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Episode: A Land Without Law

Author: Vox Media Podcast Network
Duration: 01:03:08

Episode Shownotes

Before Guantánamo Bay became the prison we know today, Marie Genard spent more than a year of her life there. She was 14. Brandt Goldstein’s book is Storming the Court: How a Band of Law Students Fought the President—and Won. Say hello on Twitter, Facebook, Instagram and TikTok. Sign up

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Summary

In "A Land Without Law," hosted by Phoebe Judge, Marie Genard shares her traumatic experiences fleeing a dictatorship in Haiti. At 14, she and her father were intercepted by the U.S. Coast Guard and taken to Guantanamo Bay. The episode addresses the injustices faced by Haitian refugees, the challenges in proving asylum claims, and a legal battle led by law students advocating for detainees' rights. Genard's narrative highlights the absence of legal protections and the psychological impact of her prolonged detention, illustrating broader themes of justice and human rights.

Go to PodExtra AI's episode page (A Land Without Law) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.

Full Transcript

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00:01:35 Speaker_10
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00:01:45 Speaker_12
This episode contains descriptions of violence. Please use discretion. Tell me about your father.

00:01:57 Speaker_06
Well, his name was Antoine François. But the funny thing is, because in Haiti, people always have nicknames, so for the longest, we thought our dad's name was Louis-Naïs. But he goes by the name of Francique. He was strict. He was very, very strict.

00:02:20 Speaker_06
My only job, my dad would tell me, your only duty is to go to school.

00:02:26 Speaker_12
Marie Genard's father grew up in the Dominican Republic. He moved to Haiti as a teenager. Then he met Marie's mother.

00:02:33 Speaker_06
I didn't know my mom very well. She left me when I was three months old. My grandmother and my dad would tell me. My stepmom didn't have kids until I was about 10 years old, give or take.

00:02:50 Speaker_06
I was the only kids around for a long time, and my grandma pretty much raised me with my dad.

00:02:58 Speaker_12
When she was growing up, the president of Haiti was Jean-Claude Duvalier. He'd been president Marie's whole life. He became president at age 19 when his father, Francois Duvalier, who people called Papa Doc, died. People called him Baby Doc.

00:03:17 Speaker_06
A dictatorship, it's what he was. You were told what to do, when to do it. I remember being told time to go to bed, like people could not be out on the streets and stuff like that.

00:03:32 Speaker_12
François Duvalier, or Papadoc, was known for ordering Haiti's secret police to commit over 30,000 murders.

00:03:40 Speaker_06
Minicien, it's what they called them, and they wear like navy blue uniforms.

00:03:48 Speaker_12
They were officially called the Tonton Macoute, after a mythical character said to kidnap children and eat them for breakfast. When Marie was seven, people started protesting after the public beating of a pregnant woman by police.

00:04:03 Speaker_12
The government sent soldiers and machine guns to patrol the streets. But protests kept happening. Entire cities came together and refused to go to work.

00:04:14 Speaker_12
People signed a petition saying Jean-Claude Duvalier, or Baby Doc, was keeping Haitians in, quote, slavery. The police started killing and arresting protesters. By the time Marie was eight, students were boycotting class.

00:04:30 Speaker_12
And then the government closed schools. This was in 1986. Protesters passed out flyers for, quote, Operation Uproot.

00:04:40 Speaker_06
I remember it, you know, quite vividly. I was only nine years old, about to be nine years old.

00:04:49 Speaker_12
To try to fix his public image, Baby Doc drove around the Capitol throwing cash from his car windows. It didn't work. Protesters blocked roads, destroyed government offices, and burned a courthouse.

00:05:02 Speaker_12
Baby Doc declared a state of siege and announced he was suspending some civil liberties, like freedom of speech, the right to assemble peacefully, and to see a judge if he were arrested. And then he fled the country.

00:05:17 Speaker_12
Marie remembers seeing people retaliating against anyone who was part of Baby Doc's regime.

00:05:22 Speaker_06
People were out in the street beheading those people. When my house was, my grandmother's house, it's like in a corner of a four-way street. You know, you used to have multiple bodies just being burned there. They were dumb.

00:05:42 Speaker_06
get them from their house, drag them out to the streets. The best way to do it because they feel like beheading was too much of a mercy killing because there was no pain being inflicted.

00:05:53 Speaker_06
So the best way to do it was to put tires around them and set them on fire with gasoline burning them alive.

00:06:05 Speaker_12
After a few more years of protests and strikes and multiple election attempts, there was an election planned for December 1990.

00:06:15 Speaker_06
I remember my grandmother singing, like, this is the first time in her life being able to vote. So it was like, you know, that's the time you thought things going to change. And that's when really my dad started to get into local politic.

00:06:30 Speaker_12
He joined a group in their neighborhood supporting a new political movement called Lavalas, the Haitian Creole word for flood and avalanche. Then the Lavalos-backed candidate won Haiti's first free democratic election.

00:06:45 Speaker_12
His name was Jean Bertrand Aristide, and he was a Catholic priest.

00:06:50 Speaker_06
You know, we thought that's, you know, it's going to be a big change. You know, it's a priest. What could go wrong having a priest for a president?

00:06:58 Speaker_12
President Aristide was inaugurated in February 1991. Marie remembers her father got bigger roles in the Lavalas movement, so they moved to the city. But less than eight months later, there was a coup, and military leaders took over again.

00:07:15 Speaker_12
They arrested anyone who supported President Aristide, and soldiers deliberately shot civilians in public. There were reports that people could be arrested, tortured, or killed for as little as looking at a photo of the former president.

00:07:30 Speaker_06
All I know, when the coup happened, my dad went in hiding. They were hunting anybody who was in the Lavalas party. So I was sent to my grandmother, who lived in a little town called Zima, which is a little bit far out in the country, really.

