WASHINGTON -- The government asked the Supreme Court Tuesday to let it continue forcing all Haitian boat people back to their homeland, defending a policy President Clinton had called 'cruel' and illegal during his campaign for the White House.
Deputy Solicitor General Maureen Mahoney told the justices during oral arguments that despite Clinton's campaign pledge to reverse the policy, its continuation is a 'humanitarian effort' needed to save 'hundreds and possibly thousands' of Haitian lives that could be lost at sea.
But a lawyer for the Haitians said the government has been violating international law and its own immigration laws since May 23, when a hard-line stance toward Haitian refugees was strengthened by an order from President Bush.
That so-called Kennebunkport Order allows for all Haitians picked up on the high seas to be forcibly returned to Haiti, without regard to the validity of individual claims for political asylum.
The 2nd U.S. Circuit Court of Appeals in New York this summer ruled that the Kennebunkport Order violates the law.
But on Aug. 1, the Supreme Court granted a stay of that decision -- allowing the continued repatriation of the Haitians -- until it decides the case. A ruling is expected by early July.
Later Tuesday, Clinton defended his continuation of the Kennebunkport Order and conceded he may have been 'too harsh in my criticism of (Bush).'
'Something that was never brought up before but what is painfully apparent is that if we did what the plaintiffs in the court case want, we would be consigning a very large number of Haitians in all probability to some sort of death warrant,' Clinton said.
Clinton also maintained there is a 'big difference' between how his administration treats the Haitians and how the Bush administration treated the the Haitians, including faster processing for those few refugees who are now being allowed into the country.
The issue of U.S. treatment of the Haitian boat people was before the Supreme Court twice last term, but never given a full hearing. The Bush administration ultimately was allowed to continue its policy of conducting on-ship screenings to decide if any immigrants might achieve political asylum, and returning those who did not.
Under U.S. law, refugees qualify for asylum by showing a legitimate fear of persecution based on their political beliefs.
But the May 23 order allows the government to return any Haitian captured at sea without on-ship screenings and without regard for an individual's claims.
By the government's own count some 30 percent of the boat-people prior to the Kennebunkport Order passed that initial stage of qualifying for asylum, but it claims most simply were fleeing economic hardship.
During the presidential campaign, Clinton said he was 'appalled' by the 'cruel' Kennebunkport Order, which he called a 'blow to the principle of first asylum and to America's moral authority in defending the rights of refugees around the world.'
But Clinton announced before his Jan. 20 inauguration that he would not rescind Bush's order, claiming he would instead work to restore democracy to Haiti.
Some 20 Coast Guard cutters are now stationed 13 miles off the Haitian coast, intercepting all who flee the violence-wracked, impoverished nation and forcing them back onto their shores.
The policy does not exempt even those facing obvious political persecution at the hands of the Haitian military leaders, who took power from the country's first democratically elected president, Jean-Bertrand Aristide, in a Sept. 30, 1991, coup.
Mahoney said the president, as commander in chief of the armed forces, should not be limited by any immigration law for actions taken outside U.S. borders.
She added that were the blockade to be lifted, as many as 100,000 Haitians could board dangerous boats and try to reach the Florida coast.
But Harold Hongju Koh, a lawyer representing the Haitians, said the Bush -- and now Clinton -- order is 'is not a polite, bloodless policy.'
During hour-long oral arguments Koh told the justices of a client he said was driven off a Coast Guard cutter with firehoses, fingerprinted by the Haitian military and then beaten in his own bed that night. He is now in hiding.
'This is not rescue,' said Koh. 'This is aiding and abetting their prosecutors.'
Human rights groups including Amnesty International -- which Clinton cited during the campaign -- have urged the justices to reject the government's argument, noting widespread arbitrary arrests, torture and murder in Haiti.
Emotional issues aside, the court must decide whether such a presidential order violates immigration law or binding international agreements.
The Refugee Act of 1980 says that the government 'shall not...return any alien' to a country where he or she would face political persecution. But Mahoney said it applies only to those already in the United States.
Koh countered that people become refugees under U.S. law 'not when they make it to the United States...(but) when they escape their borders.'
While the government has set up a center at the U.S. Embassy in the Haitian capital of Port Au Prince to process political asylum claims and 'hundreds' have been sent to the United States, Mahoney acknowledged those whose claims are rejected there do not have the same right to appeal they would have on U.S. soil.
Koh added that there are some 700 islands in the 700 miles separating Haiti from the United States, but that a 'floating Berlin Wall' now prevents boat people from going anywhere to escape the Haitian dictators.
'Ours is a nation of refugees. Most of our ancestors came here by boat,' said Koh. 'If they could do this to the Haitians they could do this to any of us.'NEWLN: ------NEWLN: 92-344 Chris Sale, acting Commissioner, Immigration and Naturalization Service, et al., vs. Haitian Centers Council Inc., et al.