A Land Without Law

Summary

Criminal Podcast Episode Summary: "A Land Without Law"

Release Date: October 4, 2024
Host: Phoebe Judge
Network: Vox Media Podcast Network

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Introduction

"A Land Without Law" delves into the harrowing experiences of Marie Gennard, a Haitian refugee who, along with her father, was detained at Guantanamo Bay in the early 1990s. The episode intertwines personal narratives with legal battles, highlighting systemic flaws in U.S. immigration policies and the resilience of individuals seeking asylum.

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Marie Gennard’s Early Life in Haiti

Marie Gennard introduces her background, providing context to her family's life under the oppressive regime of Jean Claude Duvalier, known as Baby Doc. Born in a strict household, Marie recounts the pervasive fear instilled by the Duvalier dictatorship, marked by rampant violence and human rights abuses.

• Marie Gennard [02:17]:
  “I didn’t know my mom very well. She left me when I was three months old.”

The Duvalier regime's brutality is underscored, with over 30,000 murders ordered by Duvalier's secret police, the Tonton Macoutes.

• Narrator [03:24]:
  “Francois Duvalier, or Papadoc, was known for ordering Haiti's secret police to commit over 30,000 murders.”

Marie describes the escalating protests against Baby Doc, leading to a weakened regime fraught with violence and repression. The political unrest profoundly affected her family, pushing her father into local politics.

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Escape from Haiti and Detention at Guantanamo

In response to the violent coup against President Aristide in 1991, Marie and her family fled Haiti by boat, seeking refuge in the United States. Their journey was fraught with peril, culminating in their interception by the U.S. Coast Guard and subsequent detention at Guantanamo Bay.

• Marie Gennard [07:56]:
  “It was still dark and we got so sick. We... I was sick, my stepmom was sick, my brothers, we all was like sick.”

Upon arrival, detainees were subjected to dehumanizing procedures, including being assigned numbers and stripped of personal identities.

• Marie Gennard [17:47]:
  “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 through everybody else, I was T1286.”

Marie and her father believed their political affiliations would secure them asylum, but the harsh realities of Guantanamo quickly dispelled these hopes. Conditions deteriorated further when Marie’s father tested positive for HIV, leading to their segregation in Camp Bulkholy.

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Legal Battle Led by Harold Koh and Yale Law Students

Harold Koh, a Yale Law School professor, alongside dedicated students, initiated a legal challenge against the U.S. government's treatment of Haitian detainees at Guantanamo. Their mission was to ensure that detainees received due process and weren't arbitrarily returned to a perilous homeland.

• Harold Koh [12:06]:
  “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 legal team faced significant obstacles, including governmental dismissiveness and procedural challenges. Despite these, Koh and his students persevered, driven by a commitment to justice and inspired by his father's own experiences with political exile.

• Harold Koh [13:39]:
  “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?”

Their efforts culminated in courtroom battles that exposed the systemic neglect and abuses within the detention system. The pivotal moment came when evidence of inadequate medical care for HIV-positive detainees was revealed, turning the tide in their favor.

• Brandt Goldstein [51:29]:
  “The government knew the medical care for the detainees with HIV/AIDS was inadequate.”

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Courtroom Struggles and Setbacks

Despite initial successes, the legal team encountered formidable resistance from the U.S. Department of Justice. The government’s relentless appeals to the Supreme Court initially thwarted their efforts, leading to increased frustration and urgency within the legal battle.

• Harold Koh [36:08]:
  “A stay, 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.”

The Supreme Court's decisions often appeared to side with governmental authority, limiting the legal team's capacity to effectuate meaningful change.

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Climactic Victory and Its Aftermath

In June 1993, a significant breakthrough occurred when Judge Sterling Johnson Jr. ruled that constitutional rights do apply to detainees at Guantanamo Bay, compelling the government to release them or provide proper asylum procedures.

• Harold Koh [52:53]:
  “We will release the 235 HIV positive Haitians if you agree to vacate the precedent that aliens on Guantanamo have due process rights.”

However, to protect future legal precedents, Koh made the difficult decision to accept the government's offer, resulting in the release of the detainees but without establishing a lasting legal safeguard.

• Harold Koh [53:36]:
  “They brought them out a couple weeks later on one plane...we would vacate the precedent that aliens on Guantanamo have due process rights.”

