Storming the Court: How a Band of Law Students Fought the President--and Won

Storming the Court: How a Band of Law Students Fought the President--and Won

by Brandt Goldstein

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In 1992, three hundred innocent Haitian men, women, and children who had qualified for political asylum in the United States were detained at Guantánamo Bay, Cuba — and told they might never be freed. Charismatic democracy activist Yvonne Pascal and her fellow refugees had no contact with the outside world, no lawyers, and no hope . . . until a group of


In 1992, three hundred innocent Haitian men, women, and children who had qualified for political asylum in the United States were detained at Guantánamo Bay, Cuba — and told they might never be freed. Charismatic democracy activist Yvonne Pascal and her fellow refugees had no contact with the outside world, no lawyers, and no hope . . . until a group of inspired Yale Law School students vowed to free them.

Pitting the students and their untested professor Harold Koh against Kenneth Starr, the Justice Department, the Pentagon, and Presidents George H. W. Bush and Bill Clinton, this real-life legal thriller takes the reader from the halls of Yale and the federal courts of New York to the slums of Port-au-Prince and the windswept hills of Guantánamo Bay and ultimately to the U.S. Supreme Court. Written with grace and passion, Storming the Court captures the emotional highs and despairing lows of a legal education like no other — a high-stakes courtroom campaign against the White House in the name of the greatest of American values: freedom.

Editorial Reviews

From the Publisher
"Want to see how the law really works? Forget the nonsense David versus Goliath stories from every legal thriller. Here's the real thing." — Brad Meltzer, author of The Book of Fate and The First Counsel

"Brilliant. A compelling story that shows how the legal system can be used to achieve justice. Every law student should read this book." — Professor Erwin Chemerinsky, Duke Law School

"A gripping and psychologically insightful narrative . . . which combines constitutional drama, superb reporting, and shrewd insights from beginning to end." — Jeffrey Rosen, author of The Most Democratic Branch and The Unwanted Gaze

"Fast-paced . . . cinematic." — The Washington Post

"A timely and passionate account." — Publishers Weekly

"Riveting, masterfully told . . . Goldstein writes like a dream as he vividly brings the stories of the refugees and the lawyers alive." — Clara Bingham, coauthor of Class Action: The Landmark Case That Changed Sexual Harassment Law

"A revealing look at the legal system, a compelling human rights story, and an inspirational tale of dedicated people who refuse to accept the status quo." — Kirkus Reviews (starred review)

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Chapter One: The Coup

Port-au-Prince, September 28, 1991.

Antenor Joseph swept into KID headquarters, several men flanking him. The building's courtyard was packed, his wife and fellow democracy activist, Yvonne Pascal, wedged in among the nervous crowd. It was late afternoon, hot and still, with heavy clouds interrupting the sunshine.

"Tande! Tande!" he yelled. "Listen up! We think there's going to be a coup tonight! Everybody's got to leave!"

Yvonne's heart jumped. There was an explosion of protest in Creole.

"How do you know?" someone called out.

"Evans got the word," Antenor replied, his voice echoing off the walls. "There's no way to stop it now. Go home!"

The shouting continued, but people began streaming out. Rumors had been flying through the city for weeks: President Jean-Bertrand Aristide was in trouble. Antenor's warning only confirmed what everyone had feared.

Yvonne fought her way through the crowd to her husband. He pulled her aside.

"Tonight, tomorrow," he said. "No one knows for sure. But it's coming."

Her chest felt tight. She had to get home, find the children.

"Don't go outside," he said. "Whatever you do."

"What about you? Where will you be?"

"I may not see you for a while," he whispered, holding her close. Everyone at the meeting was in danger, but as a key figure in KID — the Confederation for Democratic Unity — Antenor would now be a hunted man.

He hurried Yvonne outside, his arm around her. Downtown Port-au-Prince was a circus of hawkers and hustlers, the street choked with dented pickup trucks and tap-tap buses in frantic colors. Horns blared and thick blue exhaust clouded the air. Antenor signaled for a taxi, something they could not really afford. Several motored by — beat-up Toyotas and Hondas jammed with passengers — and he finally broke into a run, flagging one down at a clogged intersection. Yvonne squeezed in, and as the car pulled away, she watched her husband stride back toward the courtyard.

The cab careened around open-air markets and abandoned construction projects, then descended into Cite Soleil, a labyrinth of tin shanties and open sewers. Yvonne paid the driver and scurried down a muddy pathway. Shriveled men were hunched over dominoes. Bare-chested children in rags kicked at an empty plastic jug. Dogs scavenged through garbage, their ribs straining against sagging flesh.

She reached her three-room shanty, breathless. Her mother, Therese, was cooking rice and beans over a charcoal fire. Her six-year-old son, Jacques, sat on the floor, copying his name on a scrap of paper. Yvonne gave the boy a relieved kiss, then ran out to retrieve her eleven-year-old, Daniel, who was playing soccer in the nearby dirt churchyard. He didn't want to leave, but she dragged him home.

With both kids inside, Yvonne ventured out to warn the neighborhood about the coup. There was little need. People already knew. She could feel it around her — a hard, dark fear. Young men were stockpiling machetes and rakes, shovels and old planks of wood, anything that might serve as a weapon. She grabbed someone's arm. You can't fight bullets with a stick, she argued. They had to resist, the man said. If enough people went to the palace, they could stop the military.

She shook her head. This was sheer stupidity. We have to stay alive for tomorrow! she cried. But they wouldn't listen. Resigned, she used the fading daylight to fill extra jars with water at the public stone fountain. It would be too dangerous to go out after dark.

Through the evening and all the next day, Yvonne and her family waited, tense, uncertain. Other local organizers rapped on the door, slipped in to talk with her. The teledyòl — rumor mill — was churning. But there were no soldiers around. It was strangely quiet.

And then, as darkness fell, gunfire erupted.

Yvonne raced into a bedroom with the boys and yanked them to the floor, shielding their bodies with her own. Bullets ricocheted off the corrugated metal roof with a loud pang-pang-pang. There was shouting, punctured by more gunshots. Screams and cries followed, and her children broke into sobs. She crouched over them, singing, raising her voice whenever the guns grew loud. It went on all night, the air laced with the acrid smell of burning tires from protest barricades. Well after sunrise, her children finally collapsed into sleep.

