The "Haiti Paradigm" in United States Human Rights Policy

Koh, who was counsel of record for the plaintiffs in Sale v. Haitian Centers Council, argues that his earlier work on executive dominance in foreign affairs and on transnational public law litigation both came true in the case: the litigants won the release of more than three hundred refugees held at Guantanamo and established public law precedents, yet the President took drastic action, Congress stood silent and the Supreme Court condoned the result. He names a third pattern, the Haiti Paradigm, in which the United States policy toward Haiti was inordinately soft on the illegitimate regime and unfairly harsh on fleeing refugees.

The essay recounts the refugee story from the September 1981 bilateral interdiction agreement, explains why the litigants sued, analyzes why Congress desisted, the Court erred and the President prevailed, and assesses why the policy foundered. He concludes that a failure of recognition and resolve led two successive administrations to good intentions and bad results, and that the episode should be treated as a cautionary tale.