00:07:50 Speaker_06
Nobody would have any business going over there and my dad wasn't hiding. So I stayed there for a while until one day my dad sent for me.

00:08:04 Speaker_12
She and her stepmother and four half-siblings left home in the middle of the night. Marie was 14. They walked for two hours to the ocean. Eventually, they reached the shore and got on a boat. It was still dark.

00:08:19 Speaker_06
And we got so sick. I was sick. My stepmom was sick. My brothers, we all was like sick, seasick. Till this day, I can't get in the ocean. They were on an oversized fishing boat. You know, it's a handmade boat. It wasn't, you know, and you use pedal.

00:08:41 Speaker_06
You know, you pedal the boat. There was no motor or anything like that.

00:08:46 Speaker_12
And how many people were on the boat with you?

00:08:49 Speaker_06
Maybe 150 people. We were packing it like sardine. People was just on top of people. But the sea was rough. So we ended up only getting to La Tortue.

00:09:02 Speaker_06
And when we got there and we couldn't go any farther for whatever reason, we ended up having to head back. And when we head back, my stepmom say, I ain't doing this again. You know? So we stayed in hiding for about a week, and we got back again.

00:09:25 Speaker_06
This time, just Marie and her father got on the boat. Because I was, you know, I would be an orphan if my dad never come back, and I would be an orphan, so my dad say, if we all, if we're gonna perish, we're gonna perish together.

00:09:43 Speaker_06
I would not, I would not wish this, you know, upon my worst enemy because person who's navigating the boat doesn't know where they're going, for one thing. It's like, we're going to just navigate it. If we land somewhere, we land somewhere.

00:09:58 Speaker_12
Marie says she thought they could all die on the boat. and thought that maybe her father believed that would be better than being killed at home.

00:10:07 Speaker_06
If they would catch my dad, it would be all over again what I used to see when I was younger with people being beheaded and worse, you know, being burned alive. And the only thing I could think of is If you're going to die, die in your own term.

00:10:23 Speaker_06
And we used to own a couple of fishing boats. So he loved the ocean. So, you know, I didn't want to die, but I'm guessing, like, if that's how he's going to go, I think that's the way he would want to go.

00:10:37 Speaker_12
Then they were approached by another boat. It was the U.S. Coast Guard. Tell me about what happened when the boat was intercepted.

00:10:47 Speaker_06
So when the boat wasn't accepted, you know, got into this huge vessel. I thought it was a house on the ocean. You know, it's just like you couldn't even feel the movement when you were in the vessel. So we were processed.

00:11:02 Speaker_06
They issue us an ID with the number. Everybody was interviewed. Family stays together. I think we spent maybe three days on the boat in the Coast Guard. Through Grand Valley, you hear you were not going to the U.S.

00:11:20 Speaker_12
Finally, Marie found out where they were going.

00:11:23 Speaker_06
They say we were going to Cuba, Guantanamo Bay, Cuba.

00:11:28 Speaker_12
I'm Phoebe Judge. This is Criminal. In 1991, thousands of people on boats from Haiti were intercepted by the U.S. Coast Guard.

00:11:45 Speaker_02
Under U.S. refugee law, you're not supposed to turn people away if they have a well-founded fear of political persecution. But what happened was they were interviewed on the boat, and many of them were simply returned.

00:12:01 Speaker_02
They never got any closer to the United States. This is Harold Hung-Chu Koh from Yale Law School Studio. I just finished today my 39th year of teaching.

00:12:14 Speaker_12
That's a really long time.

00:12:15 Speaker_02
I was a young man when I began.

00:12:20 Speaker_12
As a young professor, Harold Koh co-founded a human rights legal clinic at Yale where students would work on cases. By November 1991, there were more than 1,000 Haitian refugees held on Coast Guard boats.

00:12:35 Speaker_12
An official told the New York Times, this thing is coming to a boil. Then, two students walked into Harold Koh's office to ask him a question.

00:12:46 Speaker_02
And they asked me whether we would bring a lawsuit against the U.S. government.

00:12:51 Speaker_12
They'd heard that the Coast Guard boats had gotten so full of refugees that they'd started taking people straight back to Haiti without thoroughly screening them for asylum.

00:13:00 Speaker_02
And we thought that was illegal. The question was whether we should file our own lawsuit. In fact, it was kind of crazy to do it. Sue the U.S. government with a bunch of kids, yeah, crazy. Insane. Insane. But they weren't members of the bar.

00:13:15 Speaker_02
If I didn't file and I didn't sign the pleadings, there was no lawsuit.

00:13:20 Speaker_12
So he said, OK.

00:13:22 Speaker_02
I thought we should at least start drafting papers and see what they looked like.

00:13:27 Speaker_12
A few days later, a student slipped a memo under his door, outlining potential legal arguments. Then two memos. Then six. Then Xeroxed case files and annotated law review articles.

00:13:41 Speaker_12
His voicemail box filled up, and more than once he came to work to find his door covered in Post-it notes.

00:13:47 Speaker_02
You know, I had just gotten tenure at Yale Law School, and I thought, you know, I had actually been pretty cautious about the way I lived my life to that point professionally. And I thought, if I'm not ready to take the chance, who will?

00:14:04 Speaker_02
And I had told the students that they should live up to their principles because my father had been betrayed by people who didn't live up to their principles.

00:14:13 Speaker_12
Harold's father, Kwong Lim Ko, had been a law professor, too.

00:14:17 Speaker_02
He was the first Korean from his island, Jeju Island, ever to study law. Seoul, which is an amazing accomplishment, and then the first student from Seoul ever to study law in America.

