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Mission to Guantánamo
In 1992, a band of law professors and students sued the US government for the right to visit their Haitian clients. The feds played hardball.
by Brandt Goldstein ’92JD
September/October 2005
Brandt Goldstein ’92JD has written for Slate.com and the New York Times. This article is adapted from his forthcoming book, Storming the Court.
In 1991, a coup forced out Jean-Bertrand Aristide, the first democratically elected leader of Haiti. In the bloody chaos that followed, thousands of Haitians fled the country. Most tried to reach the United States. But under orders from the first Bush administration, the Coast Guard intercepted their boats and returned the passengers to Port-au-Prince and possible death.
After a lawsuit halted the policy, the government started housing the refugees at the U.S. naval base in Guantánamo. An appeals court soon overruled the decision, and the forced repatriations began anew. Aided by a group of idealistic Yale Law School students, Harold Hongju Koh, a popular but then untested professor (now dean of the school), and Michael Ratner, a visiting professor and seasoned New York City attorney who had litigated many human rights lawsuits, filed Haitian Centers Council v. McNary. The case attracted national attention.
In Storming the Court: How a Band of Yale Law Students Sued the President—and Won (to be published by Scribner this month), Brandt Goldstein ’92JD tells the story of a remarkable case that consumed the professors and a changing group of students for the next year and a half. In this article, adapted from the book, “Team Haiti” meets its first hurdle: the Justice Department’s move to get the case dismissed and to have Yale, and Koh, punished with financial sanctions.
Harold Hongju Koh, Michael Ratner, and a group of Yale law students powwowed over lunch in the dreary, windowless cafeteria of Brooklyn’s federal courthouse. What they’d learned about Sterling Johnson Jr., the judge picked at random to hear their case, was not good. A Bush appointee, Johnson had only been confirmed a few months earlier. That meant he was still adjusting to the heavy demands of the position, and it seemed unlikely that he’d want to probe a complex foreign policy operation ordered by the president who had put him on the bench. Worse yet, Johnson had served as New York City’s special narcotics prosecutor for the past 15 years. That background probably meant a judge sympathetic to the government, and jaded, if not downright hostile, when it came to claims of federal wrongdoing.
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“These people are being sent back to Haiti, and they could be tortured or killed.” |
They could not have done worse, Koh decided. And yet there had been that curious remark by the government attorney defending against their case when Johnson’s name was chosen. “Interesting pick,” he had murmured. “Very interesting pick.”
Before going into court, Koh took a moment to run through his argument for Ratner and the students. (Those present that day included Sarah Cleveland ’92JD, Graham Boyd ’87, ’92JD, and Lisa Daugaard ’95JD.) He started to go on as if he were in class, launching into a lecture that seemed to cover all of immigration law. After a few minutes, Ratner held up his hand. ‘Harold, look. You’ve got the law down cold, but that’s not what matters. Get to the point: these people are being sent back to Haiti even as we speak, and they could be tortured or killed. You just have to repeat that 20 different ways.”
The students looked at one another. Harold getting criticized: that was something new.
Koh listened in silence. He started wondering if Ratner should take over. He was the experienced lawyer, after all. He'd been through dozens of these hearings. But then Koh shook off the thought. He'd agreed to be lead counsel. It was his responsibility.
It was mid-afternoon when the team arrived outside Johnson’s courtroom. Koh dropped his heavy briefcase on the floor, and the students waited nervously. Ratner wandered over to the courtroom door and peered through the small window. He froze. “Harold,” he hissed. “Harold, come here.”
Everyone crowded around as Koh pressed his face against the glass. There, at the far end of the courtroom, sat Judge Johnson. He was addressing several lawyers. He looked to be about 55 or 60 years old, with a puffy face and a broad frame. And he was black.
Adrenaline bolted through Koh. Interesting pick indeed, he thought.
“Haitian Centers Council versus McNary,” called the courtroom deputy, and Judge Johnson nodded to the lawyers.
“Good afternoon,” Johnson said in a firm, friendly baritone. “Welcome to the Eastern District.”
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Koh tried a technical maneuver to steer the case to a liberal judge. |
Unusually polite judge, Koh thought. Even nice. Then he stepped to the podium and introduced himself. “May it please the Court,” Koh began. “We are here today on behalf of Haitian refugees who have … have fled their homeland to, uh, escape political persecution,” he stammered.