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Marie Gennard’s Journey to the United States

After enduring detention, Marie was placed with a foster family in Michigan. The transition was challenging due to language barriers and cultural differences, but support from her foster mother played a crucial role in her adaptation.

• Marie Gennard [48:46]:
  “If they ask a question, just tell the, you know, tell. Tell the truth, really.”

Marie overcame significant personal trauma, including experiences of molestation, and eventually embraced a new life in the United States. Her story underscores themes of resilience, adaptation, and the enduring impact of past traumas.

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Reflections on Guantanamo and U.S. Immigration Policy

Harold Koh reflects on the reopening of Guantanamo Bay post-9/11, lamenting the recurring mistakes in U.S. immigration and detention policies. He criticizes the lack of an exit strategy and the cyclical nature of using Guantanamo as a solution to immigration crises.

• Harold Koh [56:14]:
  “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.”

Koh emphasizes the importance of learning from past injustices to prevent the perpetuation of similar human rights violations.

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Current Implications and Ongoing Issues

The episode concludes by drawing parallels between the historical events discussed and contemporary issues concerning Haitian refugees and U.S. immigration policies. The enduring legacy of the "direct return order" highlights persistent challenges in providing humane and just treatment for asylum seekers.

• Marie Gennard [56:02]:
  “It's still there. So I guess that's who we are.”

Marie’s personal journey from a persecuted child in Haiti to an integrated member of American society serves as a testament to the complexities and enduring impacts of immigration policies.

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Conclusion

"A Land Without Law" offers a poignant exploration of the interplay between personal resilience and systemic injustice. Through Marie Gennard's story and the legal tenacity of Harold Koh and his students, the episode underscores the critical importance of advocacy, legal intervention, and compassionate immigration policies in safeguarding human rights.

Notable Quotes:

• Marie Gennard [35:15]:
  “If you don't pay the price.”

• Harold Koh [53:39]:
  “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.”

• Marie Gennard [47:48]:
  “I didn't want to be there anymore. I was molested. I didn't want to be there.”

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Additional Resources

For those interested in delving deeper into this story, Brandt Goldstein's book "Storming the Camp: How a Band of Law Students Fought the President and Won" provides an in-depth account of the legal battles depicted in the episode.

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This summary captures the essence of "A Land Without Law," highlighting key moments, personal testimonies, and the broader socio-political implications of the events discussed.

Transcript

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Support for Criminal comes from Framed John Grisham teams up with innocence advocate Jim McCloskey in their New York Times bestseller framed 10 True Stories of Innocent People Framed for Murder. In Framed, you'll read about the incompetence, corruption and racism that contribute to wrongful convictions. And you'll be able to hear real people's stories as they fought for freedom against the odds. Read Framed by John Grisham and Jim McCluskey in stores now. Also available as an audiobook.

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[Narrator]

This episode contains descriptions of violence. Please use discretion. Tell me about your father.

[Marie Gennard]

Well, his name was Antoine Francois, but the funny thing is because in Haiti people always have nicknames. So for the longest we thought our dad's name was Louis Neiss, but he goes by the name of Francique. He was strict. He was very, very strict. My only job, my dad would tell me, your only duty is to go to school.

[Narrator]

Marie Gennard's father grew up in the Dominican Republic. He moved to Haiti as a teenager. Then he met Marie's mother.

[Marie Gennard]

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. So I was the only kids around for a long time, and my grandma pretty much raised me with my dad.

[Narrator]

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.

[Marie Gennard]

A dictatorship. It's what he was, you know you were told what to do, when to do it. I remember being, you know, told time to go to bed. Like, people could not be out on the streets and stuff like that.

[Narrator]

Francois Duvalier, or Papadoc, was known for ordering Haiti's secret police to commit over 30,000 murders.

[Marie Gennard]

Miniciens, it's what they call them. And they wear like, navy blue uniforms.

[Narrator]

They were officially called the Tonton 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 with machine guns to patrol the streets. But protests kept happening. Entire cities came together and refused to go to work. 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. Protesters passed out flyers for, quote, Operation Uproot.

[Marie Gennard]

I remember it, you know, quite vividly. I was only nine years old, about to be nine years old.

[Narrator]

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. And then he fled the country. Marie remembers seeing people retaliating against anyone who was part of Baby Doc's regime.

[Marie Gennard]

People were out on the street beheading those people where 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 that would get them from their house, drag them out to the street. 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. So the best way to do it was to put tires around them and set them on fire with gasoline, burning them alive.

