CABA v. Christopher: Twentieth Anniversary of the Guantánamo Refugees Litigation

By Christina M. Frohock

In the summer of 1994, tens of thousands of refugees—or balseros—boarded boats, rafts, and even truck tires in a desperate attempt to leave Cuba and come to the United States. Despite U.S. law that promised asylum upon exit from the island, the Coast Guard intercepted these refugees at sea and brought them to the U.S. Naval Station at Guantánamo Bay, Cuba, where they lived for a year before finally entering the United States. CABA v. Christopher is the lawsuit filed on the refugees’ behalf.[1] Now, on its twentieth anniversary, the case stands as a landmark opinion in constitutional law and a prelude to U.S. Supreme Court opinions determining Guantánamo’s legal status after September 11, 2001.

The Cuban refugees’ diversion to Guantánamo signaled a reversal of U.S. policy. For nearly thirty years, on the basis of the Cuban Adjustment Act and other laws, the U.S. Government had granted asylum to all Cuban citizens who managed to escape the island.[2] But this new exodus stretched U.S. policy to its breaking point. After Fidel Castro announced on August 8, 1994, that his government would no longer patrol the coast nor forcibly prevent emigration by boat, thousands fled.[3] Many refugees died at sea, approximately 8,000 reached South Florida, and more than 33,000 were picked up by Coast Guard cutters in the Florida Straits.[4] The massive scale of immigration reminded political leaders of the 1980 Mariel boatlift, during which 125,000 Cuban refugees arrived on the shores of South Florida and overwhelmed community services.[5] Fearing a repeat of Mariel, then-President Clinton ordered the Coast Guard to intercept at sea all those employing “irregular means of migration to the United States on boats and rafts” and divert them to “safe havens” in Guantánamo.[6]

The United States has held Guantánamo for more than a century, originally using the site for defense purposes during the Spanish-American War. Under lease agreements dating back to 1903, the United States exercises “complete jurisdiction and control” in perpetuity over 45 square miles of land and water, and the military pursues its contractual purposes of coaling and naval stations.[7] With the sudden arrival of tens of thousands of refugees, the military shifted its focus to humanitarian housing under what became known as Operation Sea Signal.[8]

The refugees’ living conditions were grim. By September 1994, more than 33,000 Cuban refugees had joined 12,000 Haitian refugees already in Guantánamo, all crammed into dusty camps filled with brown tarp tents and surrounded by coiled wires.[9] Refugees lost privacy, sleeping in tents holding up to fifteen cots each.[10] They waited in long lines in the tropical heat for showers and shared a few thousand portable toilets.[11]

There was no end in sight On September 9, 1994, the United States and Cuba issued a Joint Communiqué that the two countries had “agreed to take measures to ensure that migration between the two countries is safe, legal, and orderly.”[12] This agreement formally ended the open-arms policy of the United States toward Cubans and codified the long-term nature of Operation Sea Signal. Under new U.S. policy, Cuban “migrants” intercepted at sea had three options: (1) remain in Guantánamo camps; (2) repatriate to sovereign Cuba and seek formal relief through the U.S. Interests Section in Havana; or (3) travel to a third country.[13] The key to this policy was the requirement that refugees seek entry into the United States indirectly, that is, back through sovereign Cuba.

Watching the rafter crisis unfold, attorneys in Miami were appalled—and derided the United States-Cuba Joint Communiqué as the “Clinton-Castro Accord.” Many attorneys were Cuban refugees themselves and disagreed with the United States’ new policy of holding refugees in Guantánamo camps and forcing them to return to Castro’s Cuba. More than eighty attorneys volunteered to represent the refugees pro bono, including Yale Law Professor Harold Hongju Koh, who previously argued in the U.S. Supreme Court on behalf of Haitian refugees.[14] They quickly bonded as “brothers and sisters in law,” Professor Koh said, and their strategy from the outset was both political and legal.

On the political front, several attorneys flew from Miami to Washington, D.C., on October 13, 1994, for a private meeting with White House officials.[15]

“We did not want to file a lawsuit,” attorney Frank Angones said. “We wanted to come to an arrangement.”