Later, the news crackled over her father's transistor radio on Radio Soleil: Aristide had been forced out of the country. She slumped in despair. Everything she and Antenor had worked for — Aristide's election, a new beginning, a country where her children could have hope — was gone. Yvonne lay low with her family for several days, worrying, brooding. Finally, with the gunfire growing sporadic and distant, she stole outside to investigate. Clumps of melted tires smoldered in the alleys. Bodies lay in pools of blood, flies buzzing around them, dogs tugging at their limbs. A heavy truck rumbled by on the main road. Her neighbor passed on the rumor: the coup leaders had ordered the dead dumped in Titanyen, the paupers' graveyard north of the capital.

Darting through the shadows, shanty to shanty, Yvonne made her way to the nearby pawnshop. She gave the owner a gourde, about twenty cents, to use the telephone. There was no answer at the KID office. She dialed the number again and again with no luck. Fearing the worst, she finally risked a visit to another KID member in a neighboring slum. Antenor, he reassured her, was safe. He'd gone into hiding in the Carrefour-Feuilles section of town, a poor hillside quarter overlooking the Port-au-Prince Bay. But KID's headquarters had been ransacked and the group's leader, Port-au-Prince mayor Evans Paul, had been arrested and beaten at the airport.

Yvonne steeled herself. While she did not have her husband's public profile, she was a known activist in Cite Soleil, which put her in serious danger. Graver still, authorities would see her as a means to track down Antenor. She got home as fast as she could, and with soldiers prowling the streets, she kept to the shanty, her children beside her.

Several weeks later, her husband remained in hiding; Aristide was still out of the country; and Cite Soleil had plunged into a state of constant terror. Every day now, people in Yvonne's neighborhood were slipping away. She knew some were bound for the countryside, seeking refuge with friends or relatives. But others were headed for the coastal areas — the beaches near Cap-Haïtien; the island of La Gonâve — where the boats lay waiting.

New Haven, September 4, 1991.

A sturdy Asian man shuffled into class with an overstuffed leather briefcase and a Lands' End canvas bag bursting with papers. He wore a navy blue blazer, and his stick-straight hair framed an open, fleshy face. He broke into a big grin.

"Hi, hi. I'm Harold Koh," he said in a guttural buzz. "Welcome to Yale Law School."

Koh greeted several students by name. They glanced around, wondering how he knew who they were.

"You've all got four classes this semester: constitutional law, torts, contracts — and the one that really matters." Koh thrust his index finger in the air and his eyes lit up.

"This one! Procedure!"

Tory Clawson, a lanky first year in Birkenstocks, laughed along with everyone else. Nothing seemed to have gone right during her first day, but she'd heard that Koh's class was something special.

"Civil procedure is the ball game!" Koh shouted. "The ball game. Everything comes down to procedure. Does everyone understand this?" He paused as if he expected the students to answer.

"If you don't know procedure, nothing else matters. Contracts. You can have the most airtight contract claim in the world. You don't know how to file a complaint, you're out of luck. Torts. Someone can run over you with a tractor while a TV news crew films it. You don't understand how to take discovery, you'll never get the videotape!"

More laughter. Koh took off his coat and paced back and forth, limping slightly on his right leg.

"Procedure. Procedure. Everything," he said in a self-mocking tone, "comes down to procedure."

Koh went to the blackboard. Papers rustled on the desks as Tory and the other students reached for their pens.

In small capital letters, in the upper right-hand corner of the board, he wrote: 1. BIPOLAR & ADVERSARIAL.

"What's the essence of a lawsuit in our system?" he asked, eyebrows raised. No one answered.

"In a civil system like they have in France, everyone cooperates in a search for truth. The parties work together to figure out what happened and how to make sure justice is done. But what do we do here in America? What do we do?"

He made a fist and shook it.

"Fight?" someone offered.

"Right! We fight. We fight. Our system is bipolar: two parties. And it's adversarial. Roe versus Wade. Brown versus Board. Marbury versus Madison."

Tory scribbled quickly.

Koh clenched both fists and held them out. "Let's say there's a disagreement between two parties. They start here." He set his fists a few inches apart, indicating the extent of the dispute.

"But when they go to court, they don't cooperate. They each take a harder line. They stake out positions here" — he moved one fist far to his right — "and over here" — and the other fist far to his left.

"Then pow!" He slammed his fists together. "They collide! And through this adversarial system, through this fight, what do we expect to happen?"

He paused for a moment, waiting for an answer.

"We expect the truth to emerge, right? Justice to be done. Right?"

Tory had come to Yale hoping to get involved in human rights work, though she wasn't quite sure what lawyers in that area actually did. The idea had seized her during a stint volunteering in Nepal, where she'd witnessed the country's 1990 democratic revolution firsthand. After marching with hundreds of thousands through Kathmandu's dusty streets, she dashed for cover as the soldiers opened fire. Terrified, she watched as the crowds sprinted off barefoot, leaving behind crumpled bodies amid a sea of flip-flops. But the momentum shifted that day. The king soon lifted the ban on political parties, and jubilant throngs flooded the city squares. Surrounded by bright flags and chanting activists, Tory felt an overwhelming exhilaration. These people had changed the world.

Many Americans had been talking about going home, but that was the last thing on Tory's mind. Despite continued violence — and the worries of her parents back in Bernardsville, New Jersey — she was now more determined than ever to stay and help the country as much as she could. She'd been driven by that impulse since the age of twelve, when she saw a Save the Children ad featuring a little Nepalese girl. The flickering images of a destitute child among the craggy mountains captured her imagination, gave her a purpose. She took up babysitting so she could sponsor a child herself, mailing off checks to the organization every month. By age twenty-two, she had spent a year and a half in Nepal, working as a volunteer in literacy programs and fighting the sale of children into sexual slavery. But in the wake of the revolution, she wanted to do something bigger, more political. Then she learned that American attorneys had come to Kathmandu to draft the country's new constitution. A human rights lawyer, she thought. That's what I'll be.

But now that she'd arrived in New Haven with her batik print shirts and Nepalese bedspread, law school seemed to have been an awful plan. The Sterling Law Quadrangle, a run-down Gothic warren, teemed with superachievers who wore their ambitions like designer labels. There were published authors, national champion debaters, people who'd triple-majored in college. Some students already had Ph.D.'s. Political arguments raged in the dimly lit hallways and the cramped courtyard. Everyone seemed to know so much about the law already — the names of the big firms in New York and Washington, the important judges. She felt she'd never catch up.

"Each of you thinks you're the mistake," Dean Guido Calabresi had sighed at his September welcome speech. "You believe you're the one student who shouldn't be here. The one who'll be exposed as a fraud. Well, I assure you, none of you is that person." Tory didn't buy it. I am the mistake, she thought, eyeing the other members of her 160-person class. Though she'd excelled at Trinity College, getting nearly all A's, she couldn't shake the feeling that she'd been swimming in a very small pond. She was never going to make it at Yale.