Back in the gallery, Lisa Daugaard fidgeted with her pen. That morning, Koh had tried a technical maneuver to steer the case to a liberal judge, but the judge had angrily ordered him to take the papers back to the clerk to have the matter reassigned. The harsh encounter seemed to have thrown Koh off balance. Lisa had never seen him, a man of such intellectual confidence, this nervous before.
“Over fifteen hundred supporters of the ousted president, Jean-Bertrand Aristide, have been killed in politically motivated violence, and the Haitian military is hunting people down,” Koh continued in an unsteady voice. “Many have left the country by boat, and what the U.S. government is doing is sending Coast Guard cutters into the waters off of Haiti to intercept them.”
Johnson was listening intently, so Koh plunged on, describing Guantánamo, the screening process, and the repatriations. Finally, the judge started asking questions, in an easy, conversational tone. “How are they holding these people on Guantánamo?”
“None of us have been down there, Your Honor. The reports say there are tents, and they’re surrounded by razor wire.”
“Razor wire?”
“Yes, Your Honor. These aren’t prisoners of war. They’re refugees, unarmed people who’re fleeing violence and persecution in their own country.”
“Now, what are these interviews you’re talking about?”
“They’re screening interviews, Your Honor, to determine whether someone has a possible claim for political asylum.”
“And you’re saying these interviews aren’t being conducted properly?”
“That’s right, Your Honor. They’re interviewing some people twice and there’s just a lot of confusion. They’ve lost interview records, they’re sending people back by mistake—”
“Who’s doing this? You said the United States military?”
“It’s the INS who’s in charge of screening. The Coast Guard stops the boats and takes people back to Haiti. But it’s the military running the camp.”
“Well, they’re on a naval base. There’s a need for order.”
“Yes, Your Honor. We don’t dispute that. And we don’t dispute that the INS can be conducting these interviews. All we’re saying is, the interviews have to be fair, and these people have a right to speak with a lawyer before being sent back to a place where they might be killed.”
“Have you been denied access to your clients?”
“Yes, Your Honor,” Koh said. “Our claim here is there’s a First Amendment right for lawyers to communicate with their clients. That right has been denied, even though the government’s letting others on the base, other nonmilitary people. For instance, they’re letting on priests.”
“Why not lawyers?”
“Well, that’s our question, Your Honor.”
“Now, do we have res judicata here?”
It was a crucial question. A previous lawsuit to halt the forced repatriations—Haitian Refugee Center v. Baker—had been dismissed by an appeals court, and the legal doctrine known as “res judicata” forbade bringing up the same matter twice. But Koh argued that there were key differences between his case and the earlier Baker litigation. For one thing, he explained, the INS had instituted a new asylum interview procedure after Baker was over—a procedure that had never been reviewed by a court.
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Kenneth Starr was coming in? Tomorrow? |
Before Koh could continue, Johnson cut him off and asked to hear from the government. Deflated, Koh sat down. Ratner leaned over. “We’re doing fine,” he whispered. “And frankly, I think we’re doing a lot better than that.”
Scott Dunn was up now, and talking quickly. “You just touched on the most important thing when you asked if there’s a preclusive effect here. Absolutely. Res judicata bars this whole suit. This is exactly the same case the plaintiffs filed in Baker and lost.”
As he spoke, Dunn gestured with his right hand for emphasis. “Plaintiffs have been trying to use the courts to decide matters of national security, in place of the Defense Department, the Department of State, and the president himself. The courts,” Dunn declared, “have already decided that’s improper.”
Koh stole a glance at Johnson. He couldn’t be sure, but the judge’s eyes seemed to be narrowing.
“Unless Your Honor decides to dismiss the case immediately, the government will request a continuance of the hearing until tomorrow morning,” said Dunn. “The solicitor general himself will come in from Washington tomorrow to address this court.”
Lisa nudged fellow law student Graham Boyd. Kenneth Starr was coming in? Tomorrow?
“I don’t think I have to tell you how uncommon that is. The solicitor general rarely, if ever, appears in district court and—”
“Mr. Dunn. “ The judge leaned forward and stared at the attorney. “You go right ahead and bring the solicitor general in here, or anyone else you want. But don’t think that’s going to change one thing that happens in this courtroom. I’m from Bed-Stuy, and I am not going to be intimidated.”
