Storming the Court
By Brandt Goldstein
Out Now
Scribner


These are the basic facts: foreigners are being held indefinitely at the U.S. naval base at Guantánamo Bay, Cuba, under orders from President Bush. The legal status of these detainees is in flux as the administration argues before the judiciary that American laws do not apply to overseas military installations. Appeals have worked their way up to the Supreme Court, which has sided with the administration.

At first glance, that last sentence might seem like a factual error, as well as an editorial oversight—after all, the high court upheld the right of enemy combatants to challenge their detentions in the Hamdi and Rasul rulings. But bear with me. This review is not about the Taliban fighters on Guantánamo now, but about the Haitian refugees who were the naval base’s unwilling tenants in 1991.

In his new book, “Storming the Court,” attorney Brandt Goldstein skillfully weaves together two parallel narratives. The first is the compelling story of an idealistic group of Yale law students and their professor who fought to get the Haitian refugees into America. Goldstein intersperses this story with an account of the harrowing journey of Yvonne Pascal, a young pro-democracy activist who escaped torture in her homeland only to find herself fenced in on Guantánamo. “Storming the Court” is a fascinating legal drama—a sort of modern “Amistad.”

Chaos and violence descended upon Haiti in fall 1991, when a military coup toppled the fledgling elected government of Jean-Bertrand Aristide. Aristide supporters fled the island to escape persecution by the new regime. A pregnant Pascal was beaten—leading to a miscarriage—and burned with cigarettes before she decided to leave her husband, two children, and mother behind in search of safety. Sailing northward on dangerous makeshift rafts, refugees were rounded up by the U.S. Coast Guard.

President George H.W. Bush feared the political ramifications of opening the borders to a flood of Haitians, especially after a number of them tested HIV-positive. After a lower court initially blocked him from sending the refugees back, Bush held them at Guantánamo. In the meantime, the federal appellate court in Atlanta ruled that the Haitians had no protection under American law because, at Guantánamo, they were outside the U.S. At the naval base, Immigration and Naturalization Service officials classified many of the escapees as “economic,” not “political,” refugees, and ordered their return. Human rights activists watched helplessly.

Enter the energetic and ambitious Professor Harold H. Koh ’75, who is now the dean of Yale Law School. Spurred by a varied group of Yale law students—including a rebel and a Rhodes Scholar—Koh filed suit against the U.S. in a Brooklyn federal district court. He argued that the Haitians had a right to counsel and that the government was illegally denying him access to his clients. The Justice Department struck back with the same argument that had convinced the Atlanta appeals court.

“You’re saying, if I hear you correctly, that an agency like INS, assuming they are arbitrary and capricious and even cruel, that the courts would have no jurisdiction because the conduct did not occur on U.S. soil?” the presiding judge, Sterling Johnson Jr., asked the government lawyer.

“That’s correct, Your Honor,” counsel replied.

Over the next few months, Johnson would repeatedly side with the Yale team. Johnson rejected the idea that the Constitution does not extend to Guantánamo, observing that the Haitians were on territory under the “complete jurisdiction and control” of the U.S. government. His arguments eerily presage those that would be made almost 15 years later to contest the holding of enemy combatants without charges.

The legal battles for Koh and his students, however, were far from over. Bush changed tactics, and the Coast Guard started sending Haitians home without stopping at Guantánamo. In a defeat for the Yale team, the Supreme Court eventually upheld the Bush policy. Koh also had to juggle a separate case before Johnson that urged the release of the remaining HIV-positive refugees, including Pascal, from the squalid conditions on the naval base.

These often confusing legal maneuverings are unavoidably integral to the plot. But Goldstein, himself a graduate of Yale Law, explains each of the procedures in layman’s terms, and he avoids getting bogged down in the technicalities of the process. Instead, he infuses the narrative with dialogue and glimpses into the minds of the lawyers and students. These insights are built upon interviews with nearly all of the key participants—Goldstein notes that he formally sat down with Koh 27 times and Pascal 34 times. The character-centered thrust of the book and the easy language makes the complex story accessible to everyone.

It also makes it easy to develop emotional attachments with the students—who are alternately discouraged, distraught, and joyous, but always passionate—and with Pascal, who leads a hunger strike on Guantánamo and represents the other refugees in demanding respect and freedom.

While the coming of the Clinton administration did not bring any change to the policy toward Haitians, Judge Johnson ruled in 1993 that the remaining 267 HIV-positive detainees had to be released: “The Government has failed to demonstrate to this Court’s satisfaction that the detainee’s illness warrants the kind of indefinite detention usually reserved for spies and murderers.” Pascal was finally flown off of Guantánamo and settled in New York, where her children and her mother later joined her.

However, Johnson’s forceful decision did not fare as well. Realizing that the higher courts would overturn the ruling anyway, Koh agreed to have the opinion vacated as precedent. That didn’t affect the status of the refugees, who had already been admitted to the U.S.—but it did mean the ruling wouldn’t be binding for similar cases in the future. In exchange, the Justice Department offered to offset part of the university’s legal fees. As a former presidential adviser told Goldstein, the administration wanted “maximum flexibility” on Guantánamo, “confident that they would do the right thing but not wanting to be forced by law to have to do so.”

Flash forward a decade. Another Bush administration and another group on the naval base for the foreseeable future. Appeals have again reached the Supreme Court. This time, though, the high court has been siding with the detainees.

The decision in the Haitian refugee case may have been vacated, but this book will make sure it is not forgotten.

—Staff writer David Zhou can be reached at dzhou@fas.harvard.edu.