[Narrator]

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

[Marie Gennard]

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.

[Narrator]

He joined a group in their neighborhood supporting a new political movement called Lavalas, the Haitian Creole word for flood. And Avalanche. Then the Lavalovs backed candidate won Haiti's first free democratic election. His name was Jean Bertrand Aristide and he was a Catholic priest.

[Marie Gennard]

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?

[Narrator]

President Aristide was inaugurated in February 1991. Marie remembers her father got bigger roles in the Lava Lavs 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. There were reports that people could be arrested, tortured or killed. For as little as looking at a photo of the former president, all I.

[Marie Gennard]

Know when the coup happened, my dad went and hiding. They were hunting anybody who's in the Lavalas party. So I was sent to my grandmother who live in a little town called Zima, which is a little bit far out in the country really. Nobody would have any business going over there. And my dad was in hiding. So I stayed there for a while until one day my dad sent for me.

[Narrator]

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.

[Marie Gennard]

It was still dark and we got so sick. We. I was sick, my stepmom was sick, my brothers, we all was like sick. We were seasick. Till this day, I can't get in the ocean.

[Narrator]

They were on an oversized fishing boat.

[Marie Gennard]

You know, it's a handmade boat. It wasn't, you know, and you use pedal, you know, you pedal the boat. There was no mortar or anything like that.

[Narrator]

And how many people were on the boat with you?

[Marie Gennard]

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. And when we got there and we couldn't go any further for whatever reason, we ended up having to head back. And when we head back, my stepmom said, I ain't doing this again, you know. So we stayed in hiding for about a week and we got back again.

[Narrator]

This time just Marie and her father got on the boat.

[Marie Gennard]

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 going to perish, we're going to perish together. I would not. I would not wish this, you know, up on 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.

[Narrator]

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.

[Marie Gennard]

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 the worst, you know, being burned alive. And the only thing I could think of is if you're gonna die, die in your own term. And we used to own 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 gonna go, I think that's the way he would want to go.

[Narrator]

Then they were approached by another boat. It was the U.S. coast Guard. Tell me about what happened when the boat was intercepted.

[Marie Gennard]

So when the boat was intercepted, you know, got into this huge vessel. I thought it was a house on the, 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. They issued us an ID with a number. Everybody was interviews, families stays together. I think we spent maybe three days on the boats in the Coast Guard through grapevine you hear you were not.

[Narrator]

Going to the U.S. finally Marie found out where they were going.

[Marie Gennard]

They say we were going to Cuba. Guantanamo Bay, Cuba.

[Narrator]

I'm Phoebe Judge. This is criminal. In 1991, thousands of people on boats from Haiti were intercepted by the U.S. coast Guard.

[Harold Koh]

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. They never got any closer to the United States. This is Harold Hongju Ko from Yale Law School studio. I just finished today, my 39th year of teaching.

[Narrator]

That's a really long time.

[Harold Koh]

I was a young man when I began.

[Narrator]

As a young professor. Harold Coe 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.

[Harold Koh]

And they asked me whether we would bring a lawsuit against the US Government.

[Narrator]

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.

[Harold Koh]

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 US Government with a bunch of kids. Yeah, crazy. Insane. Insane. But they weren't members of the bar. If I didn't file and I didn't sign the pleadings, there was no lawsuit.

[Narrator]

So he said, okay, I thought we.

[Harold Koh]

Should at least start drafting papers and see what they looked like.

[Narrator]

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.

[Harold Koh]

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? 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.

[Narrator]

Harold's father, Kwang Lim Ko, had been a law professor too.

[Harold Koh]

He was the first Korean from his island, Jeju island, ever to study law in Seoul, which is an amazing accomplishment. And then the first student from Seoul ever to study law in America.

[Narrator]

He was accepted to Harvard Law School and became the US Ambassador for a new democratic government of South Korea, established after mass student protests.

[Harold Koh]

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

[Narrator]

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.

[Harold Koh]

60 people signed the pledge within a year or two later. The only one who kept the pledge was my father.

[Narrator]

The leader of the coup would stay in power for almost 20 years. A US national security official helped Harold's father get a job.

[Harold Koh]

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. And one week later, my family, six children, parents each carrying one suitcase, we came to New Haven.

[Narrator]

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?