Normally outspoken, she turned mute in class, scared of sounding stupid. The dense course material disappointed and befuddled her. There was nothing about human rights. Instead, she was puzzling over an ancient contract case about the late delivery of a crankshaft for a mill. And while she'd had high hopes for constitutional law, it turned out to be a quagmire of irrelevance. Who cared whether a farmer had to obey a wheat production quota? Within days she hated opening her casebooks.

Civil procedure, the least intuitive of Tory's four required courses, should have been the biggest problem of all. It covered the technical rules of the system — how to file and litigate a case in court — and was chock-full of quirky, intricate concepts. But Professor Koh blew away the Socratic confusion of her other classes. With a patter of corny jokes and references from Michael Jackson to Marlon Brando, he reduced the most incomprehensible case to a simple idea, introduced every new concept in a way she could readily understand.

"Forum shopping! Forum shopping!" Koh repeated. "Does everyone understand what this means?"

Tory scrawled the words in her notebook.

"Parties looking for a jurisdiction with law that's more favorable or a judge more likely to rule for them. How's it work? How's it work? My daughter. Emily. Just six years old! She wants soda. So what's she do? 'Mommy, can I have some Sprite?'"

Here Koh's speech mimicked his daughter's — high-pitched, pleading — to much laughter. Then he was back to his own voice, earnest, intense.

"My wife says, 'No.' So what's Emily do? She's smart! She comes to me! A different judge! 'Daddy, can I have some Sprite?' 'Sure!' What's just happened? My daughter is a party who has gone from a less favorable forum to a more favorable one to secure the ruling she wanted! That's forum shopping!"

No matter how complicated a topic first seemed to Tory, Koh made it accessible with a divide-and-conquer strategy. He cut every issue into tiny parts, then numbered every one, delivering each part to the class as a discrete nugget of crucial information. "There are four (or six, or three) things you need to know..." prefaced his analysis of any doctrine, criticism of any theory. The legal opinions Tory read went on for pages and pages, a mass of foreign jargon that she would highlight, underline, and reread — all to no avail. But at the end of class, when Koh was done with a case, he'd tied it up in a neat, numbered bundle.

Dispensing with the meandering philosophical style of Tory's other courses, Koh controlled his students as much as he did the material. They were absorbed into his lectures, literally assigned parts to play. With each topic he introduced, he would designate a person as the keeper of that snippet of learning.

Whenever he returned to the topic, he'd cue the student: "Because federal judges are what kind of judges?"

"Article III!" came the answer.

"Article III judges. Article III of the Constitution!" Koh shouted. "Appointed for how long?"

"For life."

"For life! Why does that matter?"

"They don't have to worry about political pressure."

"Right! That was the first day of class. Remember? The seven parts of our traditional bipolar model of adjudication! Number five: a neutral, competent decision maker. In the federal courts, a judge who is appointed for life. A decision made by the framers of the Constitution to ensure that judges are impartial and will not try to appease the political branches of our government!"

At times, Koh conducted class almost as if it were an orchestra, gesturing and pointing to students as he turned the pages of his casebook. It all happened at a dizzying pace and Tory had to write as fast as she could to keep up. There were days when she felt overwhelmed by the sheer amount of material, and Koh's intensity could be intimidating. But she left class optimistic and energized, the logic of the subject beginning to take hold in her mind, the cases starting to fit together in a grand pattern.

It wasn't just that she felt Koh helped her truly understand the law. It was his passion and conviction that the legal system could secure justice. Now and then, he would point out where an outcome was unfair, where critics had their concerns: "We don't really believe judges are neutral, do we? The tradition of legal realism, right? It's all politics?" But most of the time, he seemed to side with the reasoning of the case they were studying — explaining why it made sense and how the law had evolved over time to become a fair system.

Tory knew there were other celebrated teachers at Yale. She'd heard the students rave about them in the chandeliered dining hall: Bruce Ackerman, an eminent constitutional theorist, all waving arms and mad chalkboard slashes; Akhil Amar, a wispy, bearded prophet who specialized in the mind-bending subject of federal jurisdiction; Owen Fiss, a guru of 1960s Supreme Court jurisprudence who, according to legend, had once gleefully hurled the Federal Rules of Civil Procedure across the classroom to demonstrate their worthlessness.

But for Tory, Koh had a charismatic presence all his own, and many at Yale seemed to share her enthusiasm. While the average law school class had thirty to forty students, Koh's lecture courses ballooned to two hundred people or more. Students crowded around him in the halls and jammed his office, repeated favorite lines from his courses like a catechism, and sought his advice on everything from summer jobs to romantic interests. Tory still had doubts about her other classes and her own intellectual talents. She also remained unsure where human rights fit into the equation. But Koh made her hopeful that Yale was the right place for her after all.

Lisa Daugaard had nothing but disdain for Harold Koh and pretty much all of Yale Law School, for that matter. In her estimation, it was packed with corporate careerists and liberal sellouts, and the institution itself was too hidebound and self-satisfied to do much good in the world. Her first semester, she lit into her contracts professor for teaching a case involving a black lynching, nearly driving the woman to tears. Then she went after her constitutional law instructor for giving short shrift to Korematsu, the Supreme Court decision allowing internment of Japanese Americans during World War II. Outside of class, she ran with the Law and Liberation crowd, who saw the legal system as a tool for rich, white men to maintain their money and power. If there was a leftist cause at the law school, Lisa Daugaard was inevitably protesting louder than anyone, and it wasn't long before many at Yale were calling her "Lisa Do-Good."

Though she was still in her early twenties, Lisa's activism stretched back two decades. When she was only four, she'd tugged her younger sister out to the backyard of their Seattle home, positioned her against one of the family's two cottonwood trees, and tied her to the trunk with a jump rope. Lisa then bound herself to the other tree. Their father soon emerged to find Lisa glaring at him defiantly, her confused sister beside her. He decided not to cut down the cottonwoods after all.

Lisa's activist drive was powered by a ferocious intellect. She skipped kindergarten and then everything after seventh grade, enrolling at the University of Washington at the age of twelve. Most every subject came easily to her, but it was history that seized her imagination. She devoured books about Europe's exploitation of Africa and the Caribbean during the era of colonialism. The abuses committed by the Western powers infuriated her, and she fantasized about joining an indigenous rebellion back in the nineteenth century.

