Supreme Court told that Clinton backs Bush Haiti policy he once called 'cruel'


WASHINGTON -- For the first time, the Clinton administration mounted a broad, unqualified legal defense yesterday of the forced return of fleeing Haitians to their homeland -- a policy President Clinton as a candidate called "cruel" and invalid.

Standing before the Supreme Court, a career Justice Department lawyer made an argument that had been gone over closely by the White House, fully supporting the president's power to have Haitians picked up at sea and put back on their land without a chance to ask for asylum.

Maureen E. Mahoney, the deputy U.S. solicitor general, argued that the powers of the president "are very broad to control the travel of aliens" who might be headed toward the United States.

After the court hearing, the White House issued a lengthy statement defending its turnabout in policy. The statement described the policy as one "for exceptional circumstances" only, to "be adjusted when conditions permit."

At the court, Ms. Mahoney urged the justices to "permit the 20 military vessels [now standing off Haiti to seize 'boat people'] to operate under the direction of the Coast Guard and the president, and not of the courts."

A federal appeals court has struck down the policy, accepting refugees' claims that it violates a 1980 U.S. refugee protection law and a similar United Nations refugee "protocol" that the United States signed in 1967. The Supreme Court is allowing the policy to stay in effect while its legality is under study. A final ruling is expected by summer.

The policy was started May 23 by President George Bush, after a dramatic rise in Haitian boat migration to the United States and after a temporary refugee camp at the U.S. Navy base at Guantanamo, Cuba, had almost filled.

Although Mr. Clinton as a candidate repeatedly denounced it and vowed to change it swiftly after becoming president, Ms. Mahoney defended it yesterday as if there had been no change in administrations and as if there never were official doubts about its legality.

In arguing that the policy was a necessary exercise of "emergency power," she repeatedly discussed it as the policy of "the president," at times meaning Mr. Bush and at times meaning Mr. Clinton.

A high-level source at the Justice Department said that Ms. Mahoney's plea was "very much a topic of intense scrutiny and discussion" with White House lawyers.

Mr. Clinton himself, talking to reporters at the White House, remarked of his past complaints about Mr. Bush and the policy: )) "Maybe I was too harsh in my criticism of him, but I still think there's a big difference between what we're doing in Haiti and what they were doing."

The latest White House statement on the issue noted plans to spend $5 million to speed up the reviews inside Haiti of Haitians' requests for political refugee status, so that "high priority cases" could be finished in about "seven working days" instead of two months or more.

The document also mentioned the March 16 meeting between President Clinton and ousted Haitian President Jean-Bertrand Aristide to "review the progress" of negotiations to restore democracy in Haiti.

In her defense of presidential power, Ms. Mahoney argued that foreigners who have not yet reached U.S. shores should not even be allowed to come into U.S. courts to challenge presidential actions. Congress has given no indication that it wanted to allow such challenges or that it wanted "to limit the scope of the president's emergency powers" to deal with situations such as the mass movement of Haitian "boat people" toward the U.S. after Father Aristide was overthrown in September 1991 by the Haitian military.

She said the policy was designed to avert "hundreds and possibly thousands" of drownings at sea by Haitians fleeing in rickety boats.

Harold Hongju Koh, a Yale University law professor representing the fleeing Haitians, bitterly denounced the forced return policy but never once mentioned Mr. Clinton's prior denunciation of it. He said the policy was "tantamount" to making the U.S. military "accomplices to the persecutors" of Haitians who wished to find asylum.

He said a government argument in favor of the plan, that it was effective and should be beyond U.S. court review, could be made also if the government simply chose to pick up the Haitians at sea and shot them or drowned them intentionally.

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