[Harold Koh]

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

[Narrator]

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?

[Harold Koh]

At the time, I knew two things. That there was a song called Guantanamira about the girl from Guantanamo. And I knew the movie A Few Good Men where Tom Cruise plays a Navy drag officer defending some people who were charged with executing a Code Red on the Guantanamo Naval base. That's all I knew.

[Narrator]

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

[Marie Gennard]

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. And tested for what? The people were getting tested to see if you're sick, for whatever disease that you may have.

[Narrator]

Marie, who was 14 at the time, remembers they were assigned numbers.

[Marie Gennard]

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 through everybody else, I was T1286.

[Narrator]

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

[Marie Gennard]

Scrawny little kids, no smile. I have a baseball cap in my head. My hair was disheveled. I mean, it's just. I wish I was that size again, though. Fuss. But a scary looking kid. I looked like I was afraid for my life.

[Narrator]

Maria's father told her she might be interviewed about why they left.

[Marie Gennard]

If they ask a question, just tell the, you know, tell. Tell the truth, really.

[Narrator]

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.

[Harold Koh]

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. 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. So if the question was, are you fleeing from political persecution because you're a member of Lavalas and a supporter of President Aristide, that should be sufficient for you to get an asylum interview. But often they're 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.

[Marie Gennard]

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.

[Narrator]

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 La Velovs party.

[Marie Gennard]

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.

[Narrator]

Marie says that at Guantanamo they were fed packaged military meals.

[Marie Gennard]

My favorite was the omelets with the hot sauce, Tabasco sauce in it.

[Narrator]

They slept on cots and assigned tents.

[Marie Gennard]

It was a massive camp. Tents after tent, green tents. You 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. Camp seven was, was the jail camp is what I call it. I was in Camp 3. Camp 3 was mostly families, people who have adults, who have children. So it was family camp.

[Narrator]

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 Bulkholy.

[Harold Koh]

We learned that they had segregated a group of about 250 Haitians who all had clear asylum cases. They were fleeing from political persecution, but they had also contracted the HIV virus. I thought the US government was out of its mind.

[Narrator]

We'll be right back.

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[Harold Koh]

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. 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. And so that group of people who we call the HIV positive became our most dramatic concern.

[Narrator]

Harold Koh and the Yale law students asked U.S. immigration for access to the detained Haitians at Guantanamo, but didn't hear back.

[Harold Koh]

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. 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. 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?

[Narrator]

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.

[Harold Koh]

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.

[Narrator]

What do you mean, spun the wheel of fortune? What is that?

[Harold Koh]

Yeah, that's how you get your judge. They literally spin a wheel.

[Narrator]

Is this a common practice, this wheel?

[Harold Koh]

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.

[Narrator]

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.

[Harold Koh]

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. He had been a police officer, but also in his time, he had been a military guard on Guantanamo.

[Narrator]

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.

[Harold Koh]

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

[Brandt Goldstein]

The government lawyers took the position that the students in CO had no idea what they were talking about.

[Narrator]

Author and law professor Brant Goldstein.

[Brandt Goldstein]

This case should be dismissed immediately. The US Constitution does not apply to Guantanamo. No other federal law applies to Guantanamo. 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.

[Harold Koh]

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. 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.

[Narrator]

So what happened?

[Harold Koh]

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. 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.

[Narrator]

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.

[Harold Koh]

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

[Narrator]

They tried to challenge the government motion.

[Harold Koh]

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 this is not just play acting and suing the government anymore. This is for real.

[Narrator]

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.

[Harold Koh]

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 maitre d station. So they set me up. I called the judge, and as I'm arguing, people are coming up and trying to get their table to sit down at the restaurant. And I thought I was sort of waving them away, but I didn't want to acknowledge that I was even having these other people around me. 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, after.

[Narrator]

They got the temporary restraining order, the students flew to Guantanamo on a military plane from a base in South Carolina.

[Harold Koh]

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? What's in it for you? What are your chances of success?

[Narrator]

Harold Ko didn't visit himself until much later. He remembers leaving on a tiny propeller driven plane.

[Harold Koh]

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.

[Narrator]

Some of the Haitian detainees were gathered inside.

[Harold Koh]

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, 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. 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.

[Narrator]

Harold asked the soldiers to take him to the camp where they were being held.

