Having accepted the official line on conditions in Haiti, Guantánamo officials could easily mistake the desperation of Haitians slotted for return to Port-au-Prince as sheer defiance. In April 1992, ninety-six Haitians became “belligerent” after being loaded aboard the Coast Guard cutter
Tampa
for repatriation. Upon arriving in Haiti the following morning, the refugees refused to disembark, with some insisting that they would rather perish on the ship than confront what awaited them. “The negotiations eventually reached an impasse,” according to the official line, leading U.S. military personnel to threaten to blast them off the ship with fire hoses. The threat sufficed to lure at least one Haitian ashore, and when he complained to witnesses that the Americans had used force, a Haitian policeman responded, “We have force here, too,” raising a “ripple of laughter” on the dock. The laughter may have broken the tension, as the government chronicler suggests, but it could not alter the fate of the refugees, one of whom was Frantz Guerrier, the dentist, who was brutally beaten his second night back while asleep in his grandmother's bed.
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In fact, Guerrier need not have been aboard the
Tampa
that April day. With his dental office burned, and his mother, daughter, and wife murdered, Guerrier passed the “credible fear” test that qualified refugees for an asylum hearing in the United States. But his passage there
was blocked after a blood test revealed that he was HIV-positive, which put him along with 230 other HIV-positive Haitians in social isolation and legal limbo on the base. On February 29, 1992, the INS announced that screened-in Haitians found to be HIV-positive would not be brought to the United States; they would remain at Guantánamo indefinitely while U.S. officials determined their fate.
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The testing of Haitians at Guantánamo Bay for HIV/AIDS began as a result of U.S. officials seeking assistance from allies in the region to relieve the crush of refugees. Belize and Honduras responded positively, but insisted that any Haitians brought to their countries be tested for HIV/AIDS. In the United States, the discovery that some Haitian refugees were HIV-positive triggered a 1986 law sponsored by Senator Jesse Helms prohibiting the admission of HIV-positive individuals. All the Haitian refugees on Guantánamo would have to be tested. Moreover, an INS official explained, initially screened-in Haitians found to carry the virus would be made to undergo a second screening interview more rigorous than the first. No longer would it suffice for HIV-positive refugees to demonstrate a “credible fear” of persecution upon return to Haiti. They would now have to prove to have a “well-founded fear”âprecisely the bar required by judges at immigration hearings in the United States, only there, refugees facing such interviews were entitled to legal counsel. At Guantánamo, the INS denied refugees the right to legal counsel on the grounds that Guantánamo was part of Cuba, not part of the United States, hence outside U.S. constitutional jurisdiction. Besides, one INS official later testified, lawyers would only emphasize the strengths of their clients' claims.
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Even a finding of well-founded fear of persecution among HIV-POSITIVE Haitians did not result in transfer to the United States. The point of the double jeopardy was to clear Guantánamo of HIV-positive refugees, not speed their passage stateside. There remained the thorny problem of the 1986 law prohibiting the admission of HIV-positive individuals. Frantz Guerrier and company would simply have to wait.
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And wait they did, in conditions that one federal judge later likened to the sort of confinement typically reserved for hardened criminals. Yolande Jean described Camp Bulkeley, where screened-in HIV-positive Haitians lived in isolation, as “a space cordoned off with
barbed wire. Wherever they put you,” Jean explained, “you were meant to stay right there; there was no place to move. The latrines were brimming over. There was never any cool water to drink, to wet our lips. There was only water in a cistern, boiling in the hot sun. When you drank it, it gave you diarrhea ⦠. Rats crawled over us at night ⦠. When we saw all these things, we thought, it's not possible, it can't go on like this. We're humans, just like everybody else.”
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Frantz Guerrier was so repelled by life at Camp Bulkeley that he opted to return to Haiti, where at least he had a fighting chance.
Â
By March 1992 the legal expedients hastily contrived by Florida attorneys to halt the forced repatriation were no longer in effect. In early February 1992, the Eleventh Circuit Court in Atlanta, having already lifted an injunction imposed by Miami District Court, vacated the injunction entirely, wiping it off the legal record. Haitians detained at Guantánamo Bay, the court declared, had “no substantive rights” under U.S. law. Toward the end of the month, the U.S. Supreme Court denied the Haitians' application for a stay of the Eleventh District Court's ruling along with a petition for certiorari (judicial review), leaving the Haitians at the mercy of the INS.
Enter another advocacy group, Haitian Centers Council, Inc., out of Brooklyn, New York, which filed a lawsuit on March 17 in New York District Court arguing that the new procedures announced by the INS at the end of February to rescreen HIV-positive refugees without the benefit of counsel violated both the First Amendment right to free speech and the Fifth Amendment right to due process. The government's plan to detain indefinitely those HIV-positive Haitians found to have a well-founded fear of persecution left them “in limbo.” The Haitians were “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.” Surely such a state of affairs warranted “judicial intervention.”
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Well, U.S. District Court judge Sterling Johnson demanded of INS officials, wasn't it true that the Guantánamo base was subject to the “complete jurisdiction and control” of the United States, and hence
answerable to U.S. and international law? No, the government replied. The base was located on territory sovereign to Cuba. Neither the Immigration and Naturalization Act, the Administrative Procedures Act, nor Article 33 of the UN Convention and Protocol on the Status of Refugees created “judicially enforceable rights on the part of the individual Haitians on Guantánamo.” The Haitians were “outside the United States and therefore they have no judicially cognizable rights in United States courts.” Skeptical, Judge Johnson asked the government attorney if the government was really arguing that “Haitians, or anyone else at Guantánamo Bay, have no constitutional protection at all?” The government responded affirmatively, prompting Johnson to marvel, “You are saying, if I hear you correctly, that an agency like the INS, assuming they are arbitrary and capricious and even cruel, that the courts would have no jurisdiction because the conduct did not occur on US soil?” Precisely, the government counsel replied.
