A short history of Guantánamo
by Mark Dow
[ politics - february 05 ]All this must remain beyond the oversight of any court, the executive logic being that unprovoked violence against asylum seekers is a form of securing our borders.
In a federal district courtroom in downtown Miami, a number of military men in uniform filed in to fill the front rows so that Judge Clyde Atkins would have a clear view of them. One of the attorneys later told me that it was the kind of military tactic of intimidating a judge that one expects in many Latin American countries. The message was "national security," military necessity, and that the local judge should know his place. At stake was the US executive's authority to hold prisoners in its offshore zone of lawlessness. It was 1991.
The case, Haitian Refugee Center, Inc. v. Baker, involved the forced repatriation of Haitians fleeing military violence and being picked up at sea by the US Coast Guard. A restraining order had already been issued "barring the government from continuing to repatriate Haitians on board Coast Guard cutters or at the US Naval base at Guantánamo Bay, Cuba."  At this hearing, Judge Atkins heard arguments about the temporary restraining order (TRO), about the court's jurisdiction, and about the enforceability of Article 33 of the United Nations Protocol on the Status of Refugees discouraging the forced return of potential refugees. As I recall, the government's lawyer told the judge, in answer to a direct question, that yes, the interdicted Haitians now in US custody had certain rights, but no, those rights were not enforceable. It seemed, back then, an extraordinary thing for a government lawyer to say. The lawyer was named Kenneth Starr. I'm told that Washington's decision to send the Solicitor General to argue a case in a district court is a way of sending a message, and Starr essentially confirmed this when Judge Atkins extended the TRO. Starr said he wasn't at liberty to agree with the extension and added, "at the highest level of the government there is profound concern about this litigation."
Why make the government's attempt to win a case sound so sinister? First, because the US's claimed authority for "rescuing" Haitians at sea and returning them to François ('Papa Doc') Duvalier was based on an executive agreement between the Reagan Administration and Duvalier. Second, the US had supported the Duvalier dictatorship. Third, the US supported and funded the paramilitary group FRAPH responsible for the murder and repression that forced Haitians to flee their country after the 1991 coup against President Jean Bertrand Aristide  - these were the Haitians whose forced repatriation led to the scene in the Miami courtroom. Fourth, the detention of Haitian asylum-seekers as a means of deterring other potential refugees form fleeing persecution violates international standards of refugee protection, according to the late Arthur Helton, a refugee policy expert, and others. (Helton was killed in the August 2003 bombing of the UN headquarters in Baghdad.) Sixth, the US government's longstanding claim in the absence of individualized determinations that "the majority of Haitian boat people, and the majority of asylum applicants [are] intending economic migrants"  is considered a violation of international law. As early as 1980, the US government was asserting that repatriated Haitians were not persecuted on their return, though a Carter White House official later admitted that "no one inside or outside the government really believed it." 
After forced repatriations from Guantánamo, US officials made false claims abut US monitoring of returned asylum-seekers.  Haitian Refugee Center, Inc. v. Baker and subsequent litigation concerned the fairness of asylum screening procedures at Guantánamo and on board US Coast Guard cutters. The United Nations High Commissioner for Refugees (UNHCR) refused to participate in the "cursory screenings," saying that the procedures "deviate[d] significantly from international and US law."  But there was little or no recourse from what attorney John Gibbons, in the oral arguments on Rasul v. Bush (the post 9/11 Guantánamo case) would call a "lawless enclave." And just in case there was, the US changed its policy in 1992 "from using Guantánamo as a site for conducting refugee screenings [..] to the policy of automatic interdiction and return of all Haitians interdicted on the high seas."  UNHCR called the Supreme Court ruling in Sale v. Haitian Centers Council upholding the legality of interdiction and repatriation "a setback to modern international refugee law."  Most of the Haitians would indeed be repatriated, many of them handed over directly to the Haitian military on disembarking at Port-au-Prince, some forced by high-powered water hoses from the US cutters. (Chinese have also been interdicted at sea by the US, held at Guantánamo, and "quietly and summarily returned."  So have would-be immigrants from several other countries. Cubans have also been detained in large numbers at Guantánamo - most have been allowed into the US but they, too, have been subjected to excessive US military force on the base.)