Lisa finally found the fight she'd been itching for when, just seventeen years old, she entered graduate school at Cornell. It was the mid-1980s, and students across America were demanding that universities divest their endowments of companies doing business in South Africa, then still under apartheid. Lisa became a leader in one of the bitterest divestment struggles in the nation, with protesters numbering in the thousands. Her clashes with campus police began with sit-ins, then escalated after she padlocked a building to prevent a board of trustees' meeting. She ended up with an arrest record longer than her transcript. Eventually, the officers all knew her by sight: a short, cute brunette in a cheerful T-shirt and jeans. After arguing her way through countless disciplinary proceedings, she took to representing other students against the administration. She won almost every case. Law, Lisa came to realize, could play a key role in her activism. She dropped out of her Ph.D. program in political science and headed off to Yale.

Lisa met Harold Koh in the spring of 1991, as a second-year student in his international business transactions class, known as IBT. She hated every minute of it. "It was the most intellectually bankrupt material I've ever dealt with," she complained to a classmate. "I have no fucking clue why I stayed in the class." What was the real meaning of all the lists he wrote on the board, the principles he plowed through each day? In Lisa's view, Koh was blindly endorsing "the repressive project of American capitalism" — and co-opting his students along the way. She found his teaching style as dubious as the coursework itself. Why should everyone just parrot Koh's words back to him? Wasn't anyone interested in challenging his ideas?

After the IBT class, she'd seen enough: Koh was of the system, by the system, and for the system. She would never have dealt with him again had it not been for a radical New York lawyer on campus named Michael Ratner. To Lisa, Ratner was the anti-Koh. Bearded, bald, and fond of quoting Che Guevara, he'd represented everyone from inmates in the 1971 Attica prison rebellion to Nicaraguan citizens attacked by U.S.-funded contras. Ratner had come of age at Columbia Law School during the Vietnam War, and he considered most politicians "corrupt assholes." Along with his colleagues at the Center for Constitutional Rights, he'd even sued to halt the president from sending U.S. troops into battle. Twice. "What's the purpose of going along with the status quo?" Ratner would ask. "The government has enough paid people to do their dirty work."

Lisa had first spoken to Ratner while at Cornell, seeking legal advice in her fight against the administration, and when she learned that he taught a human rights clinic at Yale, she couldn't wait to sign up. It would mean the chance to file real cases with a lawyer she considered a role model. But to Lisa's bewilderment, Ratner's co-teacher was, of all people, Harold Koh. She couldn't fathom what interest Koh might have in human rights — and how could he and Ratner be working together?

She joined the clinic anyway, and as the weeks passed, Lisa found herself even more puzzled by Koh. The students in the Lowenstein International Human Rights Clinic were generally like sixties activist Allard Lowenstein himself — idealists committed to social justice. Koh just didn't seem to fit. Yet he'd founded the clinic. And here he was, suing a Guatemalan general for torture, staying late to finish court filings himself.

But Lisa had more important things to do than figure out her professor's contradictions. She had her own torture case in Nicaragua to work on with Ratner, and a new issue, not connected to the clinic, had grabbed her attention. In early October, the newspapers were filled with images of dead bodies in Port-au-Prince. There'd been a violent military coup in Haiti's capital, forcing the nation's first democratically elected president to flee the country.

The news left Lisa deeply troubled. Given her fascination with the colonial era, she already knew plenty about Haiti's blood-soaked past. Almost two hundred years earlier, the former French colony's half-million slaves had revolted against their plantation masters, defeating Napoleon's army and creating the world's first black republic. But history had not been kind to Haiti since then. France demanded massive reparations as a condition of trading with its former colony, crippling Haiti's fledgling economy. The United States, with its own restless slave population, refused to recognize the new country for decades. During World War I, American Marines invaded Haiti to stem creeping German influence, and through much of the twentieth century, the United States supported brutal dictatorial rule in the name of regional stability.

The two constants in Haiti seemed to be terror and a massive divide in wealth. The point was driven home by a novel Lisa had read, The Comedians, by Graham Greene, depicting life under the Duvalier regime in the 1960s. There was a sliver of the obscenely rich, known in Haitian Creole as the boujwazi, with their distended bank accounts and Hermes accessories. Then there were the rest of the people — impoverished, often illiterate, and hopeless. For years, the boujwazi had sided with any dictator willing to keep the starving masses in their place, a task carried out with the eager assistance of the Haitian Army.

But in December 1990, something Lisa considered almost miraculous had happened. Buoyed by popular will and backed by the United Nations, the country held its first democratic election. In a landslide that defied almost all expectations, the people brought to power a radical, charismatic priest named Jean-Bertrand Aristide. A child of the slums and a gifted orator, Aristide had preached for years about the rights of the poor, surviving ambushes and assassination attempts until followers declared that he was mistik, protected by special powers. We will all "sit around the table," Aristide promised his fellow Haitians, "instead of just a few, with the rest underneath, catching the crumbs."

He took office in February 1991, amid riotous celebration, and true to his word, his first act was to invite the poor to lunch on the lawn of the National Palace. Lisa was ecstatic. The new president's political movement, Lavalas, or The Flood, involved precisely the sort of popular activism she believed in most, uniting thousands of local organizers and democracy supporters in the name of self-government and economic justice. Yet all her study of history had convinced her that Lavalas could never succeed. Democracy rarely if ever prevailed in postcolonial developing countries. The poor and the weak almost never won — and certainly not in a system as corrupt as Haiti's.

As it turned out, Lisa's initial fears were realized in just a few short months. From the start, the country's boujwazi considered Aristide a grave threat to their wealth and position, and the new president was on equally precarious terms with the Haitian military. After he dismissed several generals and pressed for economic reform, rumors of a coup gathered like dark clouds. The gale hit on the night of September 29, 1991.

Depressed, Lisa sat in the dining hall and read the details. After nightfall, soldiers had charged the president's home north of the capital. Aristide fled to the National Palace, where crowds had converged from the slums to defend him, but he was captured and dragged to the headquarters of the Haitian military. Brigadier General Raoul Cedras, chosen by Aristide to lead the armed forces, was waiting for him. "I'm the president now," Cedras allegedly said to his troops. "What should I do with the priest?" They urged him to execute Aristide. But after hasty intervention by foreign diplomats, the ousted leader was shoved onto a plane bound for Venezuela.

In the weeks that followed, hundreds, perhaps thousands, of Aristide supporters were beaten, shot, and attacked with machetes, tortured and terrorized into silence. But as Lisa had expected, the international community did little in response. A trade embargo imposed by the Organization of American States was meant to force Cedras to the bargaining table, yet over time all it did was devastate Haiti's poor. She saw Washington's other diplomatic efforts as pathetic, empty gestures. Nor was she surprised. Haiti was poverty-stricken, black, and strategically insignificant — and Aristide's anticapitalist diatribes had earned him enemies at the Central Intelligence Agency and the State Department.