The attorneys hoped to gain access to the refugees in Guantánamo and secure their release directly into the United States. Although both sides sought an open and democratic Cuba in the long term, the discussion stalled on the immediate issue of repatriation for the Guantánamo refugees.[16] In fact, White House officials refused to recognize the Cubans as detained refugees. The officials saw them as migrants who had chosen to “hit” rafts and were now choosing to stay in safe haven camps.[17]

On the legal front, attorneys back in Miami were busy drafting a complaint. But, as attorney Roberto Martínez explained, “we didn’t have a client. Lawyers need clients.”

They found clients in the form of both legal organizations in Miami and individual refugees in Guantánamo. The Cuban American Bar Association served as lead named plaintiff, along with sympathetic refugees such as pregnant women, minors, and political dissidents under the Castro regime. One named plaintiff was a twelve-year-old girl, Lizbet Martínez, who played the Star-Spangled Banner on her violin.[18]

On October 24, 1994, the Cuban refugees and their attorneys filed CABA v. Christopher as a class action in the U.S. District Court for the Southern District of Florida, raising claims under the First and Fifth Amendments to the Constitution. The complaint invoked the refugees’ due process rights to seek asylum in the United States and to be free from indefinite detention. Additionally, against the new U.S. policy of “coerced repatriation,”[19] the complaint requested attorney access to the refugees for legal consultation.

Professor Koh described the legal theory as simple: informed consent. “Lawyers should talk to their clients, and clients should talk to their lawyers—especially if they’re going to get repatriated to political persecution.”

The morning after the filing, however, repatriations were underway. Twenty-three refugees, who previously had volunteered to return to sovereign Cuba, were boarding a plane in Guantánamo. The CABA plaintiffs moved for a temporary restraining order to block all repatriations, including the Government’s imminent flight.

“We had two hours to stop this plane,” recalled attorney Marcos Jiménez, who was with Professor Koh typing the TRO motion while Roberto Martínez hurried to court for oral argument.

One minute before the plane was scheduled to depart, District Judge C. Clyde Atkins ordered the Government to stop all repatriations, and the flight was aborted. Judge Atkins also gave attorneys “reasonable and meaningful access” to the “detained plaintiff refugees.”[20] In response, the Government moved the U.S. Court of Appeals for the Eleventh Circuit for reversal of Judge Atkins’ order.[21] On November 4, 1994, ruling from the bench, the Eleventh Circuit overturned the district court’s complete ban on repatriations, but maintained the ban for the vast majority of refugees.[22] Repatriations would be limited only to those who requested to return to Cuba. The appellate court also permitted attorneys to visit the camps.[23]

“We essentially bought about six months of time,” Professor Koh said.

Within days of the Eleventh Circuit’s ruling, attorneys flew from South Florida to the Guantánamo naval station to meet their clients. For each trip, a handful of attorneys were permitted to stay on the base for two days, and the military bused refugees from camps to base offices.[24] Attorneys met refugees in musty rooms with poor lighting and weak fans for ventilation.[25] Several attorneys complained the military delayed meetings or failed to bring in the refugees.[26]

Guantánamo visits proceeded nonetheless, and throughout November and December 1994, attorneys interviewed as many refugees as they could in whatever space the military provided. They aimed to gather evidence showing that repatriations were coerced and that all 33,000 Cuban refugees deserved direct entry into the United States. The refugees wrote poignant statements of their departure: “I was in search of freedom”;[27] “I left Cuba because of the Cuban government authorities”;[28] “there is no way I can return to my country”;[29] “[i]n Cuba I am forced by the police chief to throw myself in a raft because I do not agree with the politics of Castro.”[30] They also wrote of their discomfort in Guantánamo: “They have locked me up like a vulgar delinquent, which I am not . . . I do not understand this brutal incarceration and I do not know how long I can stand it.”[31]

While CABA attorneys continued to represent their clients in both Miami and Guantánamo, attorneys for Haitian refugees—who remained in Guantánamo camps alongside the Cuban refugees—moved to intervene in the litigation. [32] In addition to granting intervention, Judge Atkins permitted the attorneys access to any Haitian refugees who requested legal counsel.[33] The Government promptly appealed, and the Eleventh Circuit heard the consolidated matter.

