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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Background Briefing Supreme Court To Consider Haitian Interdiction Case; Challenge Raises Fundamental Questions About U.S. Policy June 9, 1993 At 10 A.M., Tuesday, March 2, the United States Supreme Court will hear arguments in McNary v. Haitian Centers Council, a lawsuit challenging the Clinton Administration's Haitian interdiction program. Professor Harold Koh of Yale Law School will argue the case for the Haitians. Historical Background The Haitian Interdiction Operation, as the government calls it, was created by Ronald Reagan in 1981. Although President Reagan's Executive Order authorized the Coast Guard to pick up at sea and return to Haiti any Haitians who planned to violate U.S. immigration laws, it pledged that, in accordance with international law obligations, refugees from political persecution would not be returned to Haiti against their will. The quality of the refugee screening process that was put in place pursuant to that pledge was challenged in federal court during the intervening decade, as only two dozen of the 28,000 Haitians interdicted during that time were ever identified as possible refugees. This was during a period that included the repressive regimes of Jean-Claude Duvalier, Henri Namphy and Prosper Avril in Haiti. The anti-Haitian bias in the I.N.S.' administration of the asylum program during this period has been recognized by several courts. After the coup that ousted President Aristide in September 1991, thousands of Haitians fled in boats on the high seas from renewed persecution. With the screening process under legal challenge, some 11,000 Haitians were eventually "screened in" as having credible claims for asylum -- roughly one-third of all who were interdicted. Background to McNary v. Haitian Centers Council The present suit, however, was sparked by a new Executive Order signed by President Bush at his vacation home in Kennebunkport, Maine, on May 24, 1992. The "Kennebunkport Order," as it has come to be known, stripped away any pretense that genuine political refugees would not be returned to likely persecution after interdiction. Where, under the old program, there had been a mandatory duty on the Attorney General to ensure that no legitimate asylum-seeker was forced back to Haiti, the Kennebunkport Order provided only that "the Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent." Since the Order was issued, the Attorney General has saved not even one interdicted Haitian from repatriation using this discretionary power. "Nor," the Order states, "shall this order be construed to require any procedures to determine whether a person is a refugee." Under the new Bush program, President Aristide himself, or prominent democratic activists still living in hiding in Haiti, would be returned without any opportunity to claim asylum. Later in the week the Kennebunkport Order was issued, a team of legal organizations went to court in the Eastern District of New York, seeking to stop the Coast Guard's forced repatriations of every person who attempted to flee Haiti by boat without any opportunity to identify themselves as asylum seekers. The Lowenstein International Human Rights Clinic at Yale Law School, the American Civil Liberties Union's Immigrants' Rights Project, the Center for Constitutional Rights, the Lawyers' Committee for Civil Rights-San Francisco, and the law firm of Simpson, Thacher and Bartlett participated. The same coalition was already in the midst of a lawsuit challenging the legality of the government's incommunicado detention of refugees "screened in" under the old policy at Guantanamo Bay Naval Base. Some 264 "screened in" refugees still languish at Guantanamo many months later, because they or a relative have been diagnosed as HIV positive, and are therefore being excluded from the United States. The same legal team will go to trial in Federal District Court in Brooklyn on March 8 to challenge their indefinite detention. Legal Arguments and Decisions In legal papers filed in lower federal courts and the Supreme Court, the legal coalition argues that the post-Kennebunkport interdiction program, with its total absence of any provision for refugee screening, violates the law of non-refoulement (non-return to conditions of persecution). The principle of non-return is central to the U.N. Protocol on the Status of Refugees, which Congress incorporated into domestic legislation in the Refugee Act of 1980, as the Supreme Court has previously recognized. Non-refoulement became a tenet of international law following the failure of the nations of the world to respond adequately to the refugee crises caused by the Second World War. One such incident in particular stands out in light of present policy toward Haitian refugees: the United States' refusal to allow the St. Louis, a ship carrying Jewish refugees from Nazi Germany, to land at New York Harbor in 1939. Because it could not find landfall, the ship eventually was forced to return to Germany, and many of its passengers then perished in German concentration camps. The exact parallel to the current policy toward Haitian