In this issue of the Yale Alumni Magazine, Brandt Goldstein '92JD tells how Harold Hongju Koh, then a Yale law professor and now dean of the Yale Law School, became involved in what has since become one of the most controversial legal questions in the country: the rights of detainees at the U.S. Naval Station at Guantanamo Bay, Cuba. In 1992, the detainees were Haitian refugees, and the case brought on their behalf by Koh and "Team Haiti" -- several established attorneys and a crew of dedicated law students -- was the first litigation on the legal status of Guantanamo.
Goldstein's article, "Mission to Guantanamo," ends with an exchange in which Koh asks, "What do we do now?" Goldstein's forthcoming book, Storming the Court, provides the answer. But for those who are curious, here is the legal denouement -- and an update from the book's central figure.
Part of the case eventually went to the Supreme Court. There Koh argued that, just as the U.S. government cannot by law send back refugees in this country who would be persecuted in their home country, neither could it intercept and send home Haitians as they were crossing the Atlantic to escape persecution. He lost. But Team Haiti won on another part of the case, when the federal court of appeals for the Second Circuit decided that the Haitians at Guantanamo were entitled to assert some due process rights under U.S. law.
That decision was the opening move in a murky, still unresolved body of law on whether the U.S. Constitution applies in a place that is not on U.S. soil but is run by the U.S. military. In 2004, the Supreme Court ruled that the detainees have a procedural right to challenge their detention under habeas corpus. But the lower courts are still debating the scope of the detainees' rights. (A Yale law clinic has worked on some 20 briefs in these matters over the past three years.)
To Koh, the fundamental question of Guantanamo is: "Are there lands without law?" He argues, "If the United States can go offshore to create a place where detainees have no rights, then why shouldn't the Russians do the same with the Chechens, or the Indonesians with the Acehnese? Human rights are intended to be universal. The strength of the concept is that there are no exceptions."
In our post-9/11 nation, when those detained on Guantanamo are people the government suspects of having connections to Al Qaeda, arguments like these are controversial. Many Americans agree with Justice Antonin Scalia that Guantanamo is a military necessity and off limits to legal interference. "Today's opinion," he wrote in his dissent to the 2004 decision, "extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts."
Koh argues that the United States has been and should remain an exceptional leader on human rights. "The U.S. was a victim of human rights abuse in 9/11," he says, "but by creating the situation on Guantanamo we made our own human rights conduct the focus of international criticism." He is comfortable pushing the country on this issue. Even his office shows the influence. When Koh moved in as dean, he took down a portrait -- one of the patriarchs who decorate so many walls at Yale -- and put up a painting of the Amistad. 