On January 18, 1995, the Eleventh Circuit issued its opinion: Cubans and Haitians in Guantánamo “are without legal rights that are cognizable in the courts of the United States.”[34] The court considered three questions: (1) whether “migrants in safe haven outside the physical borders of the United States have any cognizable statutory or constitutional rights,” including due process; (2) whether attorneys have a First Amendment right to free association, such that the U.S. Government must allow access to the camps; and (3) whether Haitian refugees have equal protection rights.[35] The analysis turned on the assertion of constitutional rights by the refugees, individuals who were neither U.S. citizens nor within U.S. borders. Any rights of the attorneys would be predicated on those underlying claims.[36]

Examining the legal status of Guantánamo, the Eleventh Circuit found that, although the United States exercises perpetual jurisdiction and control over Guantánamo, it is not U.S. territory nor “functionally equivalent” to land within U.S. borders.[37] In the court’s view, all the U.S. Government had done was act graciously: “[p]roviding safe haven residency is a gratuitous humanitarian act which . . . has not created any protectable liberty or property interest against being wrongly repatriated.”[38] If ever the Government chose to act in a less gratuitous or less humanitarian fashion, the migrants could be shipped home.[39] Without due process protection, they had no basis on which to “rest a claim of right of counsel and information.”[40]

The Eleventh Circuit applied similar reasoning to the Haitian minors’ claim of equal protection.[41] The court held the children had no Fifth Amendment rights to challenge the Government’s exercise of parole discretion or any other decision.[42] Noting the Supreme Court previously had declined to apply the Fourth and Fifth Amendments extraterritorially,[43] the Eleventh Circuit concluded that “aliens who are outside the United States cannot claim rights to enter or be paroled into the United States based on the Constitution.”[44]

Thus, the Cuban and Haitian refugees in Guantánamo were judicially declared to be migrants standing outside U.S. territory and lacking any rights in U.S. courts.[45] The CABA opinion brushes over any hardships in the camps. The migrants were “beneficiaries of the American tradition of humanitarian concern and conduct,” receiving the military’s “goodwill” to “hopefully sustain and reassure them in their quest for a better life.”[46] In closing the door on the Cuban and Haitian refugees, the court warned they had no “legal answer” and would have to find non-judicial remedies to their plight.[47]

CABA plaintiffs appealed to the U.S. Supreme Court, but the Court denied their petition for writ of certiorari.[48] The Guantánamo refugees were left to seek help outside the court system—and they did so.

From the start of the rafter crisis, attorneys had pursued both political and judicial avenues of relief.

“The objective here was not to win a lawsuit,” Martínez said. “The objective here was to get a political solution for the Cubans who were detained in Guantánamo. The lawsuit was a tool.”

While the initial White House meeting had failed to yield a solution, later political pressures succeeded. Cuban refugees in Guantánamo were allowed to enter the United States under a May 2, 1995, humanitarian parole announced by the Clinton administration.[49] Most of the Haitian refugees had repatriated to Haiti after Jean-Bertrand Aristide returned to the presidency in October 1994, with the last group leaving Guantánamo in November 1995.[50] Under the May 2nd plan, the Administration allowed nearly all of the 20,000 Cuban refugees remaining in Guantánamo to enter the United States as “special Guantánamo entrants.”[51] Cuban refugees were paroled into the United States at a rate of 500 to 550 per week, on three weekly flights to Homestead Air Force Base.[52] On January 31, 1996, the last group left Guantánamo, and the U.S. Government closed the camps.[53]

As a “companion accord” to its May 2nd parole, the Clinton administration revised the Cuban Adjustment Act, adopting the “wet foot, dry foot” policy in effect today.[54] Cuban refugees intercepted at sea are returned to Cuba, while those reaching U.S. land can apply for permanent resident alien status in the United States.[55] Essentially, the “wet foot, dry foot” policy shifted the location where the Cuban Adjustment Act takes effect: now exclusively on land.[56]

The legacy of CABA v. Christopher extends even further, beyond the many lives affected by the rafter crisis and the ultimate success of the refugees in reaching the United States. The CABA decision—along with similar decisions regarding Haitian refugees interdicted at sea[57]—laid the groundwork for the Government’s use of Guantánamo after September 11, 2001, to detain enemy combatants captured in the war against al Qaeda and associated forces.

The Eleventh Circuit’s opinion “made the impression that Guantánamo was a land without law,” Professor Koh said. “Therefore, there became constant pressure to bring people there.”