The mistreatment of Haitians in the "lawless enclave" demands its own a full-scale history. Here I will just mention that they were unnecessarily confined behind razor wire; their peaceful protests were met by assaults from military police riot squads; they were subjected to the "psy-ops" technique of blaring music - a technique also used against "enemy combatants" at Guantánamo (as well as against Manuel Noriega in the Vatican embassy and David Koresh and his followers in Waco). Unaccompanied Haitian refugee children reported being "cracked" at Guantánamo - "their hands cuffed behind their back, their feet cuffed and then stepped on... The cuffings often occur[ed] in conjunction with other punishments, such as [..] being forced to kneel for hours on hot cement or beds of ants."  More than 200 Haitians, despite having passed the stringent "screening procedures" which should have allowed them into the US to pursue asylum claims, were further detained because they tested positive for HIV. District Court Judge Sterling Johnson, who would rule in 1993 to allow the HIV positive Haitians in, wrote that the 200 or so sick refugees were "subjected to pre-dawn military sweeps as they sleep by as many as 400 soldiers dressed in full riot gear."  At least one HIV positive refugee said she and other women were forcibly injected at Guantánamo with the contraceptive Depo-Provera.  All this must remain beyond the oversight of any court, the executive argues, because of "national security" and because the judiciary has traditionally shown great deference in matters of immigration policy - the executive logic being that unprovoked violence against asylum seekers is a form of securing our borders.
Not far from where Solicitor General Starr had argued 11 years earlier that just because your rights are violated doesn't mean you should be able to do something about it, a boat carrying 216 people from Haiti and the Dominican Republic sailed into Biscayne Bay in late 2002. Most of the passengers were taken into custody. An immigration judge soon found that one of these Haitians, an 18-year-old, could be released on bond. The Board of Immigration Appeals (BIA) upheld that decision. Attorney General John Ashcroft intervened, however, so that neither "D-J-" nor the other Haitians could be released. Citing "national security interests" together with "sound immigration policy,"  Ashcroft ordered the young Haitian man and others "similarly situated" to remain in detention pending their asylum proceedings, whatever an immigration judge and the BIA might rule - both are subordinate to the AG Ashcroft cited a statement from a Defense Department official invoking the "war on terrorism," and claiming that the release of the Haitian asylum applicant could "trigger a large-scale migration event" from Haiti, which "would also create an opportunity for terrorist infiltration into the United States of Department of Defense installations in the region." 
Ashcroft used the magic words "national security interest" and, even more immune to argument, "the terrorist attacks of September 11", then informed us that the State Department "has noticed an increase in third-country nations (Pakistani, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States."  That "etc." seems like a tip-off, but we even have an anonymous State Department official - like a 25-year-delayed echo of that Carter State Department official - saying "we are all scratching our heads" about the source of the Attorney General's assertion.  In any case, there was no claim, as far as I know, that the 18-year-old Haitian was himself in reality Pakistani, Palestinian or "etc." In November 2004, he was deported.
While there are continuities in current US anti-Haitian policies going back 25 years, there is also a new shamelessness on the face of these policies in terms of both the participation of the US in forcing Aristide from office and supporting anti-democratic forces, and in the related anti-Haitian immigration policies. In early 2004, groups that were apparently "armed by, trained by, and employed by the intelligence services of the United States"  pulled off a second coup against Aristide. One of Aristide's former bodyguards told of US troops running things in the unmarked plane that removed Aristide from Haiti: "They sat us down and didn't tell us where we were going..."  Cheney said Aristide had "worn out his welcome," and that "we helped facilitate his departure when he indicated he was ready to go."  According to attorney Ira Kurzban - who had argued the 1991 case in that Miami courtroom - the US had made "contingency plans for Guantánamo" weeks before the operation.  On the same day that Kurzban described the links between the US and Haitian paramilitary forces, George W Bush told the Haitian people, "we will turn back any refugee that attempts to reach our shore."  The US Committee for Refugees noted that Bush "has finally spoken the truth about American practice toward Haitian refugees," that he had "flagrantly rejected the legal and ethical obligations" of refugee protection which "no [other] state claims the right to violate."  Three of 2,000 interdicted Haitians were found to have a credible fear of persecution in the summer of 2004. Despite widespread political violence, hurricane damage, and a humanitarian crisis caused by flooding, the Department of Homeland Security continued and continues to deport Haitians, while Nicaraguans and Hondurans in the US have been granted extensions of Temporary Protected Status (TPS) here after recent hurricane damage in their home countries. 
Anti-Haitian policies and the "war on terror," different as they are, have at least three things in common: if you categorize a person in a certain way, her rights and protections are gone; if you categorize the place where you hold that person in a certain way, her rights and protections are gone; and using the pretext of war or national security, you can do anything at all to a person - certainly to a non-citizen. Since In re D-J-,Wake Forest law professor Margaret H Taylor observes, it seems that the Department of Homeland Security (DHS) has been expanding its use of the "remarkably broad" rationale for detention-without-bond to other groups - for example, to "all noncitizens who have been convicted of a sex offense, regardless of the seriousness of the underlying offense, the detainee's risk of flight, or danger to the community." In Arizona, Taylor reports, Brazilians are being detained without bond because DHS has decreed them "a heightened risk of flight because of smuggling activity" - and "echoing the rationale" of the latest anti-Haitian policy, DHS has justified the Brazilian detentions by claiming that the use of resources for apprehending the Brazilians on the Southwest border "poses a threat to national security." 
