreign policy?

In 1990, former Catholic priest Jean-Bertrand Aristide became Haiti's first freely elected president. But less than a year later, he was ousted by a military coup and the Haitian paramilitary launched a brutal campaign of killings, torture and arrests against his supporters. As boatloads of refugees began fleeing Haiti, the first Bush administration responded with a policy whereby the Coast Guard would "interdict" fleeing Haitians on the high seas and quickly "screen" them aboard boats, bringing to the United States only those few "screened-in" Haitians found to have "credible fears" of political persecution.

As refugee numbers swelled, the administration shifted to a new policy: interdiction and offshore detention of the Haitians in camps hastily erected at the forty-seven-square-mile US naval base in Guantanamo, an area slightly larger than Manhattan. The United States occupies that area under a unique, perpetual lease agreement entered with Cuba in 1903, which provides that "the United States shall exercise complete jurisdiction and control over and within such areas." After intense litigation in which I participated, in early 1992, the Atlanta federal court initially accepted the US government's arguments that Haitians held outside the United States had no rights to challenge the screening process, and the US Supreme Court declined to hear that claim. That decision led the Yale law students described in Storming the Court, Michael Ratner of New York's Center for Constitutional Rights, and myself to file suit in Brooklyn federal court against the US government on behalf of screened-in Haitian refugees and several Haitian service organisations. Our initial claim was that lawyers and clients had constitutional rights to speak to one another before the clients were returned to possible death or persecution in Haiti. We won preliminary court relief, requiring that the Haitians be afforded counsel before repatriation to Haiti.

But in May 1992, as large numbers of Haitians again began to flee, the United States policy shifted to a policy of deliberate direct return of Haitian refugees to Haiti, in blatant violation of the United Nations Refugee Convention (1951) and the US's Immigration and Nationality Act (1952). We quickly challenged this policy in court as well, and won a New York federal appeals court ruling against it. Amid this frenzy, then-presidential candidate Bill Clinton began voicing his opposition to what he called the Bush administration's "cruel policy." We therefore chose to delay Supreme Court review until after the November 1992 election, to give president-elect Clinton time to abandon both the then-President Bush's Haitian policies - direct return and Guantanamo internment. Although Clinton triumphed, just before taking office he abruptly reversed course and announced that he would maintain both Bush policies - in court, the government even adopted the Bush rationale that the Haitian detainees had no legal rights on Guantanamo.