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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--
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