Sunday, January 13, 2008

egypt will NOT get khouzam back for torture, thanks to the ACLU! -- 01.10.08

but first -- an irony alert:

. . .President George W. Bush has asserted
that “[f]reedom from torture is an inalienable
human right. . .”

President George W. Bush,
Statement by the President

on United Nations International
Day in Support of Victims of
Torture, July 2, 2003.

a federal district court judge in
the middle district of pennsylvania

has ruled in favor of the a.c.l.u.,
finding that the cheney-bush admin-
istration may not deport khouzam, an
almost-certainly innocent foreign national
to egypt, where it is highly-likely he
would be subjected to additional torture,
all despite bogus secret diplomatic "assurances"
from the egyptian government, to the contrary.

that is the good news. the bad news is that
he spent seven long months in custody in 2007,
even after the very same determination had been
made on his case in 2004, and he had been finally
ordered habeas release -- in khouzam v. ashcroft,
361 F.3d 161, 171 (2d Cir. 2004) -- he was ordered
set free. and he was, in 2006. that was, until
BIA/INS grabbed him, yet again, in may
of 2007 -- and, without any newly-
admissable evidence to establish the
administration's position that he
ought to be deported back to egypt.

folks -- this is why habeas corpus exists.
this is the core of its protection -- release
of the body, from capricious acts of the crown.

yes -- the crown. in this case, dick cheney's.

it is extremely unfortunate that we would
need to phrase it in those terms, it in 2008;
shocking, that our own government would ignore
the age-old rule against double jeopardy, and
ironic, that our president -- in 2003 -- uttered
the opening quote above, given all that we
have learned about our taped tortures (and the
destruction of the evidence of the same), since.

here are a few quotes, from judge vanaskie's
ruling, setting khouzam free, on thursday past
[the first two paragraphs below simply
repeat conclusions reached in 2004 -- and
that, itself is noteworthy -- a federal
judge re-deciding a case already previously
decided in favor of khouzam -- in a deport-
ation matter, where torture would result]:
. . .The fact that Khouzam has been accused of a crime does not in itself render any acts inflicted against him incapable of constituting torture. Further, the BIA’s July 24, 2000 finding that the Egyptian police have routinely tortured, abused, and killed suspected criminals to extract confessions is completely at odds with the BIA’s conclusion that the state action requirement has not been met.

Applying the correct legal standard to the BIA’s findings de novo, we conclude, as the BIA itself previously did, that Khouzam will more likely than not be tortured if he is deported to Egypt. To the extent that the Egyptian police are acting in their official capacities -– as is strongly suggested by the fact that their goal is to extract confessions -– then the acts are carried out ‘by. . . a public official. . . acting in an official capacity.’ (CAT Art. 3) To the extent that these police are acting in their purely private capacities, then the ‘routine’ nature of the torture and its connection to the criminal justice system supply ample evidence that higher-level officials either know of the torture or remain willfully blind to the torture and breach their legal responsibility to prevent it. . .

On May 29, 2007, while reporting as required at the BICE facility in York, Khouzam was taken into custody and informed that his deferral of removal had been terminated four months earlier based on diplomatic assurances from the Government of Egypt that he would not be tortured. Khouzam was informed that he would be removed to Egypt as early as June 1, 2007. . .

The Government, of course, is obligated to apply the non-refoulement policy here. Because Congress contemplated there would be impartial review of the United States' compliance with the non-refoulement obligation, it necessarily follows that the diplomatic assurances should be subject to some review process. Otherwise, the review process that has been prescribed by regulations as intended by Congress would be a farce. The Government could, as it did in this case, dispute the likelihood of torture, have its position rejected by the impartial adjudicators, and then preempt the impartial ruling by a secret diplomatic assurance that, by its very nature, has no legal effect or enforcement mechanism. . .

Nor did Congress indicate that the Executive could circumvent processes intended to assure our nation’s compliance with its treaty obligations.
Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid problems unless such construction is plainly contrary to the intent of Congress. . .

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg., 485 U.S. 568, 575 (1988).

This Court has already ruled that the applicable legislation is capable of being interpreted as not precluding habeas review of the decision to terminate Khouzam’s deferral of removal. 497 F. Supp. 2d at 623. In reaching this result, this Court referred to its obligation to construe the applicable legislation to avoid the substantial constitutional concerns posed by an interpretation that forecloses judicial review of termination of deferral of removal based upon secret diplomatic assurances, if an alternative construction is “fairly possible.” I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001).

The analysis in this Court’s June 15th decision is pertinent here. FARRA is plainly cable of being interpreted to require impartial review in relation to action implicating the obligation of non-refoulement, such as termination of deferral of removal based upon diplomatic assurances. The Government’s interpretation of FARRA to preclude any impartial review of the sufficiency of Egypt’s diplomatic assurance, as embodied in 8 C.F.R. § 208.18(c)(3), cannot stand. . .

