I have promised my readers--all two of them at this point--substantive posts on immigration issues. Consider this "war story" the first, and an explanation how I became such an absolutist on the torture issue.
An alien refugee
in immigration court has three separate legal grounds to seek relief from "removal" (the current legal term for "deportation") due to persecution in the home country. They are:
- "Asylum" based on past persecution and/or reasonable fear of future persecution on account of a "protected ground" such as political opinion;
- "Withholding of Removal," based on proof that the alien faces a substantial risk (greater than 50%) of severe injury or death because of persecution on a protected ground if removed; and
- "Withholding under the Convention Against Torture" (CAT) formally known as the "United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment." The United States is a signatory to the Convention and is thus bound by this treaty because it is now part of American law.
CAT defines "torture" as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [My emphasis]
One files an asylum claim in immigration court using
an I-589 Form, and in almost all I-589 cases the battle is over whether the alien is entitled to asylum (it is a discretionary remedy and normally has a one year filing deadline) or straight withholding of removal relief. Only rarely does the question whether particular mistreatment is "severe" enough to be considered "torture" become a real issue because the other forms of relief are broader and preferable to CAT. Still, every asylum advocate claims CAT as a last line of defense, even if proof of direct involvement in torture by a foreign government official is hard to find.
A new asylum case is referred to me by an NGO in New York. The case comes from Sri Lanka, the island nation south of India
where the Sinhalese majority and Tamil minority have been been locked in a violent ethnic conflict for over 25 years. My client is a man in his 20s who writes a long polemic advocating partition, so that the Tamils can have their own nation-state on the northern half of the island.
The client's story is that he is arrested by uniformed state security forces and taken to a large hut in a remote area outside of town. There he is interrogated about his political beliefs, activities and associations, and is punished for writing his pamphlet. He is repeatedly threatened with summary execution by one of the uniformed men, who waves a pistol in his face. He is also repeatedly struck during a long interrogation in which the men curse at him for being a Tamil separatist.
That evening a rope is tied to the man's handcuffs, and the other end is thrown over a ceiling beam. The security men pull on the rope to hoist the man up, then tie it off so that he is left with his feet barely able to touch the ground. While he is in this position one of the security men urinates into a saucer, puts it to the man's lips, and tries to force him to drink.
The man is let go the next morning, but told to report to a government security office in a week's time. Instead, his family hires a smuggler to get him out of the country on false papers, and the smuggler gets him on a flight to New Jersey. At Newark Airport he claims asylum and is immediately cuffed hand and foot by our immigration service and transported to the
Elizabeth Detention Center where he will be "detained" (jailed) until
one of the two immigration judges permanently stationed at the facility hears and decides his case.
After a jail visit and initial client interview it's my job to assist him in preparing his I-589. It looks like there's a good CAT claim. There's evidence of government agent mistreatment and the purpose is both interrogation and punishment. The one open question is whether the mistreatment is bad enough to qualify under CAT as
"severe pain or suffering, whether physical or mental."My legal research causes my to conclude that the man's ordeal arguably meets the CAT tests for both physical and mental torture. Beatings and suspension qualify as physical torture,
see The threat of imminent death meets the test for mental torture.
8 C.F.R. § 208.18. There is an open question whether this one incident is sufficiently lengthy in duration or has resulted in "prolonged mental harm" severe enough to qualify as torture under CAT, but there's a case to be made here, without doubt, and I'd rather be on my side of the argument than the Government's.
As so ofter happens, we never reach the CAT issue at the final bearing before the immigration judge. The court denies asylum as a matter of discretion because it does not like the tenor of the client's writings, but it grants withholding of removal, and the question of relief under CAT falls by the wayside.
What doesn't fall by the wayside are my own questions about what our Government is doing to other "detainees" in Guantanimo, Abu Gharib and elsewhere. If I'm able to argue that what my client suffered at the hands of Sri Lankan security forces is torture, how can I pretend that the reports of what our miltary has done to suspected terrorists and insurgents isn't torture as well?
Why is being made to stand for eight hours, being subjected to "belly slaps," being threatened by dogs, being stripped naked and smeared with simulated "menstrual blood"
over a prolonged period of time not torture?
I am not able to shake the conclusion that the actions reportedly done by our military, the so-called "harsh interrogation techniques," clearly meet the definition of torture under CAT and that any argument by Bush Administration lawyers to the contrary is pure sophistry. It just "blows me away" that the kinds of things foreign governments do to some of my alien clients, for which I am seeking the protection of U.S. law, are the same kinds of thing our Government is doing to aliens in its custody, while claiming that it's "legal."
Once this realization sinks in I find it impossible to avoid becoming an anti-torture absolutist.
Our nation has no business engaging in any conduct that can be considered torture, regardless of motivation or cause. It's that simple, and the only position possible for a person who believes in morality and the rule of law in America.