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In late March, alarmed by what he heard in court, Judge Johnson imposed a temporary restraining order halting the repatriations. On April 1 the parties were before him again, this time with the government arguing that admitting legal counsel to Guantánamo Bay for the refugees would be “meddlesome” and “adversarial” and would “slow things down.”
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On April 6, Judge Johnson replaced the temporary restraining order with a preliminary injunction upholding his previous ruling and granting plaintiffs' counsel the right to meet with their clients at Guantánamo Bay. The judge was unconvinced that the lawyers would prove any more meddlesome than the media, clergy, physicians, and numerous civilians already there. Moreover, he insisted, due process applied at Guantánamo, a facility under the full authority of the United States.
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Within hours, the government appealed Johnson's preliminary injunction to the Second Circuit Court in Manhattan. Before that court, the government argued that Judge Johnson's preliminary injunction would serve as a magnet, luring Haitians to the water at their peril, a noteworthy appeal from an administration that had not taken much interest in Haitians' well-being over the course of the previous twenty years.
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The court denied the government's request, leaving the preliminary injunction in place. The government then appealed the Second
Circuit Court's ruling to the U.S. Supreme Court. On April 22 the High Court stayed Judge Johnson's injunction, with Justice Clarence Thomas casting the deciding vote.
The High Court's stay jump-started the “credible fear” hearings at Guantánamo, where INS officials ordered their subordinates to clear the place out.
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Meanwhile, the surge in Haitian boaters that began in early April continued unabated. More and more Haitians seemed determined simply to get to Guantánamo Bay, where, since the outbreak of the coup, the odds of being screened into the United States had risen from virtually nil the previous decade to roughly one in three. Up to this time, in order to get to Guantánamo, boaters had only to make it as far as the Coast Guard cutters ringing the Haitian coast, prompting many to take to the sea in virtually anything that would float. On April 29, the Coast Guard ordered its ships to pull back beyond the range of visibility from the shores of Haiti.
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Still, the flood of exiles continued. On May 19 more than 1,600 Haitians were plucked from the sea, the record for a single day since the coup began. By May 20 the base commander announced the population of the camp at 12,482, just 18 shy of capacity, prompting government officials to suspend interdictions. Thereafter, only Haitian boaters in mortal peril would be picked up at sea. By this time, 34,090 Haitians had come ashore at Guantánamo Bay since the exodus began.
U.S. officials recognized that converting the decade-old Alien Migration Interdiction Operation to a search-and-rescue venture would not stop desperate Haitians from taking to the sea. To that end, on May 24, 1992, President Bush issued what became known as the “Kennebunkport Order,” after the seaside town in Maine that was home to the Bush vacation compound, from which the president announced a new policy. From that day forward all Haitians picked up at sea would be immediately returned to Haiti. No more transfer to Guantánamo, no shipboard immigration screenings to establish either credible or well-founded fear, no due process, no legal counsel, nothing. Haitians who sought asylum in the United States could take their claims to the U.S. consulate in Port-au-Prince, a notoriously unsympathetic place.
The Kennebunkport Order won immediate condemnation at home and abroad. Critics said it violated Article 33 of the UN Convention and Protocol on the Status of Refugees (prohibiting the return of refugees
to a place where they faced political persecution); the president had erected “a floating Berlin Wall.”
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Suddenly, Guantánamo, denounced for its brutal conditions and lack of constitutional protections, was defended as the least worst place to house refugees. Better to end up in Guantánamoâeven with HIVâthan to be returned to Port-au-Prince.
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When next the administration and its critics faced off in Brooklyn District Court, the plaintiffs sought a temporary restraining order, arguing that the Kennebunkport Order jeopardized the well-being of a vast class of Haitian returnees. Not so, argued U.S. solicitor general Kenneth Starr, whose very presence in district court signaled just how seriously the Bush administration viewed this case. “We have conducted over two thousand in-country interviews with repatriates. We have found no evidence of persecution or attacks on these individuals, none in our two thousand interviews.”
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Just as in
Civiletti
, the government's glowing description of conditions in Haiti won the intense scrutiny of the Haitians' advocates. Between mid-November 1991 and May 1992, when the U.S. government was more or less abiding by the UN protocol and by U.S. statute law for the treatment of refugees, roughly 30 percent of Haitians screened at Guantánamo Bay passed the “credible fear” test, and were admitted to the United States for full asylum hearings. These numbers spoke for themselves: evidently
somebody
was facing persecution in Haiti. On May 31 six Haitians attempted suicide aboard a U.S. Coast Guard cutter heading for Port-au-Prince, with one leaping overboard in Port-au-Prince harbor.
On June 5, Judge Johnson issued his ruling. Unable to side with the Haitians due to a legal technicality, he nonetheless lambasted the government for making a mockery of Article 33. “It is unconscionable,” the judge wrote,
that the United States should accede to the Protocol and later claim that it is not bound by it. This court is astonished that the United States would return Haitian refugees to the jaws of political persecution, terror, death and uncertainty when it has contracted not to do so. The Government's conduct is particularly hypocritical given its condemnation of other countries who have refused to abide by the principle
of non-refoulement. As it stands now, Article 33 is a cruel hoax and not worth the paper it is printed on.
Still, for all his indignation, the judge could do little to ease the misery of the HIV-positive refugees. The question of their right to counsel would remain moot pending a full trial, scheduled for late October.
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