Decades before President Donald Trump nominated William Barr to retake the reins at the Department of Justice, Barr used the post to indefinitely detain hundreds of HIV-positive asylum-seekers at a Guantanamo Bay detention center, deemed an “HIV prison camp” by a federal judge who ruled the quarantine to be in gross violation of the U.S. Constitution.
That policy, part of a program that at its peak held more than 12,000 Haitian refugees at Guantanamo Bay Naval Base, helped lay the legal groundwork for the indefinite incarceration of “enemy combatants” in the War on Terror—and institutionalized the detention system that President Trump has made a cornerstone of his immigration policy. Barr has since defended the detention of hundreds of HIV-positive asylum-seekers, some of them children, even though the government’s own lawyers admitted at the time that detainees had inadequate medical care.
As the Senate Judiciary Committee begins hearings on Barr’s nomination to once again serve as U.S. attorney general, his role in the indefinite unconstitutional detention of immigrants seeking asylum will be a key area of interrogation for Democrats on the committee.
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“Given this administration’s troubling record of migrant deaths and family separation, we need an attorney general who will stand up to the president to ensure the safety of people fleeing for their lives,” Sen. Richard Blumenthal (D-Conn.) told The Daily Beast. “I am worried Mr. Barr is not the man for the job.”
Immigration advocates, meanwhile, fear his confirmation could set the stage for more indefinite detention of immigrants under Trump—this time, on American soil.
“We have had a massive increase in the criminalization of immigration and immigrants, and a massive expansion of immigrant detention,” said A. Naomi Paik, an assistant professor of Asian-American studies at the University of Illinois whose book, Rightlessness: Testimony and Redress in U.S. Prison Camps Since World War II, detailed the conditions in the camps. “Someone like Barr, they have a lot more tools now in their toolkit to keep migrants in detention.”
The program, which continued into the next presidential administration, was grounded in the same anti-immigrant sentiment that has been the polestar of President Trump’s political career—and critics of the policy say it might presage even worse abuses by a Barr-led Justice Department in the future.
“It could only happen at this confluence of fear of the unknown: the drumbeat of anxiety and deliberate fearmongering over HIV, the grey area of what Guantanamo Bay was and is, and the willingness to use fear of brown people, fear of gay people, fear of disease, and mix it all up in such a way to allow politicians to play for political points,” Andrea Pitzer, a journalist and author of One Long Night: A Global History of Concentration Camps, told The Daily Beast.
“You can give Bill Barr the benefit of the doubt if you’re inclined to… he couldn’t know those things in that moment,” Pitzer continued. “But the fact [is] that there seems to be no reflection or hindsight or regrets, and now he’ll go to work for a president who is much more radical.”
The ‘Boat People’
Although increasing political destabilization and corruption had prompted hundreds of thousands of Haitians to flee the country during the 1980s, the migrant crisis was inflamed by a military coup d’état in September 1991, when democratically elected President Jean-Bertrand Aristide was deposed by Army General Raoul Cédras. The Cédras regime swiftly implemented a campaign of terror and repression not seen in Haiti since the ouster of the Duvalier dynasty, and more than a quarter-million people fled the capital within three months.
Thousands of those people took to the high seas, boarding overcrowded, unseaworthy vessels destined for the United States in the hopes of escaping Cédras’ death squads. Nearly all the vessels that managed to stay afloat long enough were intercepted by Coast Guard cutters. Following perfunctory interviews aboard packed sailboats and skiffs, U.S.-bound Haitians seeking political asylum were forcibly disembarked and their vessels destroyed.
But with the court-imposed suspension of an Immigration and Naturalization Services program requiring their repatriation to Haiti, and heavy political opposition to allowing the Haitians to pursue their asylum claims in the United States, the “boat people,” as the Haitian refugees came to be known, had nowhere to go. After circling international waters awaiting a decision from Washington, Coast Guard vessels began taking the refugees to a nearby U.S. naval station in Guantanamo Bay, Cuba.
The base—under American control, but not technically part of the United States—was a legal grey area, where laws governing the treatment and housing of asylum seekers were quickly forgotten, and detainees were effectively stripped of the right to have rights.