A month after the coup, with no end to the violence and no sign that Aristide would soon return, newspapers reported another development: Haitians were fleeing their country. Old fishing boats, rickety sailing vessels — people would rig any craft available, gather cornmeal and drums of water, and shove off in the dead of night. Around Halloween, the U.S. Coast Guard intercepted the first boats in the Windward Passage between Haiti and Cuba, taking everyone aboard and destroying their vessels as hazards to navigation. By mid-November, over one thousand Haitians were crammed onto Coast Guard cutter decks, sleeping on cardboard mats.

Still, the boats kept coming. Soon there were fifteen hundred refugees in U.S. custody. Then two thousand. Reports of vessels lost at sea piled up, with hundreds of people missing, presumed drowned. The Coast Guard was now deploying fifteen cutters for the operation, among the largest efforts it had ever undertaken in the Caribbean, and while the Navy assisted with two more ships, even that wasn't enough.

Human rights groups and some members of Congress called on President George H. W. Bush to bring the Haitians to the United States and grant them "temporary protected status," as the federal government had done for refugees from Kuwait, Lebanon, and elsewhere. But the White House refused, and the cutters cruised in slow circles off the coast of Cuba, awaiting further orders. Coast Guard spokesmen made no effort to hide their distress when they talked to the media. "The numbers are building up," one official warned the New York Times. "The ships involved are building up, and this thing is coming to a boil."

Yvonne stopped typing to listen. More gunshots followed, but they were still in the distance.

She studied the leaflet in the secondhand typewriter and tried to ignore her hunger. She'd eaten only a piece of bread that evening, washed down with a cup of watery hot chocolate. A few days earlier, she'd had nothing.

She adjusted her flickering gas lamp and went back to typing.

Pa dekouraje. Don't be discouraged.

Pa kite Makout yo pran pouvwa. Don't let the Macoutes take over.

Titid ap tounen. Aristide will return.

She pulled the paper out and set it on the stack of finished leaflets. Every day, more people fled Cite Soleil. Soldiers had killed a member of KID in her neighborhood, and she only dared to visit Antenor, who was still in hiding, on rare occasions. But Yvonne refused to keep quiet. If people didn't speak out, the whole country was going to fall apart.

A muffled hum emerged from across the sewage canal, growing into the familiar rumble of a military truck. She paused. The truck drew closer, accompanied by staccato gunfire, then ground to a halt. There were angry voices and footsteps.

She checked the door, her breath coming in short gulps. The heavy, old-fashioned key rested in the iron lock; the handle was secure. Then she thought of the lamp. She hurried to cut off the flame.


Yvonne froze. They were outside her shanty.

Crack! The door smashed against the wall. Soldiers bolted into the room. She screamed.

"Kouche atè a!" one of them commanded.

They threw her to the floor. A heel ground into her back.

Yvonne's mother, Thérèse, stumbled out of bed.

"Rete la!" Therese begged the men. "Rete la!"

One of them replied with a punch. She collapsed.

A soldier hovered over Yvonne, his boot now digging into her spine.

"I'm...pregnant," she gasped.

Two soldiers yanked her arms behind her and forced handcuffs around her wrists.

"Kote Evans Paul?!" Where is Evans Paul?!


A soldier grabbed her leaflets, kicking over the table. The typewriter crashed to the floor.

"What about these?!" he yelled, shaking the papers.

Another soldier kicked her in the mouth before she could answer. The taste of blood bloomed on her tongue.

"Manman, manman, manman!" Daniel and Jacques were screaming from the other room. Yvonne struggled to stay conscious, to mumble something to them from her swollen lips.

The men dragged her outside and heaved her into their truck. Thérèse cried from the door, but the engine kicked over, drowning out her voice. The rest of the soldiers jumped in and they roared away.

The men kicked and spat on Yvonne as the truck bounced along the potholed road. Finally, they lurched to a halt. The soldiers forced her to her feet and marched her into a squat concrete building: Recherches Criminelles. She mouthed a prayer. Ostensibly the Criminal Research Bureau of the Port-au-Prince Police, it functioned more like a torture chamber.

The soldiers pushed her past several prisoners and shoved her into a dark cell. Sometime later, two men entered. They wore the light shirts and dark blue pants of Haitian policemen and the taller one had on sunglasses in classic Macoute style. He took a long drag on his cigarette, then exhaled in her face. She coughed hard.

They knew Antenor Joseph was in hiding, he told her. They knew he was somewhere in Port-au-Prince.

"Where?" he demanded.

She pursed her lips, eyelids heavy, and shook her head.

He rammed the cigarette into her shoulder, driving the burning ash through her skin. She jerked her arm back with a scream.

Then they began hitting her. There were rifle butts, fists, and boots. Her body snapped with the blows, heaving one way and then another. The pain turned to numbness and confusion. She felt something hot and wet on her legs. Blood was streaming out of her, soaking her jeans a deep crimson.

The baby was gone.

When Yvonne came to, she was lying on the cell's concrete floor. Her back burned and puss oozed from the cigarette wound. Her clothes were caked with blood.

Dazed, her throat parched, she drifted in and out of consciousness. She heard other cell doors creak open as prisoners were dragged off, pleading, groaning.

Then her own door opened. She knew what was about to happen. They would take her outside and put a gun to her head. There would be a single shot, and she would collapse. Then they would heave her body into a truck and drive off to Titanyen.

But instead, the guards took Yvonne to a military hospital. She spent three days handcuffed to a bed, wondering why they had spared her. Doctors appeared, examined her, left. And then, with no explanation, a guard unlocked her handcuffs. He escorted her to the entrance and pushed her outside.

Yvonne squinted, numb, eyes adjusting to the harsh midday sun. She touched her forehead with a wince. It was badly bruised. A truckload of soldiers rattled past, and she shrank back into a shadow.

She couldn't go on like this. She'd told others not to flee, to stand firm, but Yvonne now realized it was impossible for her to stay. If she remained in Cite Soleil, sooner or later, they would kill her.

It was the week before Thanksgiving at Yale: cold, dark, and busy, with everyone now deep into the semester. Plenty of first-year students struggled in the early months before finding a rhythm to the coursework and a niche in the school's politically charged social world. For Tory, though, things had gone from bad to worse. Her "small group" constitutional law class was meant to provide guidance and support, but the atmosphere had turned poisonous. There were bitter arguments about feminism and abortion rights, and at a cocktail party at her professor's house, too much alcohol turned a debate into a full-blown fistfight. The class assignments, meanwhile, left her miserable. Despite hours of effort, Tory couldn't figure out how to write her first paper, a legal memorandum analyzing several court cases. "I'm not going to tell you your work is good," the professor told her, "because it's not."

