Meanwhile, the U.S. military wasted no time in tearing down Camp McCalla, just as it consolidated HIV-positive Haitians into Camp Bulkeley. By mid-June the Haitian population at Guantánamo was down to 2,500; by the first of July, only the 233 HIV-positive refugees remained.
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As flawed as the screening process had been at Guantánamo Bay, the closing of the camp was a catastrophe for many refugees. When open to refugees, Guantánamo signified U.S. recognition of political repression in Haiti. The closing of the camps altogether bestowed political legitimacy on Haiti's military government.
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Life for the HIV-positive refugees detained at Camp Bulkeley was difficult. In July 1992, as temperatures rose and as Camp McCalla folded, the “residents” of Camp Bulkeley became increasingly exasperated by the continuing uncertainty over their fate and the constant, coerced medical testing to which they were subjected. “We had been asking them to remove the barbed wire” surrounding the camp, Yolande Jean recalled; “the children were playing near it, they were falling and injuring themselves. The food they were serving us, including canned chicken, had maggots in it. And yet they insisted that we eat it. Because you've got no choice. And it was for these reasons that we started holding demonstrations.”
On July 17, 1992, tension at the camp boiled over. When a shrug became a push, a full-scale riot broke out between refugees brandishing sticks, stones, and anything else they could find and soldiers armed with, among other things, a fire hose. The fire hose won the day, but not before a few guards suffered minor injuries, auguring their return in force.
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The following day, an air force team swept the camp for homemade weapons, rounding up the alleged instigators of the previous day's disturbance. Three Haitians were carted off to the brig, thirty-nine others placed in isolation at Camp 7.
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The JTF commander
praised the air force unit for conducting “themselves magnificently by incurring more injuries to themselves in their attempts not to hurt the migrants.”
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The Haitians remembered the situation differently. “Since we left Haiti last December we've been treated like animals,” one witness recalled. “When we protested about the camp back then, the military beat us up. I was beaten, handcuffed and they spat in my face. I was chained, made to sleep on the ground like animals, like dogs, not like humans.”
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Unfortunately for the U.S. government, the so-called Recapture of Camp Bulkeley was recorded on videotape and later became a subject of review in Brooklyn District Court. Announced by the thunder of a warplane flying low over the camp, the operation proceeded with a bulldozer demolishing the gate as soldiers, clad in combat helmets and vests, batons and shields in hand, rushed into the camp, driving the refugees into small holding pens while ransacking their shelters. Soldiers bearing M-16 machine guns, some leading police dogs, accompanied the combat patrol into the camp. The JTF video depicted Haitians, male and female, their hands bound behind their backs, being loaded into vans. Children and pregnant women were among those arrested.
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The official military account speculated that “the riots were the result of putting too much emphasis on improving the migrants' quality of life at the expense of relaxing camp control.”
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Give a Haitian an inch and he'll take a mile. From mid-July 1992 forward, any semblance of lax control vanished, and still the Haitians rebelled. When, by late August, nearly six weeks after the riot, some of the Haitians remained in Camp 7, their compatriots petitioned the military for their release. The military denied the request, prompting the Haitians to storm the compound and liberate the prisoners themselves. This time, when base security arrived, the Haitians set fire to their camp, prompting a still heavier military response, with more pushing, shoving, and arrests. And so the cycle of violence continued, with protests, hunger strikes, and, inevitably, more time in the brig.
Conditions at Camp Bulkeley deteriorated so precipitously that even military officials joined in the criticism. On July 18 the head of the Atlantic Command warned that the “creation of a âpenal' environment within the camp presents the opportunity for heavy criticism
from migrant support and humanitarian organizations. We have reached the point where such an environment stretches the margin of the interpretation of our humanitarian mission.”
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In September 1992, Admiral Paul D. Miller informed the Joint Chiefs of Staff that the health care at Guantánamo Bay did not meet the needs of HIV-positive detainees. Let's close this chapter of GTMO history, Miller urged his superiors. That December, a departing camp commander recommended moving the HIV-positive Haitians to the United States.
Still, the detainees languished. By January 1993, Yolande Jean and her colleagues had become so fed up with the uncertainty, forced medical treatment, and physical abuse that they began a hunger strike.
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By March, Jean herself was so despondent that she contemplated committing suicide.
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Meanwhile, the advocates for the Haitians appealed their case to the Second Circuit Court in late June 1992. The Second Circuit had previously upheld Judge Johnson's preliminary injunction. Now it expressed bewilderment at the government's claim that it could do with the Haitians whatever it wanted so long as they were outside U.S. territory. Late the next month, the court issued a ruling prohibiting the refugees' direct return to Haiti. U.S. law applied at sea, the court announced. The Refugee Act of 1980 was unequivocal on the matter of forced return.
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The Supreme Court eventually stayed the lower court's ruling, but still the government wasn't satisfied. Later that summer the lead lawyer on the case announced that the Justice Department also wanted the court to vacate the Second Circuit's ruling that the U.S. Constitution applied at Guantánamo Bay, thereby preserving Guantánamo's place beyond the reach of law. But rather than taking the case directly to the Supreme Court, the government offered the Haitians' advocates a deal: if they agreed to the ruling being vacated, the government would grant them what they had sought all along, namely, access to their HIV-positive clients on the naval base. There would be no need for a formal trial. Advocates for Haitian Centers Council responded that they could not accept the deal without checking with their clients first. And so they gained access to Guantánamo Bay. What they found
there so deeply offended their sense of justice that they rejected the government's offer to exchange permanent access for vacation. As a result, the legal case
Haitian Centers Council Inc. v. McNary
was “bifurcated” (split in two): the question of the Haitians' rights to a lawyer would go forward in Brooklyn District Court, though not before the result of the presidential election; the question of whether the U.S. Constitution applied at Guantánamo and at sea was headed for the Supreme Court the following spring.