Finally, there are the "Mariel Cubans," long stigmatized and victimized here, now with the additional weapon of terrorism propaganda. These Cubans came to the US from the port of Mariel in 1980 with the welcome of President Jimmy Carter. Once again the premise is that if we categorize certain people in a certain way, then they cease to be persons at all - at least as far as due process and humanity are concerned. In a sort of mainland Guantánamo, the government says it can do anything at all to certain people who are here because - in a bizarre legalistic sense - they are not people and they are not here. The Mariel Cubans were "paroled" into the US by the executive and are thus legally considered not to have "entered." Exploiting this so-called "entry fiction" - never intended to apply to circumstances like these - the government argues that the 1,000 or so Mariels in detention (and any others who may end up there) have no right to be free from detention here, ever. (An uncertain number of other "inadmissible aliens" are in the same position.) In 2004, 33 Cubans were reported to have been detained - after completing their criminal sentences - for 15 years or more. 
In October 2004, the US Supreme Court heard arguments about this indefinite detention (Clark v. Martinez and Benitez v. Rozos). The case has received little coverage, in part because the victims are neither alleged terrorists nor "enemy combatants." Still, in front of the court, Deputy Solicitor General Edwin Kneedler wielded the linguistic equivalent of uniformed military men filling the front rows to intimidate the judges. The government functionary conjured "hordes of aliens" and invoked "the fundamental power of the United States to protect its borders" though this case is about neither. And of course Kneedler also exploited the "events of recent years," as he so delicately put it, joining the September 11 attacks in one sentence with the "migration crises involving Haitians and Cubans" twenty-five years ago. In fact all of these crises do have something in common: the executive's shameless abuse of power against those whose humanity would be denied for the sake of - what? Simply for the sake of that very power.
On January 12, 2005, the Supreme Court ruled 7-2 that its decision in Zadvydas (2001) limiting the indefinite detention of aliens who cannot be deported also applies to Mariel Cubans and other "inadmissable aliens." Justice Scalia wrote the majority opinion.
1 'Court Extends Ban on Repatriation of Haitians', Interpreter Releases (December 9, 1991). [Back]
2 See my Occupying and Obscuring Haiti, New Politics 5:2, Winter 1995. [Back]
3 Cable from US Embassy, Port-au-Prince, April 12, 1994, reproduced in James Ridgeway, ed., The Haiti Files: Decoding the Crisis (Washington, DC: Essential Books/Azul Editions, 1994), 188. [Back]
4 4 Quoted in David W Engstrom, Presidential Decision Making Adrift: The Carter Administration and the Mariel Boatlift (Lanham, MD: Rowman and Littlefield, 1997), 145, 174 n. 47. [Back]
5 See my A Refugee Policy to Support Haiti's Killers, New Politics 5:1, Summer 1994. [Back]
6 Bill Frelick, 'Safe Haven: Safe for Whom?' in World Refugee Survey (Washington, DC: US Committee for Refugees), 2. [Back]
7 Frelick, 8. [Back]
8 Ibid., 8. [Back]
9 Ibid., 14. [Back]
10 'Haitian Children Imprisoned at Guantanamo: Cruel and Unusual Punishment', Haïti Progrès, 13:5, April 296-May 2, 1995, 9. [Back]
11 Paul Farmer, The Uses of Haiti (Monroe, ME: Common Courage Press, 1994), 277. [Back]
12 Farmer, Uses of Haiti, 280. [Back]
13 In re D-J-, Respondent, 23 I&N Dec. 572 (AG 2003), Interim Decision #3488. [Back]
14 Ibid. [Back]
15 Ibid. [Back]
16 'Ashcroft leaking Logic', Palm Beach Post April 29, 2003. [Back]
17 Ira Kurzban interview in Noam Chomsky, Paul Farmer, and Amy Goodman, Getting Haiti Right This Time: The US and the Coup (Monroe, ME: Common Courage Press, 2004), 47. [Back]
18 Franz Gabriel interview in Getting Haiti Right This Time, 151 ff. [Back]
19 Cheney quoted at http://japan.usembassy.gov. [Back]
20 Kurzban in Getting Haiti Right This Time, 47. [Back]
21 US Committee for Refugees, 'President Bush Finally Speaks the truth about America's Unlawful treatment of Haitian Refugees', Press Release, February 26, 2004. [Back]
22 Ibid. [Back]
23 'US Policy Grants TPS to Many - Except Haitians', Miami Herald, October 20, 2004. [Back]
24 Margaret H Taylor, 'Dangerous by Decree: Detention without Bond in Immigration Proceedings', 50 Loyola Law Review 2004, 168-69. [Back]
25 Gaiutra Bahadur, 'Court to Consider Detention of Mariel Boat Lift Refugees', Philadelphia Inquirer, October 12, 2004. [Back]