[Harold Koh]

There was this barbed wire. It was a prison camp, it wasn't a refugee camp. 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. 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. And suddenly about 4 or 5 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, harold, Harold. 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, at this point, all of them are screaming at the top of their lungs, Harold. 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.

[Narrator]

It was worse than you could have imagined.

[Harold Koh]

Well, telling you 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.

[Narrator]

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.

[Harold Koh]

No president wants to look like they can't control immigration.

[Narrator]

The Justice Department appealed Judge Johnson's order. The case made its way to the Supreme Court.

[Harold Koh]

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 25 to 30 times in about a year and a half. I probably stayed up all night working on briefs.

[Narrator]

Fifty times the Justice Department applied for.

[Brandt Goldstein]

A stay, 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.

[Narrator]

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 Ko and his students wouldn't be allowed to investigate asylum hearings in person anymore.

[Brandt Goldstein]

And that was it. Cohen, the students had, and the other human rights had no access to Guantanamo.

[Narrator]

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

[Brandt Goldstein]

They sent back as many people as they possibly could. Boom, boom, boom, boom, boom. It started at 6am Then President Bush.

[Narrator]

Decided to make another move. From his vacation home in Kennebunkport, Maine.

[Brandt Goldstein]

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.

[Harold Koh]

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

[Narrator]

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.

[Harold Koh]

Now, you have to remember this was just after the Berlin Wall had been knocked down. This was essentially a floating Berlin Wall. You know, people were trying to flee from persecution, and they were picking them up on boats and bringing them back. 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. So we called it the Kennebunkport Order because, you know, something issued from someone's vacation home essentially spelled doom for many, many people.

[Narrator]

They had expedited the decisions for the people waiting at Guantanamo. And soon there were very few people left. Marie Gennard was still there with her father.

[Marie Gennard]

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

[Narrator]

She says that conditions improved. They were sleeping under roofs instead of tents. What was your day to day like?

[Marie Gennard]

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 11:00, you know, 10:00, we would be done. We used to play cards and dominoes from like, I don't know, from anywhere from 2:00 to 5:00 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.

[Narrator]

Wow, that's quite a choice for a 13 year old.

[Marie Gennard]

Yes.

[Narrator]

Sometimes, she says they were allowed to watch Terminator 2 Judgment Day.

[Marie Gennard]

There's no school, no education, no nothing. And you just sleep and do it again the next day.

[Narrator]

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.

[Marie Gennard]

And a lot of us, myself and all the kids, we resented our parents.

[Narrator]

I mean, you were so young. Were you talking to the other kids about how your parents had tested positive for hiv?

[Marie Gennard]

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, yeah, we're not really HIV positive. It's a lie. 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. So they were like, yeah, it's probably a ploy just to make sure, like, even though we are, we are qualified, 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 are, we have aids. Um, I think, I think until the day my dad Died. He was in denial that he was HIV positive.

[Narrator]

Some of the asylum seekers were getting sicker. The doctors at the camp said they asked US 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. She has not to be named. Here she is speaking in an Amnesty International news conference.

[Unnamed Protester]

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 humans. And I started a hunger strike. 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.

[Marie Gennard]

It would get violent sometimes. A few times I remember us getting really violent out there. They used to do those pee bomb, I guess you would call it that would, you know, because we didn't, you know, we have buckets. That's what we had to pee on at night time. Because nobody. You're not going to get up and go to the portal potty. So people would have those bucket, fill it with pee and then create a pee bomb to throw at the militaries when it get bad.

[Narrator]

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. US immigration had given the parents in the camp an option to give up custody of their children and have them sent to the US alone. We'll be right back.

[Marie Gennard]

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[Marie Gennard]

See for yourself at botoxcosmetic.com.

[Narrator]

Support for criminal comes From Framed if you're looking for a true crime, must read, there's a new one that comes from none other than John Grisham. It's called Framed and it's his latest New York Times bestseller. Grisham's real life passion for justice led to his work with Jim McCluskey of Centurion Ministries, an organization dedicated to exonerating innocent people. In Framed 10 True Stories of Innocent People Framed for Murder, you'll read about the racism, flawed testimony and corruption that contributes to wrongful convictions and why those convictions are so difficult to reverse. It's stories about real people and their fight for freedom against all odds. Read Framed by John Grisham and Jim McCluskey in stores now. Also available as an audiobook. Marie Gennard 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 US without him.