Dunn looked as if he'd been punched. The hearing, Johnson added firmly, would resume the next morning at nine.
The students bounded out of the courthouse, ebullient. Their judge was a Bush appointee and they were challenging a Bush policy, and there was a long, long way to go. But Bedford-Stuyvesant was one of the toughest neighborhoods in Brooklyn, and Sterling Johnson Jr. hadn’t survived there by letting people push him around.
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Haitian community leaders were in the gallery, and reporters were canvassing the crowd. |
When Koh reached the courtroom the next morning with Ratner, it was buzzing with activity. Haitian community leaders were in the gallery, and reporters were canvassing the crowd. Several new government lawyers were present, though Starr was nowhere to be seen. Dunn was struggling with a large pushcart piled high with boxes. He pulled out stack after stack of papers, dropping them on defense counsel’s table with a thud.
Lisa and Sarah ran up the aisle, breathless, and plunked their own set of papers on the table in front of Koh. Their faces were gray, their eyes swollen. They'd finished proofreading and copying the complaint at five in the morning. Ratner flipped through the papers. “This is beginning to look like a real case,” he said with a grin.
When Johnson resumed the hearing, Koh ran through all the papers he was submitting, including a document from Miami detailing INS interview procedures on Guantánamo. It had been faxed up to New York at 3 a.m. “We have students who are working with us down in Florida,” Koh explained. The judge nodded with a hint of a smile.
Starting to feel more comfortable, Koh began to tick off the legal claims in the complaint with his usual one-two-three approach. By the time he reached the last claim—Lisa’s equal protection theory—he was in full throttle.
“We think what is really going on in this case is separate but unequal,” Koh said. “There are now two asylum tracks. There’s one asylum track for everybody else and then there’s a separate asylum track for black Haitians that’s being administered on Guantánamo. If you’re a black Haitian on Guantánamo, you don’t get a lawyer, you don’t get an appeal, you don’t get anything. What’s the harm of letting lawyers talk to their clients? What’s the harm of having clients talk to their lawyers? What’s the harm of giving one asylum process to everybody?”
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“Piano tuner? What’s a piano tuner being allowed on Guantánamo for?” |
What still grabbed Johnson’s attention was the ban against lawyers on the base. “You mentioned yesterday,” the judge said, “that there are other people who’ve been granted admittance to Guantánamo.”
“The people that have been allowed on are priests and the press. So newspaper reporters are there and people from the television media are there,” he said. Then he remembered something else. “A piano tuner was allowed on Guantánamo.”
Johnson’s eyebrows shot up. “Piano tuner? What’s a piano tuner being allowed on Guantánamo for?”
Koh couldn’t resist. “I guess the Haitians are allowed to play the piano but not allowed to get a lawyer before they file for asylum, Your Honor.”
Johnson cracked a grin. Koh could feel the momentum swinging his way. “It may be one thing to say we can’t let anybody come on the base,” he said. “But to let some people come on and not others because you’re afraid of what they might hear or say, that’s a content-based denial of First Amendment rights.”
Content-based denial: the government allowing some forms of speech but not others. The Supreme Court rarely allowed it.
“The government has put our clients in limbo,” Koh summed up. “They are people without a country. They can’t get in. They can’t get out. They can’t get help, and now the government is saying no court can review what’s going on. We think, Your Honor, that that’s an emergency situation that requires judicial intervention.”
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In the right court, before the right judge, Valentine might have carried the day. |
Steven Valentine, an official with the civil division of the Department of Justice (DOJ), was the new government spokesman. Valentine repeated the res judicata argument: this case had already been litigated and decided; it’s over. And in the right court, before the right judge, Valentine might have carried the day. But Johnson was now plainly concerned about the situation on Guantánamo.
The naval base, the judge pointed out, was under the “complete control and jurisdiction” of the American government. Didn’t that mean the Haitians had at least some legal protection?
Valentine’s answer was simple: no. “Guantánamo is a military base in a foreign country,” he declared. “It is not United States territory.”
“But United States law is applicable there,” said the judge.
Valentine shook his head.
Johnson looked incredulous. Was Valentine really insisting “that Haitians, or anyone else at Guantánamo Bay, have no constitutional protection at all?”
