YLS Sale Symposium: Haitian Democracy, the Sale Decision and Haitian Refugees

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre–Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned.

Litigation ensued for the next 90 days. A remarkable sitting district court judge, C. Clyde Atkins, heard the matter. Judge Atkins had been sitting in Miami for many years. He was one of the most courageous judges in the district, and his accomplishments included ordering the desegregation of  the public school in South Florida. He was unintimidated when Kenneth Starr walked into the courtroom stating he was requested to be there on behalf of the President of the United States as the Solicitor General. Apparently it was only the third time in U.S. history that a Solicitor General had appeared in a United States District Court to argue a case. Nevertheless, Atkins ruled against the government and issued a preliminary injunction preventing Haitians from being forcibly returned to Haiti.

The government was at a loss on how to treat the Haitians at that point. They began to construct camps on Guantanamo. Thousands of Haitians who were sitting on Coast Guard cutters or one giant troop transport, were taken to the newly constructed camps on Guantanamo. We were the first lawyers to set foot in the camps and we took substantial discovery of their asylum claims as well as the testimony of the officers who were interviewing them. At first the approval ratings for Haitian asylum seekers on Guantanamo was very low. An approval meant that an applicant could go to the U.S. and the Bush Administration did not want Haitians in the country.

Over the next 90 days, however, Judge Atkins would issue a variety of injunctions. Although the injunctions would be overturned by the Eleventh Circuit Court of Appeals,  the asylum approval rates skyrocketed.  Due to the public focus on the government’s conduct and the poor publicity and public condemnation the government was receiving, the rate of approvals for asylum on Guantanamo went from less than 10% to over 70%.

Eventually, in a bizarre legal scenario, which in my view included gross misrepresentation before the Supreme Court, including the submission by Solicitor General Starr of an affidavit from a Assistant Secretary of Defense who was appointed for two hours solely to sign the affidavit, the government convinced the Supreme Court to lift all injunctions and allow the government to forcibly return Haitians. However, by that point, most of the Haitians on Guantanamo had been taken to the U.S. as asylum applicants.

In May, 1992, George W. Bush, entered an order from his retreat in Kennebunkport, Maine that gave the U.S. imperial power to summarily return anyone it intercepted on the high seas in the President’s sole discretion. In effect, the Kennebunkport Order, as it became known, undermined the 1981 interdiction agreement between Haiti and the U.S. that, at a minimum, provided some protections for Haitians and others seeking asylum. The political decision of a man who would be out of the White House in a year, led to the unthinkable consequences of Sale.

One might ask with some astonishment how eight justices of the highest court in the United States could believe that as long as refugees had not touched the shores of the United States they were fair game to be tortured or executed. Could we just shoot them down in the water if the Refugee Act does not apply? And indeed, stories emanating from the second coup against Aristide suggest that is exactly what happened in the chaotic hours following the Feb. 29, 2004 coup.

There were reports that people seeking to escape by boat from the advancing paramilitary organizations led by Jodel Chamblain, the DIA asset and former head of FRAPH, were shot as they tried to board boats. There were reports of U.S Coast Guard cutters literally ringing Haiti and U.S. vessels blocking Haitian waters to prevent fleeing refugees from getting on boats out of the country. There was no longer any subtlety on how to treat refugees. Just prevent them from ever leaving; or throw them back if they got out. A group of Lavalas militants attacked the Haitian Coast Guard base forcing the boats to go to sea and the New York Times reported that the US viewed it as “a clear effort to shut down the repatriation” of Haitians who might flee. The U.S. then “dispatched extra Coast Guard resources to Haiti and readied its Guantanamo holding pens for another exercise in humanitarian intervention” and “it’s clear that someone, somewhere, gave Chamblain, Philippe and their associates strict instructions regarding political decorum: in the short term, hundreds of low-profile killings would certainly be acceptable, but perhaps not thousands, or a least not all at once.”  Hallward, supra at 230-31. Although numerous refugee groups by mid-March, 2004 sent a request to the Executive Secretary of the Inter-American Commission on Human Rights to take precautionary measures on behalf of Haitian refugees who were being forcibly repatriated to Haiti, Sale provided the legal cover to violate the refugees’ basic human rights and repatriation continued.