Even more depressing, Tory found herself souring on Harold Koh. In September, the dean had stressed to Tory and all of her classmates that they were "off the treadmill." He meant they were free from the pressure of grades (the school ran on an Honors/Pass system) and job-hunting (a Yale law degree opened most any door). Follow your passion, Calabresi had implored. Don't mindlessly jump through hoops and collect gold stars on your way to graduation. And yet as the fall semester went on, Tory began to think that if anyone were still on the treadmill — and encouraging others to join him — it was Koh.

He often talked up the career path of clerking on an appellate court and then the Supreme Court, working at the Department of Justice, and ultimately becoming a law professor, all of which he had done. The students surrounding him were hypercompetitive Ivy Leaguers, the type who most intimidated Tory. They all seemed to be playing the system for advantage—angling for research positions with professors, eyeing the prestigious private firms, and lining up recommendations for judicial clerkships. And when it came to the clerkship game, a letter from Koh was among the most valuable at Yale. He'd helped send over two dozen students to the Supreme Court, many of them to his mentor, Justice Harry Blackmun. Entire law schools couldn't match those numbers.

Tory knew she didn't want to be part of that world. As far as she could tell, Koh didn't value the sort of in-the-trenches public interest activity that had brought her to Yale in the first place. She'd heard that Koh ran some kind of international litigation clinic, but she assumed it was just another exercise in what she dismissively called "being high-powered." As the weather turned cooler and the leaves fell, she lost interest in his class, smirking at the eager students who flocked around him. Why care so much, she wondered, when the only goal was winning a fancy position, an important title? Increasingly convinced that Yale was no place to do human rights work, Tory began to think about leaving law school.

The Lowenstein Clinic's weekly meeting had just wrapped up, and Lisa Daugaard was stuffing her papers into her backpack when Michael Ratner made a last-minute announcement. Earlier that day, he'd spoken with a lawyer in Florida named Ira Kurzban, a longtime advocate for a cause few people cared about: the rights of Haitian refugees. On the phone from Miami, Kurzban had sounded a little frantic to Ratner. He was suing the U.S. government over some massive federal operation in the Caribbean and needed emergency help.

Lisa immediately volunteered along with two other students, and they were soon on a conference call to Florida. Kurzban, deluged with work, only had time to give them a quick summary. The Coast Guard had supposedly run out of space to hold Haitians on its cutters, he said. The administration had been trying to send the refugees to other Caribbean countries with little success. So, under orders from the White House, the Coast Guard had started to return the refugees to Port-au-Prince.

Convinced innocent people were about to be killed, Kurzban and other immigration lawyers in Miami had hastily filed a lawsuit against the Bush administration to halt the repatriations. The case, Haitian Refugee Center v. Baker, was named for the lead defendant, Secretary of State James Baker. A lower court had issued an emergency ruling in the refugees' favor, but Kurzban had to defend it the next day on a fast-track appeal. There was a lot of technical research to be done and not enough attorneys to help. Kurzban needed answers by the next morning.

As Lisa hurried through her assignment that night, she got a glimpse of the central issues in the case. It turned out that the Coast Guard was intercepting the Haitian vessels under a 1981 agreement between the Reagan administration and former Haitian dictator "Baby Doc" Duvalier. The Reagan-Duvalier deal gave the United States the unusual right to force Haitians back to their homeland if they were headed to America without permission. The United States had no such agreement with any other country in the world, but fleeing Haitians, President Reagan had said in an official proclamation, "threatened the welfare and safety" of the United States. Predictable enough, Lisa thought: the White House had promised to keep foreign aid flowing to a dictator to prevent an influx of poor, black immigrants.

But the deal had a critical exception. The United States had declared that it would not return anyone to Haiti who qualified as a bona fide political refugee, as opposed to an "economic migrant" simply looking for a better life. This was a legal duty, not an act of charity. Under both American and international law, people fearing persecution based on their political beliefs, race, or certain other factors could not be returned to their persecutors. The bedrock principle of non-return, or non-refoulement, as it was known in immigration law, dated back to a United Nations treaty drafted after the Holocaust. Over one hundred nations, including the United States, had adopted the treaty's principles.

To ensure that no political refugees were sent back to Haiti, the Immigration and Naturalization Service, or INS, had kept officials stationed on the Coast Guard cutters plying Caribbean waters. The screening procedure was brief. Whenever a Haitian vessel was intercepted, an official would ask each person a few questions and then make a snap decision: on to the United States to file a formal asylum claim, or back to Port-au-Prince.

The INS statistics on Haitian refugees were striking. Though Haiti had suffered under repressive dictators for most of the past decade, the INS had rejected 99.9 percent of the fleeing Haitians intercepted by the Coast Guard. Out of 23,000 people interviewed from 1981 to 1991, only 28 were taken to America. During the same time frame, the United States had welcomed hundreds of thousands of refugees from elsewhere around the world, including Cuba, the then-Soviet Union, Cambodia, Ethiopia, Vietnam, Afghanistan, and Iran.

In the view of people like Kurzban, the Haitian interdiction process reflected a virulent, entrenched racism. He knew the interviews tended to be mere formalities, conducted right after the Haitians had been plucked from the sea, exhausted and dehydrated. The INS simply declared everyone an economic migrant and sent them back — and the practice was continuing despite the coup. But with the Cedras regime terrorizing Haiti, the lawyers in Florida were demanding an end to the rushed interviews. They called for a more careful method of identifying people who had legitimate claims of persecution.

With a better understanding of the Kurzban team's objective in Baker, Lisa faxed off her research late in the evening and went to bed. To her disappointment, there was nothing more to do on the case the next day because the lawyers had left the country. After a lot of procedural wrangling, the Florida court had halted the repatriations and granted Kurzban's group access to the Coast Guard cutters in the Caribbean. They were now going to investigate the way the INS was conducting the interviews. Lisa kept tabs on things through the newspaper. Events were unfolding fast, and attention now focused on the American naval base in Cuba.

The court order preventing the Coast Guard from sending refugees back to Haiti created an instant crisis for the White House. Bush officials now had to find somewhere to hold five thousand tired and hungry people. The administration did not want to bring them to Miami for fear of encouraging more Haitians to flee. Nobody considered that a wise political move, especially with a U.S. presidential election looming. As the clock ticked, officials raced through other alternatives, including Caribbean islands like Vieques, off the coast of Puerto Rico. But they could find no place with the infrastructure to build a sufficiently large refugee camp. Finally, they turned to Guantánamo Bay.