That’s right, Valentine repeated. They’re outside U.S. territory, so they have no rights.
Johnson sat back in his high leather chair, momentarily quiet. To the students, it seemed as if the judge couldn’t quite believe what was coming out of Valentine’s mouth. When the government lawyer called on the judge to dismiss the case immediately, Johnson said no, he was going to reserve his decision. He wanted written arguments from both parties. He wanted time to think it over.
Now the Yale team had a new task: responding to the government’s motion to dismiss the case. Anxious for a quick ruling, the Justice Department had agreed to file a brief by Friday, just two days away. Judge Johnson had given Yale until Monday to respond, an almost absurd time frame in a case of such complexity. But Koh had quickly agreed to the schedule. With hundreds of Haitians being returned to Port-au-Prince every day, there was no choice.
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A lot of people in Washington were angry. |
Inside the government’s motion-to-dismiss mountain of paper was a document entitled Motion for Sanctions. At Yale, Koh grabbed it, his eyes racing from line to line. According to the Justice Department, none of the legal claims in the new McNary suit had any chance of success. Yale therefore had no good-faith basis for the case. As a penalty for the “frivolous” suit, the Justice Department demanded payment of all its attorneys' fees and court costs—a potentially astronomical amount. No fewer than 15 government lawyers had signed the document, including an assistant attorney general. A lot of people in Washington were angry.
Koh felt sick. He taught about motions for sanctions. They were filed under Rule 11 of the Federal Rules of Civil Procedure, which authorized fines against lawyers and parties for bringing frivolous lawsuits. Since Koh’s signature was on the papers, he was personally liable. His bank account could be on the line, perhaps even his house. Moreover, the law school organization that ran most of the student clinics was part of the lawsuit; it could be on the financial hook—and it was tied to Yale. Depending on Yale’s insurance policy, if everything lined up the wrong way, it could produce a nightmare scenario: the government raiding school coffers because Koh and Ratner had filed an ill-planned lawsuit.
Friday, six p.m. They had three days, minus one hour, to submit their response to Judge Johnson.
A dozen students gathered at Koh’s home that evening. Word about the sanctions motion had spread, and everyone was on edge. Koh passed out copies of the government’s brief, which at 82 pages was nearly half an inch thick. “They think they can just scare us off with this thing,” Koh began. “But they have no idea who they’re dealing with. Every one of you is as smart as those people at Justice, and we’re willing to work a lot harder than they are.” The students were perking up now.
“If we lose this case, we may or may not get Rule Eleven-ed,” Koh went on. “But if we win, then by definition this wasn’t a frivolous lawsuit. So that’s what we’re going to do … we’re going to win.”
People nodded, some adding “all right” or “okay.”
“So I can keep my house,” Koh added, the dimples returning to his face. The room exploded in nervous laughter.
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“Attack everything. Rip what they say to shreds.” |
Koh then pointed to Adam Gutride '94JD, who'd been working on the claim that lawyers had a First Amendment right to speak with their clients. “This is DOJ’s response,” Koh said to him, flipping to page 43 of the brief. “Start here. Read every single case they cite. We need an answer to everything they say and then write it up in five pages that destroy their position. I need it by noon tomorrow.”
Next Koh turned to Daugaard. “Same thing with equal protection,” he said to her. “Attack everything. Rip what they say to shreds.”
The students grabbed their backpacks and headed off into the New Haven darkness. It was Friday night, and the rest of the school was still away on vacation. The law library’s soaring Gothic reading room waited, empty and silent.
Koh sat down at the keyboard. Tense and tired, he began to type. At three a.m., he stopped to refill his coffee mug. By nine, his eyes dry and his shoulders cramped, he had written 40 pages. At eleven, Ratner called to suggest he'd better look at the draft. Koh had a quick bite while Ratner read.
The news wasn’t good. Koh had gotten caught up in explaining everything. Great for teaching, but not for court. “You’ve got to start over, Harold.”
After a moment of shock, Koh realized Ratner was right. He was furious at himself. He'd wasted the entire night, lost even more sleep, and now had only 48 hours before the deadline. Worse still, Koh had gotten some bad news about the Rule 11 problem. Yale had an insurance policy that protected him up to $1 million. But it had a deductible of $250,000, and Koh didn’t know if there was any kind of back-up insurance to cover that.