Indeed, Guantánamo had been declared in CABA to be beyond constitutional reach for non-U.S. citizens.[58] After September 11th, with the United States at war and soldiers apprehending enemy combatants on the battlefield abroad, the opinion made it “administratively much easier” for the United States to choose Guantánamo as a detention site.[59] Detention camps opened in Guantánamo in January 2002 and have held a total of 779 detainees.[60]

Despite its denial of certiorari in CABA v. Christopher, the U.S. Supreme Court did finally weigh in on the legal status of Guantánamo. In 2004, the Court decided Rasul v. Bush and extended statutory habeas protections to Guantánamo detainees.[61] In 2006, the Court decided Hamdan v. Rumsfeld and afforded detainees who were to be tried by military commission “at least the barest of those trial protections that have been recognized by customary international law.”[62]

In 2008, the Supreme Court decided the lead detainee case of Boumediene v. Bush.[63] The Court held certain constitutional protections, specifically the writ of habeas corpus under the Suspension Clause, apply to non-citizens detained in Guantánamo. The impact of Boumediene is more procedural than substantive, as detainees have not found success filing habeas writs.[64] Still, the echo of CABA is evident, as the judiciary again considered whether the Constitution reaches Guantánamo. Given the contrast between the plaintiffs in CABA—refugees seeking a free life in the United States—and the petitioners in Boumediene—enemy combatants captured in wartime—the cases may be reconciled as adjudicating rights in different historical moments. The Constitution reaches Guantánamo for those in detention, but not for those in safe haven.

In the end, CABA v. Christopher’s place in history is secure. The case stands as both a public memory of the 1994-95 Cuban rafter crisis and a legal precedent for Guantánamo issues that continue to arise.

Christina M. Frohock is Professor of Legal Writing and Lecturer in Law at the University of Miami School of Law. She teaches and writes about Guantánamo legal issues. Previously, she practiced law at Sullivan & Cromwell in New York City and at both White & Case and Kenny Nachwalter in Miami. She earned her J.D. magna cum laude from New York University School of Law.


Additional Resources:

Related article by author Christina M. Frohock: “Brisas del Mar”: Judicial and Political Outcomes of the Cuban Rafter Crisis in Guantánamo, 15 Harvard Latino Law Review 39 (2012):

Video of panel discussion held at the University of Miami’s Cuban Heritage Collection:​.

Digital archive at the University of Miami’s Cuban Heritage Collection: The Cuban Rafter Phenomenon, .


[1] CABA v. Christopher, 43 F.3d 1412, 1419 (11th Cir.), cert. denied, 516 U.S. 913 (1995).

[2] Act of Nov. 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 (1966); Act of March 17, 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980); 28 U.S.C. §§ 6001-6010 (need date from author).

[3] CABA v. Christopher, 43 F.3d at 1417.

[4] Id.; U.S. Gen. Accounting Office, GAO/NSIAD-95-211, Cuba: U.S. Response to the 1994 Cuban Migration Crisis (1995) [hereinafter GAO Report] at 3.

[5] Administration, Lawyers Spar Over Cubans’ Return, Nat’l L.J., Nov. 7, 1994, at 4.

[6] Janet Reno, U.S. Attorney General, Press Briefing (May 2, 1995).

[7] Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, U.S.-Cuba, Feb. 23, 1903, T.S. No. 418; Lease of Certain Areas for Naval or Coaling Stations, U.S.-Cuba, July 2, 1903, T.S. No. 426; Treaty Defining Relations with Cuba, U.S.-Cuba, May 29, 1934, 48 Stat. 1683, T.S. No. 866.

[8] See United States Navy Fact File, Naval Station Guantánamo Bay, Cuba (Nov. 8, 2011).

[9] Id.; CABA, 43 F.3d at 1419; GAO Report at 3, 9.

[10] GAO Report at 9; Fabiola Santiago, No Way Out: Cubans Feel Frustrated, Forgotten, Miami Herald, Oct. 2, 1994, at 1A.

[11] Will More Rafters Be Eased into the United States?, Miami Herald, Oct. 29, 1994, at 28A.

[12] Cuba-United States: Joint Statement On Normalization Of Migration, Building On The Agreement Of September 9, 1994, 35 Int’l Legal Materials, 327, 329-30 (1996).

[13] GAO Report at 3-4.

[14] Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).

[15] Memorandum from Jorge L. Hernandez-Toraño to Comm. for Freedom of Guantanamo Detainees (Oct. 18, 1994).