Finally, the Government suggests that habeas review concerning the treatment a fugitive would likely receive in the requesting country might compromise the confidentiality of certain sensitive communications between the Executive and a foreign government. However, we have no reason to doubt that district courts can adequately protect the confidentiality of such communications by considering them in camera, as the district court intends to do here. . .

Indeed, even the case upon which Government relies to advance the “rule of noninquiry” recognized that the Rule is not absolute, and that there may be situations where the prospect of torture is such that judicial review would be warranted. United States v. Kin-Hong, 110 F.3d 103, 112 (1st Cir. 1997). This case, involving a prior judicial determination of a likelihood of torture, presents just such a scenario. . .

Even if Congress had intended to foreclose review of a CAT claim in the context of a diplomatic assurance, the Due Process Clause of the Fifth Amendment requires some level of scrutiny of the assurance by an impartial tribunal. The Fifth Amendment proclaims that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . . .” U.S. CONST. amend. V. “Liberty” within the protection of the Fifth Amendment encompasses "fundamental rights found to be deeply rooted in our legal tradition. . ." Washington v. Gluckburg, 521 U.S. 702,722 (1997). . .

It cannot be denied that the interest in freedom for torture is such a right. As noted above, the right to be free from torture is jus cogens. President Bush has described it as an “inalienable human right.”

Indeed, “[e]very violation of a person’s bodily integrity is an invasion of his or her liberty.” Washington v. Harper, 494 U.S. 210, 237 (1990) (Stevens, J., concurring in part, dissenting in part). Freedom from torture falls squarely within the concept of “liberty” protected by the Fifth Amendment.

A human being does not forfeit the right to be free from torture because he is ineligible for admission into this country. The right is not lost because of a conviction in absentia. Freedom from torture cannot be abridged even where the person flees a valid prosecution. Freedom from torture is a “fundamental right,” Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980), surely protected by the Fifth Amendment regardless of a person’s immigration status.

The issue in this case does not concern any right of Khouzam to remain in the United States. The right at stake here is to be free from torture. Thus, the holding in Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953), – that “‘whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned’” – has no application here. The Government could not justify torture of an arriving alien on the ground that his interest in life and liberty is not protected by the Fifth Amendment. So, too, the Government cannot return an alien to a country where there is a likelihood he will be tortured without affording the alien an opportunity to be heard.

Khouzam has submitted uncontradicted evidence that “the United States is the only government that purports to deny a person subject to transfer the right to challenge the reliability and sufficiency of diplomatic assurances against torture before an independent, impartial body.” (Declaration of Julia Hall, Exhibit 6 to the Petitioner’s Supplemental Brief, Dkt. Entry 53, at ¶6.) According to Hall, Austria, Canada, Germany, Netherlands, Russia, Sweden, Switzerland, Turkey and the United Kingdom, all parties to CAT, provide for judicial review of the reliability and sufficiency of diplomatic assurances. . .

Even in times of war, “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations. . ., it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004). “The Court’s repeated statements that decisions by the political branches in the immigration area are largely immune from judicial control,’ or are ‘subject only to narrow judicial review,’ clearly do not altogether preclude judicial scrutiny, and this principle applies to executive as well as Congressional action.” Jean v. Nelson, 727 F.2d 957, 967 n.11 (11th Cir. 1984). What was said by our High Court more than 150 years ago in affirming the availability of habeas corpus review in the extradition context resonates still today:
Public opinion ha[s] settled down to a firm resolve . . . that so dangerous an engine of oppression as secret proceedings before the executive, and the issuing of secret warrants of arrest founded on them, . . . and then, an extradition without an unbiased hearing before an independent judiciary, were highly dangerous to liberty and ought never to be allowed in this country. . .

In re: Kaine, 55 U.S. 103, 113 (1852).

Khouzam’s “inalienable human right” to be free from torture is worthy of protection under the Due Process Clause. . .

“At the core of due process are the requirements of notice and a meaningful opportunity to be heard.” Jarbough v. Attorney General of U.S., 483 F.3d 184, 190 (3d Cir. 2007). . .

Removal proceedings have concluded in this matter. The Government cannot detain an inadmissible alien indefinitely once removal proceedings have ended. Clark v. Martinez, 543 U.S. 371, 386 (2005). There is no basis for finding a significant likelihood that Khouzam will be removed in the reasonably foreseeable future.

Accordingly, Khouzam’s motion for release shall be granted. . .

. . .An appropriate Order follows.

/s/ Thomas I. Vanaskie
Thomas I. Vanaskie
United States District Judge

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