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The hunger strike last year by some al-Qaeda and Taliban suspects detained at Guantánamo Bay, Cuba, is an echo of an earlier hunger strike by Haitian refugees, also detained indefinitely at Guantánamo. The Haitian refugees had fled the dictatorship that overthrew the elected government of Jean-Bertrand Aristide in 1991. In both instances the Supreme Court handed down decisions, although there is significant tension between the Court’s views of the two cases. The issue is still with us: Three days before John Roberts Jr. was nominated to the Supreme Court, he voted in Hamdan v. Rumsfeld to uphold the right of the president to try the chauffeur of Osama bin Laden before a military commission at Guantánamo. The Supreme Court recently granted certiorari in the chauffeur’s case, with now-Chief Justice Roberts not participating. In Storming the Court, Brandt Goldstein has written a breathless narrative of the public interest “impact” lawsuit that a ragtag group of Yale law students filed in 1992 to free the Haitians. His account is interesting both as a backdrop to today’s situation at Guantánamo and because he gives a near-perfect portrait of Harold Koh, the son of Korean refugees who is now the dean of Yale Law School. Haiti lies across the Windward Passage from Guantánamo Bay. After the 1991 coup, the military imposed a reign of terror, and tens of thousands of Haitians fled in small, leaky boats. The Coast Guard intercepted 36,000 Haitians on the high seas and took them to Guantánamo Bay, where, without benefit of counsel, they were “screened” to determine whether they were entitled to seek asylum in the United States. Most were eventually returned to Haiti. In May 1992, President George H.W. Bush issued the “Kennebunkport” order, directing the Coast Guard to return the refugees to Haiti without screening. (The law students first named the order “Kennebunkport” after the president’s location in Maine, where he was vacationing when he issued it.) Although Bill Clinton said he was “appalled” by the order and that the Haitians should be given “temporary asylum,” once the presidential shoe was on his foot, he changed his mind and continued the order. Goldstein focuses on Koh’s role in leading the students. When another Korean-American asked Koh why he was helping Haitians “instead of helping us,” Koh, thinking of the discrimination against Asian immigrants, replied, “They are us.” Goldstein captures Koh’s personality, and it’s the strongest part of his book. The law students challenged the order on the grounds that both U.S. law and the United Nations Protocol on Refugees prohibited the summary return of the Haitians to Haiti. Koh argued the case in the Supreme Court, where he had clerked for Justice Harry Blackmun, and at the end of the day only Blackmun accepted his arguments. The other justices upheld the Kennebunkport order, saying that neither our domestic immigration law nor the United Nations Protocol was binding on the government outside the territory of the United States. The law students also challenged the living conditions and medical treatment of about 200 HIV-positive refugees. In June 1993, after the HIV-positive Haitians began a hunger strike, the federal court ordered them released “to anywhere but Haiti.” The Clinton administration threw in the towel and brought them to the United States. The book’s subtitle, How a Band of Yale Law Students Sued the President — and Won, is an overstatement: The students and Koh certainly lost their Supreme Court case. While they won for the HIV-positive refugees, these were few in number compared with those returned to Haiti. Still, Storming the Court teaches one lesson clearly, though no doubt unintentionally: that so-called impact litigation by public interest lawyers may not always be a useful response to a human and political problem. Nothing shows this better than Clinton’s about-face on the Kennebunkport order after his election, when the Coast Guard began asking what it was he wanted done with thousands of Haitians in leaky boats with little chance of making it 700 miles to Florida. The law students in his position might have made the same decision.
James Dabney Miller is a partner at King & Spalding in Washington, D.C.

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