00:14:30 Speaker_12
He was accepted to Harvard Law School and became the U.S. ambassador for a new democratic government of South Korea, established after mass student protests.

00:14:40 Speaker_02
But about six months after that, this was in 1960, 61, the government was overthrown by a military coup.

00:14:51 Speaker_12
His father put together a meeting at the Korean Embassy in Washington, D.C., asking people to take an oath that they wouldn't work for the new Supreme Council of Military Leaders.

00:15:03 Speaker_02
Sixty people signed the pledge. Within a year or two later, the only one who kept the pledge was my father.

00:15:11 Speaker_12
The leader of the coup would stay in power for almost 20 years. A U.S. national security official helped Harold's father get a job.

00:15:20 Speaker_02
He said, by the way, what are you doing now that this coup has occurred? And my father said, well, I'm a political exile. I have six children and I'm unemployed.

00:15:32 Speaker_02
And one week later, my family, six children, parents, each carrying one suitcase, we came to New Haven.

00:15:39 Speaker_12
Harold's parents both started teaching at Yale Law School, and less than 25 years later, Harold did the same thing. When you were first approached by the students asking you to get involved, did you think about your father?

00:15:55 Speaker_02
That's all I thought about. That's not true. I thought about my father. I also thought about my wife and children. You know, it's very risky suing the U.S. government. I had served in the U.S. government. They have huge resources.

00:16:08 Speaker_02
They have an advantage in the courts. And the pace of litigation is brutal. We had to win. There's no point in bringing the case just to lose.

00:16:20 Speaker_02
We recruited about 150 students, and they all worked on it around the clock for free while they were doing their schoolwork.

00:16:29 Speaker_12
And then, over spring break, Harold and the students took a train to federal court in Brooklyn and filed the case.

00:16:37 Speaker_12
A different lawsuit in Florida had temporarily stopped the government from taking people back to Haiti, but the Coast Guard needed somewhere to send thousands of people. What did you know about Guantanamo at the time?

00:16:52 Speaker_02
I knew two things. There was a song called Guantanamera about the girl from Guantanamo.

00:16:59 Speaker_02
And I knew the movie A Few Good Men, where Tom Cruise plays a Navy JAG officer defending some people who were charged with executing a code red on the Guantanamo Naval Base. That's all I knew.

00:17:17 Speaker_12
When you got to Guantanamo, what was the first thing that happened when you got off the boat?

00:17:23 Speaker_06
Well, you know, we were lining up. They give everybody a little package, which have your blanket, soap, toothbrush. You got rid of what you had on. They give you a uniform. You got tested. You have to have tested again. Tested for what?

00:17:44 Speaker_06
People were getting tested to see if you're sick for whatever disease that you may have.

00:17:50 Speaker_12
Marie, who was 14 at the time, remembers they were assigned numbers.

00:17:55 Speaker_06
My number was T1286. My father was T0126. I was only called by my name, by my dad or, you know, the other Haitians. But to everybody else, I was T1286.

00:18:15 Speaker_12
They gave Marie a photo ID. She still has it. What do you look like in that picture?

00:18:23 Speaker_06
Scrawny little kids. No smile. I have a baseball cap in my head. My hair is disheveled. I mean, it's just, I wish I was that size again though. But a scary looking kids. I looked like I was afraid for my life.

00:18:50 Speaker_12
Marie's father told her she might be interviewed about why they left. If they ask a question, just tell the truth, really.

00:19:00 Speaker_12
The Immigration and Naturalization Service was conducting screening interviews meant to determine whether people qualified for a full asylum hearing in American court. They had sent officials to the Coast Guard boats to ask the screening questions.

00:19:14 Speaker_02
When the interviews were going on on boats, they would sometimes last for, we were told, 30 seconds to two minutes. Once they got on shore, the screening interviews stretched out to sometimes 10 or 15 or 20 minutes.

00:19:29 Speaker_02
but they were being conducted without lawyers for people who couldn't speak English. So, depending on the kind of question you were asked, you could give an answer that would make sure you got returned to Haiti.

00:19:41 Speaker_02
So, if the question was, are you fleeing from political persecution because you're a member of Lavalasse and a supporter of President Aristide, that should be sufficient for you to get an asylum interview.

00:19:53 Speaker_02
But often they were being asked, do you want a better life in America? The answer to that question was also yes, but that could mean that you're an economic migrant, in which case you would simply be returned.

00:20:06 Speaker_06
You could have multiple interviews with multiple different people just to try, I guess, to try to catch one alive. Like, if people weren't telling the truth, the story wasn't always consistent.

00:20:19 Speaker_12
The government kept count of the screenings. From 1981 to 1991, they interviewed 23,000 people, and only 28 were allowed into America.

00:20:31 Speaker_12
But Marie felt sure that she and her father would get a hearing because of her father's work with the La Valasse party.

00:20:39 Speaker_06
I know there was no way, you know, they would send us back, meaning like my dad and myself, you know, based on our story. You know, being a naive kid, thought maybe I'll be there for a few weeks.

00:20:54 Speaker_06
Marie says that at Guantanamo, they were fed packaged military meals. My favorite was the omelets with the hot sauce, Tabasco sauce in it.

00:21:05 Speaker_12
They slept on cots in assigned tents.

00:21:07 Speaker_06
It was a massive camp, tent after tent, green tent. We have like camp one through camp seven. Camp seven, we all know that's where all, if you get into fight, you would get arrested, they would send you to that camp.

00:21:22 Speaker_06
Camp seven was the jail camp, is what I call it. I was in camp three. Camp three was mostly families, people who have, adults who have children, so it was family camp.

00:21:37 Speaker_12
Marie and her father were waiting for news. Then they heard they were going to have to leave Camp 3 because Marie's father had tested positive for HIV. They were sent to a separate camp called Camp Bokele.

