High Court Hears Arguments on Haitians : Refugees: Justice Dept., appearing before Supreme Court, wants to continue Bush era policy of intercepting and repatriating immigrants.

A Justice Department attorney told the Supreme Court Tuesday that a President possesses “emergency powers” authorizing him to order the seizure and repatriation of U.S.-bound refugees on the high seas, regardless of the reasons they fled their homeland.

“To stop the migration and to save lives, the President has determined that the policy of direct repatriation must continue,” said Maureen E. Mahoney, a deputy solicitor general.

The arguments were part of the federal government’s appeal of a July ruling by a federal appeals court in New York, which declared that seizures and repatriations conducted without hearings violate the Refugee Act of 1980, which prohibits the deportation or return of any “alien (whose) life or freedom would be threatened” by political persecution.

At stake is whether the Clinton Administration can continue the policy, first enacted by the George Bush Administration last May, to stem the tide of Haitian refugees.

Ironically, the position argued before the court Tuesday had been denounced last summer by presidential candidate Bill Clinton, who called it “cruel” and “wrong.”

Since the election, however, Clinton has reversed his position.

He acknowledged again Tuesday that he may have been “too harsh” in criticizing Bush and maintained that the seize-and-return policy is best for the Haitians. To permit them to continue trips on the high seas “would be consigning a very large number of Haitians, in all probability, to some sort of death warrant,” Clinton said.

Without a confirmed attorney general at the Justice Department, Clinton’s aides took a largely hands-off approach to the Supreme Court case and let Mahoney, a career lawyer, proceed with the appeal. During the courtroom argument, there was no mention of the change in administrations.

The government’s lawyer argued that foreigners do not have legal rights until they reach U.S. shores. In addition, she said, the 1980 law does not restrict the powers of the President, only those of the attorney general.

But a lawyer representing the Haitians denounced the Bush-Clinton policy as illegal and unjust.

“We have erected a floating Berlin Wall around Haiti,” Yale University law professor Harold Hongju Koh told the justices. “It is not a rescue (of the Haitians). It is aiding and abetting their persecutors.”

Koh argued that foreigners become refugees as soon as they flee their homeland, not when they arrive on U.S. shores. He also dismissed the Administration’s claim that the Bush policy has proven “effective” in stemming the tide of refugees.

“Drowning them or shooting them would also be effective,” Koh said. “All we are asking is that they be given some form of safe haven.”

Until May, Bush Administration lawyers had believed that Haitians were entitled to a brief hearing on a Coast Guard cutter to determine their reasons for fleeing. If they were attempting to escape poverty, they could legally be sent home. However, if they had reason to fear political persecution--a requirement for obtaining refugee status--they were taken to the U.S. Naval Base at Guantanamo Bay and given a further hearing.

When the facility filled up, however, Bush abruptly announced the new seize-and-return policy.

Acting on a lawsuit filed on behalf of the Haitians, the U.S. 2nd Circuit Court of Appeals ordered that each of the Haitians be given a hearing to determine their reasons for fleeing.

On Aug. 1, the Supreme Court in turn voted by a 7-2 margin to put that ruling on hold while they considered the issue. It appeared then that the likely election of Clinton would change the policy, thus settling the court case.

But a mass migration to Florida of thousands of impoverished Haitians could have caused political troubles for the new President.

In July, only Justices Harry A. Blackmun and John Paul Stevens criticized the Bush policy. But during Tuesday’s argument, Justice David H. Souter also appeared skeptical of it as he questioned the Administration’s lawyer.

The outcome probably depends on the votes of Justices Sandra Day O’Connor and Anthony M. Kennedy, neither of whom tipped their hands during the argument in the case (Sale vs. Haitian Centers Council, 92-344).