refugees, however, would be if the United States had sent the Coast Guard out to seize the St. Louis and tow it back across the Atlantic, discharging its refugee passengers directly into the hands of the Nazi authorities. There can be no dispute that many among the thousands of Haitians whom the Coast Guard has forced back to the military authorities in Haiti since last May have been genuine political refugees. As of the day the new Order was issued, the I.N.S. itself was identifying approximately one-third of all interdicted Haitians as having credible political asylum claims. We also argue that the policy violated the Constitution's guarantee against racial and national origin discrimination by the government. Haitians are the only national group that the United States government systematically prevents from fleeing acknowledged persecution in their country. The Coast Guard blockade of Haiti in place today, which allows oil tankers in while preventing frightened people from getting out, is unprecedented in the history of this country and indeed, has no parallel anywhere else in the world. The government's principal response is that the obligation of non-return applies only within United States territory. Thus, they contend, their actions do not violate the law because the Kennebunkport Order calls for the Coast Guard not just to operate in U.S. waters to keep fleeing Haitians out, but rather to blockade Haiti in international waters to keep Haitians in. The district judge felt powerless to halt the forced repatriations because of a higher court precedent in the Second Circuit Court of Appeals, and denied the injunction that we sought. However, he indicated distaste for the new interdiction policy in the sharpest possible terms: "It is unconscionable that the United States should accede to the [U.N.] Protocol and later claim that it is not bound by it. This Court is astonished that the United States would return Haitian refugees to the jaws of political persecution, terror, death and uncertainty when it has contracted not to do so. The Government's conduct is particularly hypocritical given its condemnation of other countries who have refused to abide by the principle of non-refoulement. As it stands now, [the U.N. Protocol] is a cruel hoax and not worth the paper it is printed on ..." We appealed, and last summer the Second Circuit Court of Appeals declared that the present interdiction program violates the plain language of the Refugee Act of 1980. The relevant provision of the Act reads, "The Attorney General shall not deport or return any alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." The Second Circuit decided that those words mean what they appear to say -- that "shall not return" means "shall not return," and that "any alien" includes those Haitians taken into U.S. custody outside of U.S. territory. Following the Second Circuit's instructions, the District Court later that day enjoined executive officials from forcing back to Haiti any individual who had not been allowed an opportunity to present his or her claim for political asylum. The government immediately sought a stay of that order, and the Supreme Court granted such a stay a few days later pending its review of the case. Thus, the Kennebunkport Order program of interdiction and summary return of all who attempt to flee Haiti by boat, continues to this day. The Clinton Administration's Stance Throughout his campaign, President Clinton attacked the Bush Administration's interdiction policy, not just as immoral, but also as illegal. "This process must not stand," Clinton said on May 27, 1992. "It is a blow to the principle of first asylum and to America's moral authority in defending the rights of refugees around the world." And on July 29, 1992, Democratic nominee Clinton said, "The Court of Appeals made the right decision in overturning the Bush Administration's cruel policy of returning Haitian refugees to a brutal dictatorship without asylum hearings ... We respect the right of refugees from other parts of the world to apply for political asylum, and Haitians should not be treated differently." In mid-January, however, only days before his inauguration, President-elect Clinton announced that he would continue the Bush Administration's policy of interdiction and summary return of all fleeing Haitians. This reversal was justified in part by reference to a report of Haitians drowning at sea as they attempted to escape. Such a rationale is puzzling, given that the reported drowning occurred under the present policy. In fact, Haitians may be driven to sail an increasingly treacherous course while the refugee blockade remains in place, as they must avoid the U.S. Coast Guard if they are to reach safe haven. The new Administration has never yet publicly explained whether it believes the present policy can be legally defended. Yet a legal representative of President Clinton is scheduled to appear in the Supreme Court on March 2, presumably to argue for the reversal of a Second Circuit decision that the President has termed legally "correct." --endit-- ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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