[16] Id.

[17] Id.

[18] Andres Viglucci, Suit Demands Freedom For Cuban Rafters Panamá, Guantánamo Camps Called Illegal, Miami Herald, Oct. 25, 1994, at 1A.

[19] Class Action Complaint ¶¶ 54, 58-59, 64-67, CABA v. Christopher, No. 94-CV-2183 (S.D. Fla. Oct. 24, 1994) (No. 1).

[20] Order Granting Plaintiffs’ Emergency Motion for Temporary Restraining Order at 13, CABA v. Christopher, No. 94-CV-2183 (S.D. Fla. Oct. 31, 1994) (No. 44).

[21] Motion for Summary Reversal, CABA v. Christopher, 43 F.3d 1412 (11th Cir. 1995); Andres Viglucci, Judge Lifts Orders Halting Repatriations Ruling Affects 1,000 Cuban Detainees, Miami Herald, Nov. 4, 1994, at 1A.

[22] Order by the Court at 2, CABA v. Christopher, 43 F.3d 1412 (11th Cir. 1995).

[23] Id.

[24] Orlando J. Cabrera, Attorney, Memorandum re: Diary of Events at the United States Naval Base at Guantánamo Bay, Cuba November 7 to November 10, 1994 (Nov. 13, 1994).

[25] Id.

[26] Id.; Salvador G. Longoria, Summary re: Visit to Guantánamo, November 21-23, 2004.

[27] Counsel Request of Hector Medina Diaz, Guantánamo refugee No 000 833 057 (1994).

[28] Counsel Request of Mario Luis Fernandez Martínez, Guantánamo refugee No. 001 036 284 (1994).

[29] Counsel Request of Hector Medina Diaz, Guantánamo refugee No 000 833 057 (1994).

[30] Counsel Request of Raul Daniel Arenas, Guantánamo refugee No. 000 048 346 (1994).

[31] Counsel Request of Hector Medina Diaz, Guantánamo refugee No 000 833 057 (1994).

[32] CABA, 43 F.3d at 1420.

[33] Omnibus Order at 3, CABA v. Christopher, 43 F.3d 1412 (11th Cir. 1995).

[34] 43 F.3d at 1430.

[35] Id. at 1421.

[36] Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1513 (11th Cir. 1992).

[37] 43 F.3d at 1425.

[38] Id. at 1427 (emphasis added).

[39] Id. at 1427, 1429-30.

[40] Id. at 1427.

[41] Id. at 1427-29.

[42] Id. at 1429.

[43] United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950).

[44] CABA, 43 F.3d at 1428-29.

[45] Id. at 1430.

[46] Id.

[47] Id.

[48] CABA v. Christopher, 516 U.S. 913 (1995).

[49] Janet Reno, U.S. Attorney General, Press Briefing (May 2, 1995).

[50] Id.

[51] Id.

[52] GAO Report at 8.

[53] United States Navy Fact File, Naval Station Guantánamo Bay, Cuba (Nov. 8, 2011).

[54] Fact Sheet: Cuba-U.S. Migration Accord, U.S. Department of State, Bureau of Western Hemisphere Affairs (Aug. 28, 2000).

[55] Janet Reno, U.S. Attorney General, Press Briefing (May 2, 1995).

[56] Statement of Randy Beardsworth, former Coast Guard officer (July 22, 2011).

[57] Sale, 509 U.S. 155 at 187-88; Haitian Refugee Ctr., Inc., 953 F.2d at 1511; Haitian Refugee Ctr., Inc. v. Baker, 950 F.2d 685, 687 (11th Cir. 1991).

[58] CABA, 43 F.3d at 1424-25, 1430.

[59] Statement of attorney Seth Waxman (Jan. 2015).

[60] U.S. Gov’t Accountability Office, Guantánamo Bay Detainees: Facilities and Factors for Consideration if Detainees Were Brought to the United States (2012) at 7.

[61] 542 U.S. 466, 476, 478 (2004).

[62] 548 U.S. 557, 633 (2006). Six years later, the U.S. Court of Appeals for the D.C. Circuit overturned Hamdan’s conviction for material support for terrorism. Hamdan v. United States, 646 F.3d 1238, 1250-53 (D.C. Cir. 2012).

[63] 553 U.S. 723 (2008).

[64] Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009); Kiyemba v. Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010).

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