00:21:52 Speaker_02
We learned that they had segregated a group of about 250 Haitians who all had clear asylum claims. They were fleeing from political persecution, but they had also contracted the HIV virus. I thought the U.S. government was out of its mind.

00:22:17 Speaker_12
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00:23:59 Speaker_05
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00:24:23 Speaker_12
When Professor Harold Koh heard that the U.S. government had sent a group of HIV-positive detainees to a separate camp on Guantanamo, he couldn't believe it.

00:24:33 Speaker_02
What kind of public health directive are they considering, you know, to segregate them in a place that was, you know, dirty water, lots of insects under tremendous heat was essentially putting them in life-threatening conditions.

00:24:54 Speaker_02
Nothing could be more medically dangerous than to put 220 to 250 immunosuppressed people in unsanitary conditions in a prison camp. If one person got sick of an infectious disease, everybody would get it.

00:25:16 Speaker_02
And so that group of people who we called HIV positives became our most dramatic concern.

00:25:24 Speaker_12
Harold Koh and the Yale Law students asked U.S. Immigration for access to the detained Haitians at Guantanamo, but didn't hear back.

00:25:33 Speaker_02
Well, the first argument was that they needed lawyers. I don't know if you've seen the great case Gideon against Wainwright, which is ... you have a right to a lawyer before you're sentenced to a felony.

00:25:45 Speaker_02
These people were potentially being sent back to their death and they didn't have lawyers. So it started as a case about Gideon against Wainwright. But then it became a case about the detention of people on Guantanamo.

00:25:59 Speaker_02
So it became like Korematsu, the Japanese internment case. Can you hold people of color in a detention camp without charging them with any sort of crime?

00:26:12 Speaker_12
When the group from Yale went to file in federal court in Brooklyn, the case had to be assigned a judge. They were hoping for someone specific.

00:26:20 Speaker_02
— You have to go to the clerk's office and put your name on the wheel, which means you get whatever judge is randomly selected. So I was standing there with the opposing counsel from the U.S. attorney's office, and they spun the wheel.

00:26:35 Speaker_12
— What do you mean, spun the wheel? Wheel of fortune? What is that?

00:26:39 Speaker_02
Yeah, that's how you get your judge. They literally spin a wheel.

00:26:43 Speaker_12
Wait, is this a common practice, this wheel?

00:26:47 Speaker_02
Every court in the country, every federal court in the country, yeah. Go on the wheel is the term. So they pulled the judge's name out from the available duty judges and it said Sterling Johnson Jr.

00:27:00 Speaker_12
This was not the judge they were hoping for. Harold had never heard of Sterling Johnson Jr. He'd been appointed to the court about 10 months earlier.

00:27:10 Speaker_02
And then we went over to the courtroom to wait to go in to see him. And my co-counsel, Michael Radner, dear friend, looked in and he goes, Harold, he's black. Now, it turned out that he was a Republican.

00:27:24 Speaker_02
He had been a police officer, but also in his time he had been a military guard on Guantanamo.

00:27:33 Speaker_12
Judge Johnson had been stationed on Guantanamo in the 1950s as a young Marine. Harold and the students walked into his courtroom with an emergency request.

00:27:44 Speaker_12
They were asking Judge Johnson for a temporary restraining order, a pause on all detainee interviews until lawyers were permitted access.

00:27:54 Speaker_02
I could tell he was wary, but interested. And he wasn't buying the government's position, but he wasn't necessarily buying ours either. And no civilian lawyer had been to Guantanamo to that point ever.

00:28:11 Speaker_02
The government was allowing almost everybody else to go to the island. Filmmakers, piano tuners had been down there, but not lawyers.

00:28:23 Speaker_04
The government lawyers took the position that the students and co. had no idea what they were talking about. This case should be dismissed immediately. The U.S. Constitution does not apply to Guantanamo. No other federal law applies to Guantanamo.

00:28:42 Speaker_04
We can do whatever we want to these refugees. We can be arbitrary. We can be capricious. We can even be cruel. That's a quote in the court record.

00:28:50 Speaker_02
And at one point in the first hearing, they said, we're going to bring out a general so-and-so to testify, and we're going to bring down the Solicitor General of the United States, Ken Starr.

00:29:02 Speaker_02
And Judge Johnson said, I'm from Bed-Stuy, which essentially meant, you can't intimidate me. And then we thought, well, gee, we have a chance.

00:29:17 Speaker_02
He gave us a temporary restraining order, which lasts for 10 days, which meant that we could start to assemble a team to actually go to Guantanamo to meet our clients.

00:29:29 Speaker_02
And then we had to prepare for a preliminary injunction hearing where we could turn the temporary restraining order into something that would last throughout the trial.

00:29:40 Speaker_12
While they were preparing for the next hearing, less than a week after the case began, the U.S. Department of Justice filed a motion against them for bringing a lawsuit that was frivolous, asking that Harold pay for their lawyers and court fees.

00:29:55 Speaker_12
And they asked him to post a bond, $10 million, even though he wasn't a criminal defendant.

00:30:01 Speaker_02
I checked to see if there was an insurance policy for clinicians at Yale, and there was one for doctors, and it had a million-dollar deductible, which meant that we would lose our house. If they prevailed on this motion, we would lose our house.

00:30:19 Speaker_02
And I went home, and I told my wife, I think our house here is at risk. And she had been a bankruptcy lawyer, and she said, well, if necessary, we can declare bankruptcy.

00:30:32 Speaker_12
They tried to challenge the government motion.

00:30:36 Speaker_02
I gathered the students at my house, and I said, if we lose this motion, I lose this house. If we win the motion, it's not frivolous, so we have to win. And I said, give it everything you have, because

00:30:57 Speaker_02
This is not just play acting and suing the government anymore. This is for real.