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On January 14, 1993, less than a week before taking office, President-elect Bill Clinton abruptly dropped his opposition to the Bush administration policy of forcible return, thereby ensuring a trial in Brooklyn Federal Court. The next day, on January 15, the U.S. Coast Guard launched “Operation Able Manner,” a blockade of the Haitian coast by twenty-two Coast Guard cutters. One week later, the Coast Guard reported that it had “saved and repatriated” 534 Haitians in the first week of the new operation, bringing the total number of Haitians “saved and repatriated” since the new year to nearly 3,500. The INS, generally unsympathetic to Haitian asylum claims, screened in roughly one fifth of the boaters picked up in the first two weeks of the new year, de facto acknowledgment that persecution persisted in Haiti.
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In February, by a margin of 76 to 23, the U.S. Senate passed a resolution prohibiting all HIV-positive foreigners from entering the United States. If the Haitians on Guantánamo were going to get relief, it would come not from Congress but from the courts.
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On March 2, 1993, the U.S. Supreme Court heard oral arguments in the newly renamed case
Sale v. Haitian Centers Council
. According to the government attorney, neither the Immigration and Nationality Act of 1952 nor the 1967 UN Protocol on the Status of Refugees was intended to have extraterritorial effect, and so did not apply to Guantánamo. Much more than a technical question of law was at stake here, the government insisted. To apply the Constitution extraterritorially would only induce more Haitians to take to the seas, thereby putting more of them in jeopardy. It was both good law and sound policy to reverse the Second Circuit Court's ruling.
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Meanwhile, the plaintiffs, anticipating oral argument before a
court that had twice sided with the government against the Haitians by a 5â4 majority, hoped to appeal to the so-called plain language predilection of conservative justice Antonin Scalia to win a majority, however slim. In 1968 the United States acceded to the UN protocol enjoining signatories not to “return a refugee in any manner whatsoever” to a setting where his life or liberty might be at risk. In 1980 the U.S. Congress amended a statute that authorized the attorney general to “withhold deportation of any alien” specifically “within the United States” to any country where he might be at risk, to read, “the Attorney General shall not deport or return any alien” to such a place. The old qualification “within the United States” was removed; a new one, “deport or return,” was added. Plainly, the Haitians' counsel insisted, both the international protocol and the U.S. statute were meant to apply overseas. To deny the fact was to invite a world of chaos and lawlessness, in which nations could do whatever they wanted on the high seas or at ostensibly law-free places such as Guantánamo.
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Six days later, the plaintiffs were back in the more sympathetic surroundings of Brooklyn District Court, where Judge Sterling Johnson finally called to order the formal trial that would determine whether the U.S. Constitution protected the HIV-positive Haitians detained at Guantánamo Bay. Presented with eyewitness and video testimony describing abusive treatment of the HIV-positive detainees, as well as inadequate medical care, Judge Johnson grew incredulous at the government argument that U.S. law did not apply at Guantánamo Bay. “One of the problems I have,” the judge told an INS attorney, was the government's contention that it had the unchecked authority “to take, kidnap, or abscond, whatever you want to call it, take a group and put them into a compound, whether you call it a humanitarian camp or a prison, keep them there indefinitely while there has been no charge leveled against them and there is no light at the end of the tunnel?”
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One week into the trial, yet another uprising broke out at Camp Bulkeley, with detainees setting fire to their lean-tos and pelting their captors with rocks. In reward for their recalcitrance, nearly forty refugees were hauled off to the brig, including Yolande Jean, who was so weak from her hunger strike that she was barely able to walk. The camp commander, Colonel Bud Paulson, set up an impromptu court-martial at the brig, inviting the alleged agitators to confess their crimes
and express remorse. Those who refused to do so received sentences of up to three months in solitary confinement. Yolande Jean remembers approaching Colonel Paulson skeptically. “You are the judge,” she murmured. “You are the lawyer. You are everything. What am I supposed to do?”
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Months later, Judge Johnson issued his ruling in
Haitian Centers Council v. Sale
. The judge sided with the plaintiffs on the essential issues before his court. The U.S. Constitution applied at Guantánamo, along with all due process protections and security against indefinite detention and unfair treatment. The judge ordered the government to let the detainees go. Judge Johnson's ruling echoes Judge King's ruling of thirteen years before. “The detained Haitians are neither criminals nor national security risks,” Judge Johnson observed. “Some are pregnant mothers and others are children. Simply put, they are merely the unfortunate victims of a fatal disease. The Government has failed to demonstrate to this Court's satisfaction that the detainees' illness warrants the kind of indefinite detention usually reserved for spies and murderers.”
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The government referred to Camp Bulkeley as a “humanitarian camp.” The facts presented at trial suggested otherwise. “It is nothing more than an HIV prison camp presenting potential public health risks to Haitians held there.”
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Moreover, the First Amendment applied on Guantánamo, territory “under the complete control and jurisdiction of the United States government, and where the government exercises complete control over all means of delivering communications.” Indeed, the judge observed, much of the information furnished to the refugees by the government was willfully inaccurate, and represented only the narrow “viewpoint of which the Government approves.”
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Ditto due process, Johnson ruled, quoting the Second Circuit Court. The plaintiffs “are not âsome undefined, limitless class of non-citizens who are beyond our territory,' they are instead an identifiable group of people who were interdicted by Americans in international waters pursuant to a binding Agreement Between the United States of America and Haiti, and who have been detained in territory that is subject to the exclusive control of the United States.”
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