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Administration Is Rebuffed in a Ruling on Deportation (Or: A Small Win For Due Process)

It’s about time that a U.S. court insisted on transparency when it came to matters of the Bush administration.  Earlier this week, Thomas Vanaskie, a federal judge for Pennsylvania, prevented the government from deporting Sameh Khouzam to Egypt until the government was willing to subject itself to an “independent review” of Egypt’s torture practices.

The case, which will surely be appealed by the Bush administration, is potentially significant on many levels. http://www.uscourts.gov/ttb/oct05ttb/images/jugde%20vanaskie.jpgFor one, a court has finally stood up to the Bush administration’s insistence to take anything it says at face value.  In its deportation proceedings, the Bush administration has consistently relied on “secret” diplomatic assurances by a foreign government that it will not torture a person.  The court determined that these “secret” diplomatic assurances by themselves were — contrary to the government’s position — not sufficient to satisfy due process.

What was needed for the proper due process?  Independent, judicial review.  To the Bush lawyers who have been living in the constitutional void for the last several years, due process is encompassed in the Fifth and Fourteenth Amendments.  Nothing in those Amendments says anything about suspending “due process” for the purpose of “safety” or the “war on terror.”

To be sure, it’s not entirely clear what the scope of that “judicial review” will be.  Perhaps it will take the guise of an in camera review of the government’s “secret” diplomatic assurances.  Whatever guise it takes, the fact that the judicial branch has at least stressed for proper due process — i.e., judicial review and scrutiny over detention issues — is a victory, however small, for the rule of law.    

A federal judge in Pennsylvania on Thursday blocked the government’s efforts to deport a Coptic Christian who said he would be tortured if he were returned to Egypt. The ruling was a rebuff to the Bush administration’s practice of relying on confidential assurances to send people to countries that have been known to practice torture.

The judge ruled that the government’s unwillingness to allow an independent review of Egypt’s assurances denied him due process.  The man, Sameh Khouzam, 38, of Lancaster, Pa., was convicted of murder in absentia in Egypt. He denies the murder accusation, however, and contends that he was repeatedly detained and tortured in Egypt because he refused to convert to Islam.

Philip G. Schrag, a professor of law at Georgetown University and an expert on asylum issues, said the ruling was significant.“The importance of this case,” he said, “lies in its rejection of the Bush administration’s claim that secret diplomatic assurances by a foreign government that it will not torture a person preclude judicial review.”The American Civil Liberties Union, which represented Mr. Khouzam, echoed that view. And Marc D. Falkoff, assistant professor of law at Northern Illinois University in DeKalb and counsel for 16 Yemenis held at Guantánamo Bay, Cuba, said the ruling could have sweeping implications for those detained at Guantánamo.

“It’s tremendously important,” Mr. Falkoff said. “It’s not a binding precedent outside the jurisdiction of the Third Circuit but the ruling has persuasive authority in any federal court and, without a doubt, it will be brought to the attention of any federal judge who has a case pending where a detainee or prisoner is challenging the government’s right to transfer him to a country where he might be tortured.”

Egypt’s government gave diplomatic assurances that Mr. Khouzam, who fled to the United States almost 10 years ago, would not be tortured upon his return. The office of Immigration and Customs Enforcement decided last June to deport him.  In June, a spokesman for the immigration and customs agency said the assurances made by Egypt were confidential.

In his ruling on Thursday, the judge, Thomas I. Vanaskie of the Middle District of Pennsylvania, said that without an impartial and binding review of those assurances, the procedures established to give protection under the Convention Against Torture “would be a farce.”  Groups like Human Rights Watch and the A.C.L.U. have argued that the use of torture in Egypt is so routine and well-documented that deporting Mr. Khouzam would expose him to harsh treatment and would amount to a violation of the Convention Against Torture.

Kelly Nantel, a spokeswoman for the immigration and customs agency, said that it was reviewing its appeals options and that it had won a five-day stay on Mr. Khouzam’s release from detention in York, Pa.  The Egyptian government denies that Mr. Khouzam faced persecution for his Christian faith, and a government spokesman said in June that Mr. Khouzam would serve a prison term upon his return, based on the murder conviction.

Mr. Khouzam first heard of the murder accusation when he arrived in the United States in February 1998. He was detained for the next eight years by immigration authorities. In 2004, a federal appeals court denied Mr. Khouzam asylum, but allowed him to stay in the United States because he risked being tortured in Egypt.  In early 2006, Mr. Khouzam was released and has recently worked as the controller for a real estate developer in Lancaster. He was detained when he went to immigration authorities for a routine visit on May 29.

The quoted article was published by the New York Times and can be found here.

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About Mr. Cheeseburger 9000

I am Mr. Cheeseburger 9000. I like my burgers medium-rare with a side order of french fries.

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