NARRATION: Over the years I’ve been reporting on Guantanamo, I’ve seen the prison camp evolve. Once crammed full of suspected terrorists in orange jumpsuits, parts of the camp are now empty.
ARUN RATH (CORRESPONDENT): Just right here by the side of the road, this is where the detainees were kept in cages essentially
NARRATION: Gitmo is a symbol of the post 9/11 war on terror, but on my trips here, I began to hear a rarely told history of how it was first used to hold people outside the reach of US law. It began a decade before 9/11, in the wake of a bloody coup in September of 1991… just across the water, in nearby Haiti.
ARCHIVAL (ABC, 9-30-91):
PETER JENNINGS: A military coup is underway.
ARCHIVAL (ABC, 11-27-91):
The Haitian military overthrew elected president Jean Bertrand Aristide.
ARCHIVAL (CBS, 11-3-31):
DAN RATHER: There are unconfirmed reports that soldiers have killed up to 150 people this week.
MARIE GENARD: I was 14. My dad was in hiding, so every time they come knocking on the door looking for my dad. It was like, we don’t know where he’s at. I’ve seen people being burned alive, and people being beheaded just for your political belief.
ARCHIVAL (CBS, 10-4-91):
Some army and police units are working as marauders.
MARIE GENARD: My dad could have died at any given day. So we had to flee.
NARRATION: Marie and her father were among the more than 70,000 Haitians who took to the sea in the aftermath of the coup…
ARCHIVAL (ABC, NIGHTLINE, 11-27-91):
It is a refugee flood.
NARRATION: … hoping to get political asylum in the US.
ARCHIVAL (ABC, 5-25-92):
For many leaving by boat was their only escape…
MARIE GENARD: The boat would be leaking water sometimes so we had a bucket.
ARCHIVAL (ABC, 11-27-91):
Officials worry that hundreds of Haitians may have died in the rough seas.
MARIE GENARD: We run out of food. We run out of water. People was sick. We were in a predicament. You couldn’t go back.
ARCHIVAL (ABC, 11-17-91):
The Coast Guard is now stopping Haitian sailboats around the clock.
NARRATION: US officials were inundated, intercepting hundreds of boats.
ARCHIVAL (CBS, 11-23-91):
The State Department says the Haitians don’t meet standard criteria for asylum
NARRATION: After a quick review they rejected most of the Haitians’ asylum claims.
ARCHIVAL (CBS, 11-23-91):
Describing them as economic, not political refugees.
NARRATION… and sent them back to Haiti.
LISA DAUGAARD (HUMAN RIGHTS ATTORNEY): The Coast Guard was picking people up and sending them back to Haiti without asylum processing basically. So, without giving people a chance to establish that they were fleeing political persecution.
ARCHIVAL (NBC, 11-25-91):
The Haitian exodus has tied American refugee policy into knots.
NARRATION: But the refugees kept coming.
ARCHIVAL (NBC, 1-29-92):
One US official called it a national security crisis.
NARRATION: So they were brought to a place nearby, where normal US asylum rules would not apply.
ARCHIVAL (ABC, 11-17-91):
Nearly 1200 Haitians are being detained at the US naval base in Guantanamo Bay.
NARRATION: American soldiers quickly built a holding camp at the naval base on Guantanamo Bay, Cuba.
MARIE GENARD: It was massive, a massive camp and it was fenced with razor wire. And you have the tower with the guards. And then during the day, you just roamed the yards. We didn’t have no rights because technically we not in the US, so it felt like you were in prison. I mean, that’s what it was to us, it was being in a prison.
NARRATION: Soon, more than 12,000 people would be held here while their asylum claims were being processed – but without access to lawyers, like they would have had if they’d made it to the US.
BRANDT GOLDSTEIN (AUTHOR, STORMING THE COURT): This is essentially Guantanamo episode one. We had foreign nationals held at Guantanamo precisely because the government believed, or took the position that there were no legal constraints.
NARRATION: That issue caught the attention of a group of law students who were watching the story unfold.
LISA DAUGAARD: I was in my last year at Yale Law School where the students had been working on a variety of human rights litigation projects, and one of them was addressing what was happening with Haitian refugees. And the question was whether anything more could be done.
RAY BRESCIA (YALE LAW SCHOOL, 1992): What was happening on Guantanamo Bay was wrong and we felt like we needed to do something which was to file a lawsuit.
NARRATION: The law students brought their concerns to their professor, Harold Koh.
HAROLD KOH: The students came to me and they said, we’d like you to sue the US government. The case started as a request for lawyers, and what happened with the Haitians, who were on Guantanamo, but they didn’t have legal representation and they could be returned potentially to their death. So how could it be that you could be asked questions, have no right to consult a lawyer and be returned to your death?
NARRATION: The government argued that the Haitians weren’t entitled to lawyers, because Guantanamo was beyond the jurisdiction of US law.
BRANDT GOLDSTEIN: The position of the government really was twofold. Number one, these detainees don’t even have the right to walk into court to challenge their detention. The government’s second position was, even if they can walk into court and challenge their detention, there is nothing we’re doing illegal here.
NARRATION: Bob Begleiter represented the government. At the time, he says, he believed the Haitians at Gitmo were receiving due process.
BOB BEGLEITER: Due process for them meant that their asylum applications were being considered in an impartial way. That was due process. The government would say they got it, and, ultimately, I think they all did.