00:31:02 Speaker_12
Harold would take the train back and forth from New Haven to New York City to argue the case. One time he was in Grand Central Station and got word that Judge Johnson wanted him to address the court right then.

00:31:16 Speaker_02
And I went into the Grand Central Station Hyatt, and I went to the restaurant, which hadn't opened for lunch yet. And I said, do you have a speakerphone here? And they said, yeah, at the Matrid East Station. So they set me up. I called the judge.

00:31:31 Speaker_02
And as I'm arguing, people are coming up and trying to get their table to sit down at the restaurant. And I was sort of waving them away, but I didn't want to acknowledge that I was even having these other people around me.

00:31:44 Speaker_02
Anyway, we won that motion, and we won a lot of them. Judge Johnson was more and more sympathetic to us as time went on.

00:31:54 Speaker_12
After they got the temporary restraining order, the students flew to Guantanamo on a military plane from a base in South Carolina.

00:32:03 Speaker_02
They developed personal relations with the refugees, many of whom were the same age. They were excited to see that there were young kids in their 20s who were fighting for them. But they also, I think, were a little suspicious. Why are you doing it?

00:32:19 Speaker_02
What's in it for you? What are your chances of success?

00:32:23 Speaker_12
Harold Koh didn't visit himself until much later. He remembers leaving on a tiny propeller-driven plane.

00:32:31 Speaker_02
It took hours to get there because they had to go around Cuban airspace. Anyway, we land and they took us to this huge aircraft hangar.

00:32:42 Speaker_12
Some of the Haitian detainees were gathered inside.

00:32:45 Speaker_02
And I gave a speech and I said, my father was a refugee like you. And people helped him get to America. That's why I'm here. I think they were relieved to see that I was not Caucasian.

00:33:01 Speaker_02
But I think they weren't quite sure what a Korean American was doing. And there was a moment of indecision about whether they accept our representation. And then a guy got up in Creole, Haitian, and he gave a speech.

00:33:17 Speaker_02
And it turned out what he said is, they're here to help us, and I saw their names in a dream, so we should accept their friendship.

00:33:25 Speaker_12
Harold asked the soldiers to take him to the camp where they were being held.

00:33:30 Speaker_02
There was this barbed wire. It was a prison camp. It wasn't a refugee camp.

00:33:35 Speaker_02
And people were behind the fence, and they had been wearing T-shirts and shorts that they were given by Catholic Relief Services, so they were wearing T-shirts that said things like Miami Dolphins or Miami Heat.

00:33:52 Speaker_02
And when I got out of the car, they all started gathering and moving toward the fence because they had just seen me inside the hangar.

00:34:03 Speaker_02
And suddenly, about four or five of the Haitians ran to the fence and just grabbed the fence, grabbing the barbed wire. And their hands were just bleeding, and they were shaking it. And they started screaming, Arold! Arold!

00:34:21 Speaker_02
And in French, they were saying, Free us! And the soldiers were so freaked out, they told me to get back in the car. And we drove away, and at this point, all of them are screaming at the top of their lungs, Harold!

00:34:41 Speaker_02
And for the rest of the time I worked on the case, I would wake up in the middle of the night. And I think if I don't get them out, that's what they'll be shouting when they go back on the boats. So I thought I got to get them out.

00:35:02 Speaker_12
It was worse than you could have imagined.

00:35:06 Speaker_02
Well, it taught me what it means to be a lawyer. You take on somebody's representation and they don't have anybody else. And you better give it everything you've got, because if you don't and you fail, you don't pay the price.

00:35:29 Speaker_12
In April 1992, Judge Johnson extended Harold and the students' access to Guantanamo. But the president, George H.W. Bush, didn't want them there. It was an election year.

00:35:41 Speaker_02
No president wants to look like they can't control immigration.

00:35:47 Speaker_12
The Justice Department appealed Judge Johnson's order. The case made its way to the Supreme Court.

00:35:53 Speaker_02
Normally a lawsuit gets to the Supreme Court, if at all, once in three to five years. This case went to the Supreme Court five or six times in the first year. And the pace was just insane. I had never argued a case in court before. I probably argued

00:36:12 Speaker_02
25 to 30 times in about a year and a half. I probably stayed up all night working on briefs 50 times.

00:36:21 Speaker_12
The Justice Department applied for a stay.

00:36:23 Speaker_04
Which is an innocuous sounding term and it effectively, it packs a punch because it effectively tears up Judge Johnson's order and says, for now it doesn't mean anything. You can't go to Guantanamo. You can't interfere with what they're doing.

00:36:38 Speaker_12
Students at Yale were in Harold Koh's office and heard the decision over the phone. The Supreme Court had sided with the Justice Department. Harold Koh and his students wouldn't be allowed to investigate asylum hearings in person anymore.

00:36:53 Speaker_04
And that was it. Koh and the students had, and the other human rights lawyer, had no access to Guantanamo.

00:36:59 Speaker_12
Brandt Goldstein says that immigration officials immediately started interviewing people again, deciding whether to send them back to Haiti.

00:37:07 Speaker_04
They sent back as many people as they possibly could. Boom, boom, boom, boom, boom. It started at 6 a.m.

00:37:14 Speaker_12
Then President Bush decided to make another move from his vacation home in Kennebunkport, Maine.

00:37:21 Speaker_04
Bush decides, you know what, forget bringing any more Haitians to Guantanamo. We have thousands there. It's too many. And he issues what amounts to a direct return order.

00:37:36 Speaker_02
He basically said, we're not bringing people to Guantanamo anymore. If people come, we'll just pick them up and bring them back.