[Marie Gennard]

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 U.S. 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. They were like, if we hold on, eventually they would have to get like, we come in as a unit, we want to go as a unit. 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 sign the paperwork, his consent toward me to the court.

[Narrator]

Did you want him to let you.

[Marie Gennard]

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 paperwork for me to send me then release the consent for me to go back to Haiti. I didn't want to be there. 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. 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.

[Narrator]

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

[Marie Gennard]

I was super excited, super, super excited. I have. I got called. I went to the processing center. At that processing center, usually you there for a couple of days, and then they call your number again. 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 on a halfway house and then await your final destination of wherever your foster parents is located. 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? This is not gonna happen. About a week later, they called my number again. So this time I actually ended up went through.

[Narrator]

On March 19, 1993, Marie was placed with a foster mother in Michigan.

[Marie Gennard]

I had just turned 16, and I didn't speak any English first.

[Narrator]

She only knew a couple of curse words. No one spoke 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. And she got a call from her father once a week. Harold Ko 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?

[Harold Koh]

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

[Narrator]

Each year, the US government would send Cuba a rent check for $4,085. But Cuba refused to cash them, saying the lease wasn't legitimate.

[Harold Koh]

So we just pointed out that it's essentially an American enclave. The US Flag is the only flag that flies there. The only law that applies. There is US law. It looks like middle America. There's McDonald's, there's a shopping mall. And the only thing that doesn't apply is the US Constitution according to them, which meant that they could do with these people what they wanted. If that were true, they could discriminate against people based on their race. They could prevent them from worshiping the God of their choice. They could force pregnant women to have abortions against their consent. And then we found out that iguanas are protected by U.S. environmental law on Guantanamo. So iguanas have rights, but not human beings.

[Narrator]

One of the government lawyers admitted in court that the government knew the medical care for the detainees with HIVAIDS was inadequate. Brandt Goldstein says this was a turning point.

[Brandt Goldstein]

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

[Narrator]

Then one of the lawyers working with Harold Ko, Joe Tringalli, 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 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. 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.

[Harold Koh]

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. 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. 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.

[Narrator]

Went to LaGuardia Airport to meet them.

[Harold Koh]

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. And he points to the barcoded bracelet and he said, this is not my name. And then he holds up the piece of paper, said, this is my name. This is my name. And there are a couple of letters off. It was spelled wrong. 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 change his name, he'd have no legal entitlement to be here. 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.

[Narrator]

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. 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.

[Brandt Goldstein]

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. It's a pretty unpersuasive reading of the law. But the justices were evidently worried about tying the President's hands beyond US borders. So the refugees that were held on Guantanamo, the last few hundred, are allowed into the country, but the direct return order remains.

[Narrator]

The prison we know as Guantanamo today was open The Year After 911 by President George W. Bush. Well, what threw your mind when Guantanamo reopened in 2002?

[Harold Koh]

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. 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. So it Is, you know, Obama said in any number of speeches, is this who we are? Is this who we are?

[Narrator]

There are 30 men still incarcerated there today.

[Harold Koh]

It's still there. So I guess that's who we are.

[Marie Gennard]

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 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.

[Narrator]

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

[Marie Gennard]

I couldn't go back to my dad even if I wanted to, but I didn't want to.

[Narrator]

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.

[Marie Gennard]

We always kind of say, yeah, we were like, kind of destined because the March 19th that just passed mark our 31 year of being a family unit. So we was just joking about that. And I said, 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. I wouldn't be where I'm at today without my mom. That's hands down.

[Narrator]

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 led into the us. Some joined the US Military. One became a well known chef in New York. Harold Ko says he's attended some of their graduations.

[Harold Koh]

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 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? 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.

[Narrator]

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. Our producers are Susanna Roberson, Jackie Sajiko, Lily Clark, Lena Silason and Megan Kinane. Special thanks to Gabrielle Burbet, who helped produce this episode. To learn more about the story, check out Brandt Goldstein's book Storming the 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. Julian Alexander makes original illustrations for each episode of Criminal. You can see [e-mail] and you can sign up for our [e-mail] Newsletter 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. To learn more, go to thisiscriminal.com plus we're on Facebook and Twitter criminalshow and Instagram @ criminalpodcast. We're also on YouTube at YouTube.com criminal podcast criminal is part of the Vox Media Podcast Network. Discover more great [e-mail] media.com I'm Phoebe Judge. This is Criminal.

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