The naval base at Guantánamo, on Cuba's southern tip, was America's oldest overseas military facility, a forty-five-square-mile windswept stretch of hills taken by U.S. forces in 1898 during the Spanish-American War. American control of the land around the bay was formalized in 1903. That year, President Theodore Roosevelt's administration leased it from the newly formed Republic of Cuba as a naval base and coaling station. Almost ninety years later, the federal government was still paying a yearly rent check of about four thousand dollars to a disgusted Fidel Castro, who refused to cash it. The troops at "Gitmo" had waited out the Bay of Pigs invasion and the Cuban missile crisis on high alert, but those dramatic days were gone. With the fall of the Soviet Union, the base had lost most of its strategic importance, and it wasn't the place an ambitious young officer wanted to be.

The government had little precedent for detaining people on Guantanamo, though in the late seventies, about one hundred Haitian refugees had been held there briefly after they had tried to sail for the United States. Now, though, officials from the Justice and State Departments embraced the Guantanamo option. The INS screening interviews would be much easier on land, and the base had the necessary infrastructure and an advantageous location. It was less than 125 miles from Haiti but well beyond U.S. borders, with severely limited access from the mainland. That gave the government effective control over the press and any other group that might seek contact with the refugees.

But the most important factor behind the decision was a legal one: Justice Department officials believed that American law didn't apply to foreigners on an overseas military base. Assuming that Justice was right, the INS could process the asylum seekers on Guantanamo without following all the requirements of domestic immigration law. And the government would have a strong argument for getting Kurzban's lawsuit thrown out of court.

Defense officials didn't like the Guantanamo plan one bit. They had no interest in playing caretaker for thousands of Haitians, particularly on an overseas base. Building a refugee camp would take money and manpower no matter where it was done, but Guantanamo presented special headaches. Castro had cut off the water in 1964, so the base depended on an expensive desalinization plant. Food and other supplies had to be delivered by barge or military transport planes. And while the oppressive heat didn't seem to bother the iguanas, sand flies, or banana rats, few human beings spent time on Guantanamo without complaining about it. In a last-ditch argument, the Pentagon insisted that the treaty with Cuba only permitted naval activities on the base, but Justice and State prevailed.

Two days before Thanksgiving, Marine Brigadier General George Walls Jr. and a Joint Task Force made up of hundreds of GIs from all four branches of the military arrived at Guantanamo to carry out Operation Safe Harbor. Working under a blazing Caribbean sun, the troops pitched 135 twenty-person tents at an unused training site, providing accommodations for more than 2,500 refugees. The Haitians were directed off their Coast Guard cutters and funneled to the new camp in yellow school buses. Within days the camp was filled to capacity, and Walls received orders to expand the operation. He set up a massive facility on the inactive McCalla Airfield — hundreds more tents, along with showers and rows of portable latrines, all surrounded by razor wire. Soon, more than six thousand refugees were warehoused on the base under the guard of nearly two thousand soldiers.

With the cutters emptied, the Kurzban team's examination of the interview process took place on Guantanamo. The results made Kurzban seethe. After conducting several depositions, he concluded that the asylum officers responsible for screening the refugees didn't know basic facts about Haiti's political situation. Worse, he got the strong sense that they were under pressure from Washington to "screen in" as few people as possible, ignoring legitimate claims in order to keep the numbers down.

Kurzban and his team returned to Miami to convey their findings to the judge in the Baker case, a liberal-minded maverick named Clyde Atkins. Their efforts paid off, briefly, as Judge Atkins kept the ban on refugee returns in place. The media, meanwhile, latched on to the story of careless INS interviews — and the number of political refugees screened in to the United States shot up. But the government quickly appealed, and over the next several weeks, a series of contradictory rulings followed. In a game of judicial whack-a-mole, the conservative federal appellate court in Atlanta, Georgia, knocked down lower-court orders for the refugees as fast as they were issued.

The Baker litigation was now the talk of the Lowenstein Clinic. In class, in the hallways, Lisa would ponder each new ruling with the other students. Baker had a special excitement to it. The clinic's current torture cases against dictators and military figures sought "retrospective relief," meaning compensation for victims who'd been hurt long ago. But Kurzban and his colleagues were trying to stop injustice on the fly, forcing reform of an ongoing foreign policy operation. Adding to the sense of urgency, the crisis continued to play out in the papers, often on the front page, alongside reports on the harsh political situation in Haiti and the desperate circumstances of ordinary Haitians.

To the students' disappointment, the appellate court threw out the Baker case for good in early February 1992. The court's decision came down to one principle: Haitians were outside the United States, so they had no protection under American law. In fact, the court implied, they had no rights at all. No matter how the INS might mishandle their asylum claims, no matter what fate they might face in Haiti, they had no recourse. The Coast Guard repatriation process resumed the day of the court's decision, and Kurzban and the other Baker lawyers were now down to one option: the U.S. Supreme Court.

Yvonne returned home to her shanty, bruised and hobbling, just long enough to see her children. Her mother bathed her and put coffee compresses on her head. Jacques was crying; Daniel, too frightened to speak. Yvonne reached for them and smiled weakly. Everything is okay, she promised. Everything is all right. She tucked them into bed, and at last managed to sing them to sleep.

Back in the kitchen, she whispered to her mother that she had to leave. They'd all be safer without her around. She didn't know where she'd go, she said, brushing away the tears. Somewhere far away. Perhaps Baradères. She asked Thérèse to tell the boys manman had gone on a little trip. When Yvonne had figured things out, she would call the pawnshop or send a letter.

Her mother nodded. It turned out that a local police officer had tipped off the military on Yvonne's whereabouts. He was prowling the neighborhood, his rifle slung over his shoulder, and he'd surely be looking for her again.

She woke early the next morning and stuffed a few things, including her KID papers, into an old backpack. It would still be hours before the women went to the open ditches to wash clothes, and the only sound was a crying rooster. She did not expect to see anyone from the police or military at this time of day, but just in case, she pulled a floppy straw hat down low over her face. Then she slipped out the back of the shanty and hurried along the sewage canal.

It was the same route she'd once taken to school. She'd been an excellent student — so promising, in fact, that the nuns had moved her to the morning classes, where French was spoken instead of Creole and all the other children wore better uniforms than Yvonne's parents could afford. They were just able to eke out tuition for her — her mother earning a dollar a day sewing baseballs while her father scraped for work as a handyman. But then ThérÞse fell ill with tuberculosis and lost her job.

