Refugee Policy: Legal but Unfair

The U.S. Supreme Court has upheld the Bush Administration’s unfortunate policy of forcibly repatriating Haitian refugees without allowing them to formally ask for political asylum. But though the policy has been ruled legal, its fundamental unfairness is transparently obvious. The sooner it ends the better.

The court’s ruling was based on a literal reading of the U.S. Immigration and Nationality Act of 1952 and a 1968 U.N. treaty on the treatment of international refugees. The court held that neither is violated by having the Coast Guard intercept Haitian refugees at sea and return them home.

In writing for an 8-1 majority, Justice John Paul Stevens focused strictly on the language of the two documents and conceded that the repatriations could be seen as contrary to the “spirit” of both. But, the court found, because the language of neither the law nor the treaty specifically prohibit refugee repatriations, they are allowable under the broad discretionary powers of the executive branch--specifically of former President George Bush, who first ordered the repatriations, and President Clinton, who has kept the policy in effect.

It is hard to argue with the court’s strict reading of laws and treaties. And it is difficult to counter the humane arguments Bush used when he ordered the repatriations begun in 1992, after an influx of refugees from Haiti resulted from a military coup that overthrew popularly elected President Jean-Bertrand Aristide. Because many of the refugees were fleeing in dangerously overcrowded boats, Bush argued that repatriations could save lives by discouraging further voyages. No doubt they did, to some degree. But just as surely they forced some Haitians to remain in or return to a country where Aristide supporters were being killed with impunity. At best, Bush’s decision it was only a temporary and unsatisfactory solution to the refugee exodus and Haiti’s political crisis. It remains that.

To the shame of the U.S. government, the policy meant Haitian refugees were denied treatment equal to that of refugees from Cuba, China and other oppressive regimes. Clinton, who rightly criticized Bush’s Haitian policy during his campaign, should focus on putting an end to the Haitian exodus not by turning back refugees but by helping return Aristide to power and helping restore a viable democracy in Haiti.