Harold Koh
Appearances
Criminal
A Land Without Law
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A Land Without Law
When you got to Guantanamo, what was the first thing that happened when you got off the boat?
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A Land Without Law
They gave Marie a photo ID. She still has it. What do you look like in that picture?
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Marie's father told her she might be interviewed about why they left. If they ask a question, just tell the truth, really. 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.
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The government kept count of the screenings. From 1981 to 1991, they interviewed 23,000 people, and only 28 were allowed into America. But Marie felt sure that she and her father would get a hearing because of her father's work with the Lavalasse Party.
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A Land Without Law
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 Bulkley.
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A Land Without Law
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A Land Without Law
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A Land Without Law
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A Land Without Law
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A Land Without Law
Marie Chouinard's father grew up in the Dominican Republic. He moved to Haiti as a teenager.
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A Land Without Law
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A Land Without Law
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A Land Without Law
That's q-u-i-n-c-e dot com slash criminal to get free shipping and 365-day returns. quince.com slash criminal. 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.
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A Land Without Law
Harold Koh and the Yale Law students asked U.S. Immigration for access to the detained Haitians at Guantanamo, but didn't hear back.
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A Land Without Law
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.
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A Land Without Law
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.
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A Land Without Law
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. They were asking Judge Johnson for a temporary restraining order, a pause on all detainee interviews until lawyers were permitted access.
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A Land Without Law
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.
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A Land Without Law
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. And they asked him to post a bond, $10 million, even though he wasn't a criminal defendant.
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A Land Without Law
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.
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A Land Without Law
After they got the temporary restraining order, the students flew to Guantanamo on a military plane from a base in South Carolina.
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A Land Without Law
Harold Coe didn't visit himself until much later. He remembers leaving on a tiny propeller-driven plane.
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Harold asked the soldiers to take him to the camp where they were being held.
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François Duvalier, or Papa Doc, was known for ordering Haiti's secret police to commit over 30,000 murders.
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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.
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The Justice Department appealed Judge Johnson's order. The case made its way to the Supreme Court.
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Students at Yale were in Harold Coe's office and heard the decision over the phone. The Supreme Court had sided with the Justice Department. Harold Coe and his students wouldn't be allowed to investigate asylum hearings in person anymore.
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A Land Without Law
They were officially called the Tauntaun Makut, 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. 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.
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Brandt Goldstein says that immigration officials immediately started interviewing people again, deciding whether to send them back to Haiti.
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Then President Bush decided to make another move from his vacation home in Kennebunkport, Maine.
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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.
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They had expedited the decisions for the people waiting at Guantanamo, and soon there were very few people left. Marie Jeannard was still there with her father.
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A Land Without Law
She says that conditions improved. They were sleeping under roofs instead of tents. What was your day-to-day like? Hmm.
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A Land Without Law
Yes. Sometimes, she says, they were allowed to watch Terminator 2, Judgment Day.
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A Land Without Law
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. 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.
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I mean, you were so young. Were you talking to the other kids about how your parents had tested positive for HIV?
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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. And then the government closed schools. This was in 1986. Protestors passed out flyers for, quote, Operation Uproot.
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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. 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.
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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. soldiers swept the camp in the middle of the night and arrested 31 people. U.S.
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immigration had given the parents in the camp an option to give up custody of their children and have them sent to the U.S. alone. We'll be right back.
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A Land Without Law
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You can find out more information at thisiscriminal.com slash live. See you soon. Marie Jeannard 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.
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A Land Without Law
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. 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.
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A Land Without Law
Eventually, her father told her that he'd given up his custody rights. A few weeks later, Marie was called to leave.
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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. At school, she played basketball and softball and joined the debate team and yearbook club. She says she remembers camping, a lot of camping.
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And she got a call from her father once a week. Harold Coe 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. And one about Guantanamo detaining people who have not been charged with a crime. What was the government's argument?
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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.
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One of the government lawyers admitted in court that the government knew the medical care for the detainees with HIV-AIDS was inadequate. Brant Goldstein says this was a turning point.
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And then he fled the country. Marie remembers seeing people retaliating against anyone who was part of Baby Doc's regime.
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Then, one of the lawyers working with Harold Coe, Joe Tringali, said, You could be convicted of murder, Your Honor, on death row, and you have to be given adequate medical care. But if you're 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.
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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.
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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. 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.
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Harold Coe argued that U.S. 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.
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The prison we know as Guantanamo today was opened the year after 9-11 by President George W. Bush. What threw your mind when Guantanamo reopened in 2002?
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Marie's father was released into the United States a few months after her and came to visit in Michigan.
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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.
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A Land Without Law
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. Harold Coe says he's attended some of their graduations.
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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. Criminal is created by Lauren Spohr and me. Nadia Wilson is our senior producer. Katie Bishop is our supervising producer.
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After a few more years of protests and strikes and multiple election attempts, there was an election planned for December 1990.
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Our producers are Susanna Robertson, Jackie Sajico, Lily Clark, Lena Sillison, and Megan Kinane. 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. Our show is mixed and engineered by Veronica Simonetti.
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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. We hope you'll join our new membership program, Criminal Plus.
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A Land Without Law
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A Land Without Law
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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A Land Without Law
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. His name was Jean Bertrand Aristide, and he was a Catholic priest.
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President Aristide was inaugurated in February 1991. Marie remembers her father got bigger roles in the Lavalasse movement, so they moved to the city. But less than eight months later, there was a coup, and military leaders took over again. They arrested anyone who supported President Aristide, and soldiers deliberately shot civilians in public.
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There were reports that people could be arrested, tortured, or killed for as little as looking at a photo of the former president.
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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.
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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.
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Then they were approached by another boat. It was the U.S. Coast Guard. Tell me about what happened when the boat was intercepted.
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A Land Without Law
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A Land Without Law
I'm Phoebe Judge. This is Criminals. In 1991, thousands of people on boats from Haiti were intercepted by the U.S. Coast Guard.
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A Land Without Law
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 a thousand Haitian refugees held on Coast Guard boats. 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.
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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.
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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. His voicemail box filled up, and more than once he came to work to find his door covered in Post-it notes.
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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.
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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.
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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.
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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?
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And then, over spring break, Harold and the students took a train to federal court in Brooklyn and filed the case. 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?