00:37:44 Speaker_12
People would be returned to Haiti without being considered for asylum. They were told they could try again from the embassy in Port-au-Prince.

00:37:52 Speaker_02
Now, you have to remember, this was just after the Berlin Wall had been knocked down. This was essentially a floating Berlin Wall. People were trying to flee from persecution. and they were picking them up on boats and bringing them back.

00:38:09 Speaker_02
It wasn't a humanitarian mission because they could have brought them anywhere except Haiti, but they were bringing them back to Haiti. And among other things, they were forcing them off the boats with fire hoses.

00:38:21 Speaker_02
So we called it the Kennebunkport Order because, you know, something issued from someone's vacation home essentially spelled doom for many, many people.

00:38:33 Speaker_12
They had expedited the decisions for the people waiting at Guantanamo, and soon there were very few people left. Marie Genard was still there with her father.

00:38:43 Speaker_06
It's literally deserted because there was, you know, really no more people left except for these people who were HIV positive.

00:38:53 Speaker_12
She says that conditions improved. They were sleeping under roofs instead of tents. What was your day-to-day like?

00:39:03 Speaker_06
My day-to-day, I would wake up in the morning. My dad had kitchen duties. We actually have like a kitchen where we could actually cook some decent food. By 11 o'clock, you know, 10 o'clock we would be done. We used to play cards and dominoes from like

00:39:25 Speaker_06
I don't know, from anywhere from two o'clock to five o'clock in the evening. Once in a while, we would get a movie. And I remember the first movie I ever, ever watched, an American movie, was Basic Instinct.

00:39:41 Speaker_06
Wow, that's quite a choice for a 13-year-old.

00:39:45 Speaker_12
Yes. Sometimes, she says, they were allowed to watch Terminator 2, Judgment Day.

00:39:52 Speaker_06
There's no school, no education, no nothing, and you just sleep and do it again the next day.

00:40:00 Speaker_12
They had no idea how much longer they would be there. The lawyers weren't coming anymore. There were no journalists, very few doctors, and no information.

00:40:10 Speaker_12
There were rumors that no one would be allowed out of the camp until scientists found a cure for AIDS, or that they were all going to be sent back to Haiti.

00:40:19 Speaker_06
And a lot of us, myself and all the kids, we resented our parents.

00:40:23 Speaker_12
I mean, you were so young. Were you talking to the other kids about how your parents had tested positive for HIV?

00:40:32 Speaker_06
Yeah, so, yeah, we talked about it. But we were, as kids, we were so brainwashed with what our parents was telling us. You know, our parents telling us that, you know, we're not really HIV positive. It's a lie.

00:40:49 Speaker_06
They're just saying that because they don't want us to go to the U.S. So, you know, all those people, they were political asylum seekers who were deemed to be asylum seeker. And, but they couldn't send them.

00:41:05 Speaker_06
So they were like, yeah, it's probably a ploy just to make sure, like, even though we all, we all qualify, we are deemed as political, but they didn't want us to come here. So they just put the sting on us saying like, we were, we have AIDS.

00:41:22 Speaker_06
I think until the day my dad died, he was in denial that he was HIV positive.

00:41:30 Speaker_12
Some of the asylum seekers were getting sicker. The doctors at the camp said they asked U.S. Immigration to evacuate everyone with AIDS because they didn't have good enough facilities to treat them.

00:41:42 Speaker_12
Some women at the camp said they were pressured into birth control injections that caused bleeding for months. The detainees started to organize protests. One woman did a lot of planning. She has not to be named.

00:42:00 Speaker_12
Here she is speaking in an Amnesty International news conference.

00:42:03 Speaker_00
I even told the colonel, I am willing to give my life for the others so we can be treated, so the rest can be treated as human. And I started the hunger strike.

00:42:18 Speaker_09
I even wrote a letter to my parents in Haiti and I said, you no longer have a child because I will give my life to save the other Haitians at Guantanamo base.

00:42:41 Speaker_06
It would get violent. A few times, I remember us getting really violent out there. They used to do those P-bomb, I guess you would call it. We have buckets, that's what we had to pee on at nighttime because nobody

00:43:00 Speaker_06
You're not going to get up and go to the portal potty. So people would have those buckets, fill it with pee, and then create a pee bomb to throw at the militaries when they get bad.

00:43:14 Speaker_12
Once, a group tried to escape from the camp. They snuck out at night and got on a ferry to the other side of the base, pretending to be staff. But then they got caught. The next day, there were more protests. Other people tried to sneak out. U.S.

00:43:30 Speaker_12
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00:46:04 Speaker_12
Marie Genard learned that the Immigration and Naturalization Service had given her father a choice. If he waived his parental rights, she could leave Guantanamo and be sent to the U.S. without him.

00:46:16 Speaker_06
My father refused to sign the paperwork to hand me over to the custody of the court. And it wasn't just my father. It was many of the parents. I think their mentality was, We were their last ticket to come to the US.

00:46:42 Speaker_06
They believed the minute they give up their rights to us minors, they would take us and they would send them back to Haiti. And nobody wanted to do that. Nobody wanted to do that.

00:46:56 Speaker_06
They were like, if we hold on, eventually, they would have to get, it was like, we come in as a unit, we want to go as a unit.

00:47:03 Speaker_06
But I think as time progresses, and they realize the American, we call them the white people, weren't playing, so eventually, I think my dead one was one of the last person to actually signed the paperwork, his consent to award me to the court.

00:47:22 Speaker_06
Did you want him to let you go to the U.S.? Absolutely. I did not want to be there anymore. I told my dad if he didn't want me to sign the paper for me to send me, then release the consent for me to go back to Haiti. I didn't want to be there.