“They did the best they could... but it was a really bad situation,” Pitzer said. “They were held in awful conditions, and the longer they were held, the worse the conditions got.”
On Nov. 22, 1991, in hopes of clearing the backlog of thousands of Haitians being held at the base, the INS issued a memorandum stating that any Haitians held at Guantanamo found to have a credible fear of persecution if they were returned home would be allowed to enter the United States to pursue their asylum claim. Those found to be seeking asylum based on economic hardship, rather than political persecution, however, were returned to Haiti.
More than 10,000 Haitians were eventually given passage to the United States. But for hundreds of asylum seekers otherwise qualified to enter the country, an even greater hardship loomed.
‘Florida Will Go Ape’
When AIDS was first discovered in the early 1980s, Haitians were among several groups—men who had sex with men, intravenous drug users, sex workers, and hemophiliacs among them—who were found by the Centers for Disease Control and Prevention to be at higher risk for exhibiting symptoms of the syndrome. Although later studies concluded that Haitians were initially misclassified as a distinct epidemiological risk-group for HIV/AIDS, due in part to cultural taboos on discussing prostitution, drug use or homosexual acts, the stigma stuck.
When the State Department approached Belize and Honduras about potentially accepting Haitian asylum-seekers, their governments demanded that potential candidates first be tested for HIV. Those test results found the presence of the virus in a number of the detainees, prompting the U.S. government to conduct universal HIV testing for all Haitians at Guantanamo Bay—results that, under federal law, forbade their entry into the United States.
Because medical screenings were only conducted on migrants who had met the credible-fear threshold for asylum consideration, HIV-positive refugees could not be sent back to Haiti—but laws forbidding them from entering the United States kept them from being given passage to the mainland. Loopholes became knots, and 310 Haitian immigrants became prisoners of Guantanamo’s Camp Bulkely, the world’s first detention camp for refugees with HIV.
Barr would later admit that politics played an outsized role in the detention of HIV-positive asylum seekers, and bragged about going toe-to-toe over the base’s use with Colin Powell, then chairman of the joint chiefs of staff, and Dick Cheney, who at the time served as secretary of defense.
“I did point out that the notion, what do you want me to do? You want 80,000 Haitians to descend on Florida several months before the election? Come on, give me a break… Florida will go ape,” Barr told the University of Virginia’s Miller Center in a candid 2001 interview about his tenure at the Department of Justice, in which he supported the idea of making Guantanamo Bay a permanent immigrant processing center, outside the scope of U.S. law.
“Their position was, ‘Guantanamo is a military base, and why were all these people here, the HIV people, all these other people? How long are you going to be on our property with this unseemly business?’” Barr continued. “I’d say, ‘until it’s over. But we’re not bringing these people into the United States.’”
Blumenthal told The Daily Beast that Cheney’s opposition, coming from an eventual champion of Guantanamo Bay’s use as a center for the indefinite detention of terrorism suspects, was a major red flag for Barr’s confirmation.
“Even Dick Cheney... not to mention the military’s own doctors, expressed concern about keeping these asylum seekers in Guantanamo for political gain. When you’re to the right of Dick Cheney on Guantanamo, you know you’ve gone too far.”
The conditions in which Barr wanted to hold HIV-positive asylum seekers “until it’s over” were appalling, with inadequate access to medical care, maggot-ridden food, and cramped conditions that exacerbated pre-existing health conditions, according to detainee testimony.
“They basically lived in these really cheaply and quickly built barracks made with plywood,” said Paik.
“There were no separated rooms—just one large barracks,” Paik told The Daily Beast, leaving detainees to hang sheets for some semblance of privacy. “The windows didn’t have any kind of glass or plastic—and we’re talking about Cuba, so it wouldn’t keep out the rain… The refugees described their housing as uninhabitable.”
Although the HIV medication AZT was available to detainees at Camp Bulkely, due to an understandably severe lack of trust between detainees and the medical staff, many asylum-seekers refused to submit to blood tests or take medications. Medical providers would sometimes hold down the refugees and take their blood anyway; some women later testified that they had been given birth-control injections without consenting.