Great, he thought. After they take our house, we’re covered for the next $750K.
Koh began typing again in the mid-afternoon on Saturday. He wrote until late, slept a few hours, kept writing. On Sunday evening, he roared back to the law school in his car.
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Most of the students were too tired to continue. |
Ray Brescia '92JD, the third-year who'd stepped in as case manager, had already organized teams of students to review each section of the argument. He circled past Koh’s office every hour to collect new pages and hand off revisions. Around midnight, Koh started to lag. Soon he was typing in slow motion. At four, Ray began pushing him to finish. They had to start the final citation check, he warned. Koh grunted … and kept typing. Most of the other students were too tired to continue, and by five, Ray was standing alone next to Koh, staring at the screen with him. Just after dawn, Koh stumbled out of the office, unsure if the brief would even get done.
At home, he fell into bed. This might be the end of the case, he figured. I went ahead, I took a risk, I blew it. He fell asleep in seconds and began to dream of terrible things.
Ray had been left with a mass of paper and computer disks. Two days earlier, he hadn’t even been involved in the case. Now, at crunch time, he was the only one working on it. Ray cranked up a small stereo, took Koh’s chair, and started typing in edits. Ratner and several students straggled in by eight to help, but without the lead author, the brief was turning into a disjointed, Frankenstein-like document.
Suddenly, Koh burst in. He'd had two hours of sleep. “Ray,” he said with a grin, “Michael Jordan wants the ball.”
Just before one-thirty, Koh hit the print key for the final version: 75 pages, 84 footnotes, and references to more than 100 cases and exhibits. Ratner jumped into a taxi with a dozen copies of the mammoth submission and barely caught the train to Manhattan. He would be in New York City by four, just enough time to reach the courthouse in Brooklyn.
Now it was Judge Johnson’s move.
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Koh leapt out of his chair, then raced down the hall shouting. |
The next day, Koh went to see the manager of the New Haven Savings Bank’s Hamden branch. Koh and his wife were hoping to redo their kitchen. He knew the manager vaguely, and reminded the man of his position at Yale, his wife’s income, their home in New Haven. Would the bank extend him a loan?
The manager, all smiles, had just a few routine questions. Did Koh have any contingent liabilities?
“Well,” Koh replied, “I recently filed a lawsuit against the United States government. They’re demanding that I post a ten-million-dollar bond, and I face financial sanctions for bringing an allegedly frivolous case.”
The manager looked at Koh in surprise. After a few moments, he set down his pen. “I’m sorry.”
The call finally came on Friday. “Harold?” It was Ratner, breathless. “Harold, we won. ”
Koh leapt out of his chair, then raced down the hall shouting, “We won! We won! We won!”
The news whipped through the halls and students streamed into an empty office. In New York, Ratner had started running the decision through the fax, but Koh couldn’t wait for it. “Just read the thing!” he demanded. More than a dozen people were now crammed into the room. Ratner raced through the opinion, and Koh relayed the words to everyone around him. There was silence until he reached the first ruling: res judicata did not apply. The new suit could go ahead. The room exploded. Koh had to call out the next ruling: the judge rejected the bond demand and declared the sanctions request “premature.” “This is not a Rule 11 case!” Koh yelled. The cheering erupted again.
Ratner had more. “The government’s barred from returning any screened-in people to Haiti! Johnson’s halting the asylum hearing process! That’s the ball game!” The judge had sided with them on everything. The students roared and pounded on the tables and the file cabinets.
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“We won the right to discovery. They have to let us onto Guantánamo.” |
There was one issue left. Koh waited as Ratner explained, then said. “We won the right to discovery. They have to let us onto Guantánamo.” The cheers started up again, but Koh shut everyone down with a wave. “We’ve only got four days,” he said, his voice suddenly sober. “We’ve got to go to court again on Wednesday.”
It was now Friday afternoon. They had to fly to Guantánamo Bay. They needed lawyers who could go to Miami and Washington, D.C., to take depositions of U.S. immigration officials. They had to assemble the documentary evidence, write another brief, possibly prepare witnesses for examination in court, and give Koh the research support for an extended oral argument before Judge Johnson. And it all had to happen in less than 120 hours.
Koh put the receiver back to his ear.
“Uh, Michael? What do we do now?”
“I don’t know,” Ratner said. “I’ve never won one of these before.”  |