00:47:39 Speaker_06
Nobody would want to be there. I mean, for a while, it was fun being there. No school, no homework. But after a while, you start missing, you know, you start missing the food you used to eat. You miss your friends. You had your family.

00:47:54 Speaker_06
You don't have anybody. When I was there, I was molested. I didn't want to be there. It wasn't fun for me. I wanted to go. If I couldn't go to the U.S., I wanted to go home. And my dad knew that.

00:48:11 Speaker_12
Eventually, her father told her that he'd given up his custody rights. A few weeks later, Marie was called to leave.

00:48:18 Speaker_06
I was super excited, super, super excited. I got called, I went to the processing center. At that processing center, usually you're there for a couple of days and then they call your number again.

00:48:30 Speaker_06
So you get on a plane to come to the U.S., you go to Miami, and then once you get to Miami, they put you in a halfway house and then await your final destination of wherever your first appearance is located.

00:48:43 Speaker_06
So when I went my first time and went to the processing center, I didn't get called again, so I got sent back to my dad. And my dad was highly pissed off. And I was highly disappointed and I thought, oh my gosh, am I back here for good? Am I not?

00:49:00 Speaker_06
This is not going to happen. About a week later, they called my number again. So this time I actually ended up, went through.

00:49:09 Speaker_12
On March 19, 1993, Marie was placed with a foster mother in Michigan. I had just turned 16 and I didn't speak any English. First, she only knew a couple of curse words. No one spoke Haitian Creole. Marie got into biking.

00:49:26 Speaker_12
At school, she played basketball and softball and joined the debate team and yearbook club. She says she remembers camping, a lot of camping. And she got a call from her father once a week.

00:49:41 Speaker_12
Harold Koh and the students had continued fighting two separate cases in court. One about whether it was illegal to return people to Haiti without screening interviews or asylum hearings.

00:49:53 Speaker_12
And one about Guantanamo, detaining people who've not been charged with a crime. What was the government's argument?

00:50:03 Speaker_02
The government's argument was basically that Guantanamo was a land without law, a black hole. Because it was outside the United States, they didn't have to comply with the Constitution.

00:50:16 Speaker_02
Guantanamo is a very unusual legal entity in that the United States has, since 1903, had a treaty with the Cuban government where the United States has complete jurisdiction and control, that's the term, over the area of Cuba, which is called Guantanamo.

00:50:36 Speaker_12
Each year, the U.S. government would send Cuba a rent check for $4,085. But Cuba refused to cash them, saying the lease wasn't legitimate.

00:50:48 Speaker_02
So we just pointed out that it's essentially an American enclave. The U.S. flag is the only flag that flies there. The only law that applies there is U.S. law.

00:51:00 Speaker_02
It looks like Middle America, there's a McDonald's, there's a shopping mall, and the only thing that doesn't apply is the U.S. Constitution, according to them, which meant that they could do with these people what they wanted.

00:51:17 Speaker_02
If that were true, they could discriminate against people based on their race. They could prevent them from worshiping the god of their choice. force pregnant women to have abortions against their consent.

00:51:29 Speaker_02
And then we found out that iguanas are protected by U.S. environmental law on Guantanamo. So iguanas have rights but not human beings.

00:51:40 Speaker_12
One of the government lawyers admitted in court that the government knew the medical care for the detainees with HIV-AIDS was inadequate. Grant Goldstein says this was a turning point.

00:51:52 Speaker_04
And if that was the turning point in the case, the moment that sealed it was the result of a video recording that, uh, the students had gotten their hands on just a few days earlier.

00:52:03 Speaker_04
And this was a video recording of one of these camp sweeps by the military with the soldiers in riot gear and the M16 weapons and the guard dogs and the bulldozers knocking down gates and barracks.

00:52:21 Speaker_04
And this is when the judge finally saw exactly how bad things had been. And by the time they turned off the videotape, the case was effectively over.

00:52:33 Speaker_12
Then, one of the lawyers working with Harold Koh, Joe Tringali, said, you could be convicted of murder, your honor, on death row, and you have to be given adequate medical care.

00:52:45 Speaker_12
But if you're a Haitian and HIV positive and found to have a well-founded fear of persecution, you're entitled to die. Judge Johnson issued his judgment in June.

00:52:58 Speaker_12
He said that constitutional rights do apply on Guantanamo, and the government couldn't hold detainees there indefinitely. He said the refugees should be released, and that they couldn't be sent back to Haiti. But there was still the risk of an appeal.

00:53:15 Speaker_02
And then the deputy attorney general called me and said, we will release the 235 HIV-positive Haitians if you agree to vacate the precedent that aliens on Guantanamo have due process rights.

00:53:35 Speaker_02
And I thought, what if they bring more aliens to Guantanamo in the future? shouldn't we have this precedent?" But then it was pretty clear that this is about the lives of 235 people.

00:53:48 Speaker_02
If we went back to the Supreme Court, we were going to lose the precedent anyway. So we agreed. And they brought them out a couple weeks later on one plane. — Harold Koh went to LaGuardia airport to meet them.

00:54:01 Speaker_02
We had them being checked in by immigration, and they were wearing bar-coded bracelets like they're a piece of meat in a grocery store. And suddenly one of the Haitians comes up to me, and he has a piece of paper on which he's written his name.

00:54:23 Speaker_02
And he points to the bar-coded bracelet and he said, this is not my name. And then he holds up a piece of paper and said, this is my name, this is my name. And there are a couple of letters off, it was spelled wrong.

00:54:37 Speaker_02
And then I realized the only reason he had a legal right to be in the United States was because of the court order that we had won. And his name is misspelled in the court order. So if we changed his name, he'd have no legal entitlement to be here.