NARRATION: In the spring of 1992, the two sides met in federal court for a pre-trial hearing. The judge ruled that the team from Yale could go to Guantanamo.
HAROLD KOH: They brought me to the outskirts of the camp and there they were all these Haitian, including many children, surrounded by barbed wire. And they saw me get out of the car and a whole bunch of them came up to the barbed wire and just started grabbing the barbed wire so hard that blood was coming out of their hands. And they’re shouting, “Harold! Harold!” And I realized they’re – I’m their lawyer, I’ve got to get them out.
NARRATION: As the case dragged on, the government rejected most of the refugees’ asylum requests, and sent them back to Haiti. The few whose claims were seen as credible were allowed to go to the US to apply for asylum. But some of those expecting to go found out they were being held back.
MARIE GENARD: Everybody have a T number. I think mine is T1246. When your number is called they put you in a chopper to bring you to the states. Every day they come with a list, they call out numbers, your number never called… until all the camps were closed. So that’s when we find out, all the remaining people were HIV positive. And unfortunately, my dad was one of those.
They have been cleared to enter the US, but are stuck here because of a US ban on HIV infected immigrants.
NARRATION: Because of that policy, more than 200 HIV positive refugees and their families were told they could be stuck at Gitmo indefinitely – for 10, or 20 years – or even until a cure for AIDS was found.
HAROLD KOH: It’s a death trap. They’re being held there even though they have legitimate asylum claims, but because they’re sick. And what we tried to do was emphasize how crazy it was to do this. You know, that our government would be holding people all of a particular race and national origin, who are all sick in a particular way, instead of treating them, like the refugees they were.
ARCHIVAL (CBS, 11-27-91):
These Haitian refugees have reached a way station on what so far has been a journey to nowhere.
NARRATION: The government insisted the refugees were not being mistreated. But another year would go by for the Haitians at Guantanamo.
MARIE GENARD: People were getting aggressive because of the unknown. They would throw rocks at the MP’s. They would put you, one would call solitary confinements. People were having hunger strikes. It was us against them.
NARRATION: In court, the government’s attorneys were painting a different picture.
BOB BEGLEITER: I was told that it wasn’t perfect, but it was, it was decent, that there was good sanitation. They were provided adequate sustenance and shelter.
NARRATION: Then, the team from Yale discovered new evidence.
HAROLD KOH: We got a series of videotapes. And one of them showed this amazing scene where the US Military came into the camp and suppressed an uprising among the Haitians by physically mauling them, dragging them around. Remember, these are not criminals, these are refugees.
MARIE GENARD: They have those white type of handcuff, where they would tighten them really tight. A lot of people sometime would be on the floor with their hands and feet handcuffed and taken away.
HAROLD KOH: And suddenly it became clear that the benign picture that was being painted was just false. The judge was watching this with, you know, stunned.
STERLING JOHNSON (HON. STERLING JOHNSON JR. U.S. DISTRICT JUDGE, EASTERN DISTRICT OF NEW YORK): Oh, I thought it was horrible, you know. These people had not even been charged with a crime, but they were treated worse than criminals.
NARRATION: Judge Sterling Johnson, Jr. presided over the trial.
STERLING JOHNSON: How can you take a human being, take him into custody, tell a court that I’m going to do whatever I want to do with you, and to the court there’s nothing you can do about it because it didn’t happen in the territorial confines of the United States, it’s in Cuba. Our Constitution says that if you are in custody by American authorities you have rights.
NARRATION: Judge Johnson ruled that the Haitians should be released from Gitmo, and that the laws of the United States did apply there.
Within days, all of the remaining Haitians left for the US.
MARIE GENARD: All this time, we thought we were alone. We were not alone. We had people who wanted us here. We had people who was fighting for us.
HAROLD KOH: We won and the Haitians came in to New York under the court order. My co-counsel, Michael Ratner and I were standing at LaGuardia, and we’re in the terminal and I said to him, ‘you know, the law made this happen.’
NARRATION: The Haitians were free, but Judge Johnson’s ruling was in jeopardy. The government continued to argue that US laws should not apply at Guantanamo and threatened to appeal up to the Supreme Court – which had ruled against the Haitians in a related case – unless Koh agreed to a deal.
ARUN RATH: Getting these Haitians off of Guantanamo, it came with a price.
HAROLD KOH: The ruling in our favor by the judge, the court order said, alien detainees on Guantanamo have constitutional rights. And they said, you’re going to have to agree that that opinion should be taken off the books.
NARRATION: Koh felt he had no choice. He took the deal with the government. Judge Johnson’s decision would not become legal precedent.
BRANDT GOLDSTEIN: Given the situation they were presented with they chose the wisest course. Because better to have no precedent and live to fight another day than to find that the court has decided against you at the highest level. Which is to say, you have almost nowhere to go.
NARRATION: Guantanamo would remain in legal limbo, leaving the door open for it to be used as a detention center outside the reach of US law.
ARCHIVAL (ABC, 1-10-02):
Prisoners are being flown from Afghanistan to the American Naval Base at Guantanamo Bay Cuba.
TITLE CARD: After 9/11, the Bush Administration noted the Haitians’ case in its argument for holding terror suspects at Guantanamo.
TITLE CARD: Starting in 2004, the Supreme Court granted detainees limited constitutional protections, including the right to a lawyer.