The detainees organized protests and hunger strikes, actions that were met with U.S. military in riot gear, who periodically stormed the camp to quell dissent. Outspoken protesters were kept in solitary confinement, Paik said, left to sleep on cardboard sheets.
“Detention at Guantanamo was a calculated effort to deny any constitutional or legal rights to bona fide refugees and targeted and stigmatized Haitians because of their illness,” said Lucas Guttentag, the founding national director of the Immigrants' Rights Project of the American Civil Liberties Union and co-counsel in fighting for the refugees’ freedom. “The conditions were deplorable, and the callous lack of sensitivity to human suffering and fundamental human rights was shocking.”
Since the Justice Department reasoned that Guantanamo Bay was not subject to U.S. law, asylum seekers were denied access to immigration attorneys for months, as well as basic medical care than even the military found concerning.
“While individual doctors and medical providers did what they could, the conditions made any notion of adequate care impossible,” Guttentag said.
Navy doctors, stymied by the lack of resources necessary to treat hundreds of HIV-positive refugees, requested the medical evacuation of several detainees from Guantanamo, which the Justice Department almost universally denied.
“One refugee had it pretty dire because of HIV,” Paik said. “His father lived in Florida and kept petitioning to have his son released to his care in Florida, and continually, it was rebuffed, rebuffed, rebuffed. He died that same week that he was released.”
A Lingering Crisis
With President George H.W. Bush’s defeat in the 1992 election, Barr left the crisis in the hands of the Clinton administration. Although President Bill Clinton had campaigned on closing Guantanamo Bay, the Haitian refugees were left in limbo until June 1993, when District Court Judge Sterling Johnson Jr. ruled that the indefinite detention of HIV-positive asylum seekers without medical care was a blatant violation of constitutional due process—and likened the facility that still held more than 200 HIV-positive Haitians to a concentration camp.
“Although the defendants euphemistically refer to its Guantanamo operation as a ‘humanitarian camp,’ the facts disclose that it is nothing more than an HIV prison camp presenting potential public health risks to the Haitians held there,” wrote Johnson, who ruled that the Haitians remained in detention “solely because they are Haitian and have tested HIV-positive.”
The government finally moved to release the detainees into the United States, but with a caveat that would soon play an enormous role in Guantanamo Bay’s future, and in the future of indefinite government detention.
“They were released, in exchange for keeping any final decisions over the applicability of U.S. laws over Guantanamo off the books,” said Pitzer, a decision that she said “literally set the stage for post-9/11 abuses at Guantanamo… the facility became a test case, kept off the books to make sure that people can still be brought to Guantanamo in a grey area, and not get the protection of U.S. laws.”
With Barr’s history, which includes calling for the government to to promote laws which “restrain sexual immorality,” and the recent death of Roxsana Hernández Rodriguez, an HIV-positive transgender woman in immigrant detention, advocates for LGBT immigrants told The Daily Beast that they are already deeply concerned what a second stint at the Justice Department could mean for their clients.
“Barr’s embrace and continued-defense of concentration camps for HIV-positive Haitian asylum seekers, as well as his leading role in fighting to ban immigrants living with HIV from entering the country, is appalling,” said Aaron C. Morris, executive director of Immigration Equality, a nonprofit organization that advocates for LGBT and HIV-positive people in the immigration system. “Immigrants living with HIV deserve an attorney general who cares about their well-being and respects their human rights. William Barr has yet to demonstrate that he is interested in doing either.”
In the decades since Camp Bulkely’s closure, internment-as-law-enforcement has become the norm in immigration policy—a development that Pitzer, the expert in concentration camps, finds deeply troubling.
“My worry is, we’re institutionalizing a sort of concentration camp approach—that it’s acceptable American policy,” Pitzer said. “Every administration has made terrible politically minded decisions that do not look at the humanitarian situation and attempt to skirt the humanitarian interpretations of the law… but by [repeating] the things that have already happened, they’ve left an opening for the Trump administration to do more, and worse.”