00:54:54 Speaker_02
So I went back to him and I said, we can't change it. And he said, why not? And I said, well, this is your Ellis Island. And then he said, what's your name? And I said, Ko, K-O-H. He said, where'd they give that name to you? And I said, Ellis Island.

00:55:13 Speaker_12
As for the so-called direct return order, the one that President Bush had signed in his vacation home, telling the Coast Guard to send people back to Haiti without screening interviews or asylum hearings, it was still in effect.

00:55:27 Speaker_12
When Bill Clinton campaigned for president, he promised he would reverse the direct return order. But after he won the election, he kept it in place.

00:55:38 Speaker_12
Harold Koh argued that US and international laws, going back to after the Holocaust, made it illegal to return people fleeing persecution to their persecutors. The Supreme Court announced their decision in June of 1993, 8 to 1.

00:55:56 Speaker_04
They ruled that the word return didn't mean return because the refugees were not being returned from anywhere if they were intercepted on the high seas.

00:56:05 Speaker_04
It's a pretty unpersuasive reading of the law, but the justices were evidently worried about tying the president's hands beyond U.S. borders.

00:56:13 Speaker_04
So the refugees that were held on Guantanamo the last few hundred are allowed into the country, but the direct return order remains.

00:56:24 Speaker_12
The prison we know as Guantanamo today was opened the year after 9-11 by President George W. Bush. What went through your mind when Guantanamo reopened in 2002?

00:56:37 Speaker_02
I thought, don't people learn anything? You know, for people who don't think very far ahead, Guantanamo looks like a solution. and then it turns out to be a problem. There is no exit strategy.

00:56:56 Speaker_02
People who are in a crisis bring people there, and then they can't figure out a way to get them off. Obama said he'd close it within a year. Even Trump started to wonder why we had it, and even Bush, who opened it, said it was a mistake.

00:57:15 Speaker_02
So it is, you know, Obama said in any number of speeches, is this who we are? Is this who we are?

00:57:25 Speaker_12
There are 30 men still incarcerated there today.

00:57:29 Speaker_02
It's still there. So I guess it's who we are.

00:57:35 Speaker_06
When I heard it was opening again, it just made me think about, wow, we were actually in prison. Because that's, you know, at the time, I don't think any of us thought of it that way. But that's exactly what it was. We were incarcerated.

00:57:55 Speaker_06
For the one and a half years, we were detained. I mean, I don't, I don't typically, I don't typically have this conversation. Most people not going to ask you, hey, tell me about your time in Guantanamo Bay, you know.

00:58:20 Speaker_12
Marie's father was released into the United States a few months after her and came to visit in Michigan.

00:58:27 Speaker_06
I couldn't go back to my dad even if I wanted to, but I didn't want to.

00:58:31 Speaker_12
She says at that point, neither one of them knew the language or the culture, and she felt like she was better off staying with her foster mother. After a few years, Marie's foster mother officially adopted her.

00:58:44 Speaker_06
We always kind of say, yeah, we were like kind of destined, because the March 19th that just passed marked our 31 year of being a family unit. So we was just joking about that.

00:58:59 Speaker_06
And I say, yeah, you know, I've been putting up with you for the last 31 years. She said, you've been putting up, I've been putting up with you. You know, like he said, you know how difficult it is to have a teenager who didn't speak your language?

00:59:14 Speaker_06
I wouldn't be where I'm at today without my mom. That's hands down.

00:59:19 Speaker_12
Today, Marie is married with three children. She lives in Tampa. As for the other kids Marie was detained with, all of them were eventually let into the U.S. Some joined the U.S. military. One became a well-known chef in New York.

00:59:37 Speaker_12
Harold Koh says he's attended some of their graduations.

00:59:41 Speaker_02
A number of them went to school in Mattapan, which is a community of color south of Boston. And I remember being at this graduation, and this kid who had come off when he was 12 years old was now 18.

00:59:57 Speaker_02
And he's wearing his graduation robe, but he's wearing a backward baseball cap instead of a mortarboard. And his pants are down around his thighs, and he sort of swaggers across the stage. And the woman sitting next to me said, isn't that awful?

01:00:19 Speaker_02
What will he become? And I couldn't resist. And I said, lady, I think he's going to be dean of Yale Law School.

01:00:45 Speaker_12
This year, there have been more reports of people fleeing gang violence in Haiti. The direct return order still stands, which means the Coast Guard is intercepting boats and sending Haitians back without a chance to apply for asylum.

01:01:10 Speaker_12
Criminal is created by Lauren Spohr and me. Nadia Wilson is our senior producer. Katie Bishop is our supervising producer. Our producers are Susanna Robertson, Jackie Sajico, Lily Clark, Lena Sillison, and Megan Kinane.

01:01:25 Speaker_12
Special thanks to Gabrielle Burbay, who helped produce this episode. To learn more about the story, check out Brant Goldstein's book, Storming the Court, How a Band of Law Students Fought the President and Won. We'll have a link in the show notes.

01:01:40 Speaker_12
Our show is mixed and engineered by Veronica Simonetti. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com. And you can sign up for our newsletter at thisiscriminal.com slash newsletter.

01:01:55 Speaker_12
We hope you'll join our new membership program, Criminal Plus. Once you sign up, you can listen to criminal episodes without any ads, and you'll get bonus episodes with me and criminal co-creator Lauren Spohr, too.

01:02:07 Speaker_12
To learn more, go to thisiscriminal.com slash plus. We're on Facebook and Twitter at Criminal Show, and Instagram at criminal underscore podcast. We're also on YouTube at youtube.com slash criminal podcast.

01:02:21 Speaker_12
Criminal is part of the Vox Media Podcast Network. Discover more great shows at podcast.voxmedia.com. I'm Phoebe Judge. This is Criminal.

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