Crushed, Yvonne had to leave school. She began asking questions about the gaping divide between rich and poor, questions her nervous parents warned would only lead to trouble. Her sister and brother didn't cause such problems. What drove Yvonne to stick her nose where it didn't belong? But after she met Antenor Joseph, a hard-driving activist in a neighboring slum, she turned radical. An aide to KID leader Evans Paul, the future mayor of Port-au-Prince, Antenor was committed to democracy in Haiti as if his life depended on it. Yvonne threw herself into the cause with him, and after Aristide declared he would run for president, she gave every free moment to the election effort: organizing voters, teaching the illiterate how to mark the ballot. Following Aristide's stunning victory, she celebrated all night with Antenor and her neighbors in Cite Soleil, dancing to the music of Haitian singer Manno Charlemagne.

The sun was casting shadows on the puddle-filled streets when Yvonne reached the Carrefour-Feuilles neighborhood where Antenor was now hiding. She'd been told to go to a certain intersection and wait near a stall where someone sold coffee. A young man finally passed by, murmuring her name. He hurried her through a maze of alleys — left, right, then left again — to the safe house.

It was dark inside. As Yvonne's eyes adjusted to the gloom, her husband appeared to her, first in outline, then feature by feature — his high forehead, his bright eyes. Antenor gasped at the welts on her face, gathered her in his arms. But when he asked her about the baby, she could only shake her head. An hour later, anguished and afraid, Yvonne told him she was headed for the countryside. Before she went, her husband fished twenty gourdes out of his pocket, about four dollars. He pressed the money into her hand.

"Kenbe fÞm," Antenor choked. Be strong.

The students shook off the New England cold, shedding their Patagonia fleece jackets and long wool coats, pulling notepads out of backpacks. It was a month into the new semester, late February. The Lowenstein Clinic was on scheduled hiatus until the fall, and Michael Ratner would not be on campus for several months. Koh was now teaching a course about the president's foreign affairs powers.

A stack of photocopies made its way around the class. Koh held up the decision. It had sputtered out of his fax machine the morning before: one brief sentence announcing that the Supreme Court had refused to hear the Baker case. The ruling of the Eleventh Circuit Court of Appeals in Atlanta would stand. The Kurzban team was done.

Only one of the nine justices, Koh said, had voted to review the case — Harry Blackmun. Koh read Blackmun's dissent aloud: "'If indeed the Haitians are to be returned to an uncertain future in their strife-torn homeland, that ruling should come from this Court, after full and careful consideration of the merits of their claims.'"

Koh shook his head. "Does everyone understand how extreme the Eleventh Circuit decision is?" he asked. "The court said these people have no rights! None! They're down on Gitmo right now. They're in detention at the hands of our government. And they're going through interviews that are almost certain to send them back to Haiti and maybe a death sentence. But they don't get a lawyer. They don't get a lawyer. It's like Gideon versus Wainwright, right? Does everyone see this?"

Along with his students, Koh had been following Baker, and as a former Supreme Court clerk, he'd offered his views to Kurzban's colleagues about the odds that the high court would agree to review the case. Koh hadn't been optimistic, for the court rarely interfered with the president's decisions in foreign affairs. It was a hesitancy he considered both unwise and unfaithful to the Constitution. The court had to stay involved, Koh had argued in his recent book, to protect against presidents who were "evil, foolish, or inattentive." When judges kept a hands-off attitude toward foreign policy, he said, it could lead to disaster, from Nixon's bombing of Cambodia to the Iran-contra scandal. With Baker, Koh believed the justices had failed again.

He normally would have turned to other class materials by now, for he always had his performance meticulously laid out. But today he was too troubled to stop talking about Kurzban's suit.

"Does anyone know," he asked, "where the case was filed?"


"Miami. Southern District of Florida. Very risky forum. Can anyone explain why?"

No one answered.

"The Eleventh Circuit! Appeals go to the Eleventh Circuit! You never want to be in front of a court that conservative. Not on a case like this. Not if you're Haitian. You're guaranteed to lose on appeal. So what do you do instead?"

"File somewhere else?"

"You could file somewhere else! Where? Where?"

"Actually, can't you sue in any federal court in the country?"

"Right. There are fifty states this case could have been filed in. Why?"

"There's personal jurisdiction because the government's found in all of them."

"So why do you care? Why's that matter?"

"You can look at different courts and find the one with the judges who might rule for you."

"Right! Right! And you can look for a circuit with the most lenient standards for issuing a temporary restraining order. But think about it, think about it. These people are not just deprived of lawyers. They're at the total mercy of our government. You can't physically beat a death-row inmate. But you can beat a Haitian on Guantánamo, and according to the Eleventh Circuit, there's nothing the guy can do about it. Does everyone see this?"

Koh explained that a small group in Congress was still seeking temporary protected status for the refugees, which would allow them into the country for at least the short term. But he said it was unlikely to happen. Haitians, even pro-democracy activists running for their lives, were simply too unpopular. Nobody cared.

"So now what happens?"

Koh shrugged. "The government continues its repatriation program entirely unconstrained by law. The case is dead."

Koh liked to finish class on an upbeat note, but he had nothing else to say. Most of the class packed up and trudged out, though several students stuck around to ask questions. He recognized them as friends of the Lowenstein people who'd been following Baker.

"Where do you think the case should have been filed instead?" one asked.

"The Second or Ninth Circuit," Koh said, referring to federal courts in New York and California. There were a number of liberal judges in both places.

"What about political pressure?" someone else chimed in. "Like going after Bush and trying to convince him to change the policy?"

Koh shook his head. "Forget it," he said. "Super Tuesday's just three weeks away."

The Republican primaries in eight states were scheduled for the same day in mid-March. While President Bush was the clear leader, right-wing nationalist Pat Buchanan was pressuring him in the South. Bush was not about to weaken his support in Florida over the Haitians, especially given some voters' hostility to immigration.

Koh finally cut off the discussion. It was late. He had to pick up his two-year-old son, William, and get home.

His breath plumed in the chilly air as he walked to his dented silver Subaru. He had not been this troubled by a ruling from the Supreme Court for a long time, and he felt all the more stung because he'd actually worked on the case. A lawyer on the Kurzban team had called for help the night before the Supreme Court filing deadline. Koh had never been involved in litigation against the government, but he'd agreed to pitch in. He'd ended up drafting a brief until dawn — for nothing, it turned out. As he yanked a parking ticket off his windshield and dumped his notes on the passenger seat, Koh figured he was done with Baker and the Haitian refugees for good.

Copyright © 2005 by Brandt Goldstein

Meet the Author

Brandt Goldstein, a 1992 graduate of Yale Law School, has written for The New York Times Magazine, The Washington Post, Chicago Tribune, and Slate. He writes a monthly feature for The Wall Street Journal online edition and is a visiting professor at New York Law School.

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