A powerful group of Cuban-American lawyers launched a strong challenge in court Wednesday to the Clinton administration's policy of refusing asylum to 30,000 detained Cuban refugees.
The case threatens to overturn current U.S. efforts to stem the flow of refugees from Cuba, after a massive exodus in August and September when thousands of Cubans fled the island in small boats and homemade rafts to take advantage of a longstanding U.S. policy of granting entry to those fleeing the Communist government.
Federal Judge C. Clyde Atkins heard arguments but issued no decision on the fate of the refugees held in camps at the U.S. Naval Base at Guantanamo Bay, Cuba, and at a U.S. military base in Panama.
The lawyers, led by former U.S. Attorney Roberto Martinez and immigration expert Harold Hongju Koh, a Yale University law professor, hope to persuade Atkins that the refugees have rights under U.S. law, including political asylum. On Monday they filed a class-action lawsuit on behalf of the refugees.
The matter is being followed closely by the Cuban community in Miami, which seems to be gearing up for a major assault on the Clinton administration's policy. Among the court spectators were dozens of lawyers from the influential Cuban American Bar Association. "Everyone is upset over this," said Otto de Cordoba, a Miami lawyer who was born in Cuba and left in 1960 at age 4.
"Everyone wants to be involved in this lawsuit. There is big muscle here. Most of these people are important partners in big Miami law firms," said de Cordoba, who is regional president of the Hispanic National Bar Association.
Martinez argued that the refugees should be allowed access to lawyers to advise them of their rights and assist those who wish to file for asylum. He also sought an extension to a temporary court order Atkins issued Tuesday that bans the Clinton administration from returning the refugees to Cuba. That restraining order halted the repatriation of 23 refugees only minutes before their plane was to leave Guantanamo. Forty-two Cubans were repatriated earlier this month on two other flights.
Justice Department lawyer Allen Hausman told the court that these refugees had chosen voluntarily to be repatriated. He said that 1,014 refugees at Guantanamo have signed written requests asking to be repatriated and that the government was confident that the requests were made in a well-informed and voluntary manner, following a procedure "to ensure that they genuinely want to return."
But attorneys for the refugees argued that the Clinton administration is effectively "coercing" the refugees to leave Guantanamo by denying them access to good legal advice and keeping them detained in unbearable conditions.
As for the great majority of refugees who do not wish to return to Cuba, Hausman argued that the refugees are subject to the new policy of the Clinton administration, which since August 19 has denied entry to the United States for Cuban refugees picked up at sea. It was that policy shift, coupled with the Cuban government's pledge to stop refugees leaving its beaches, that eventually halted the flow in September.
Under the revised policy, Hausman said refugees at Guantanamo must return to Cuba in order to legally file for immigration to the United States.
At the heart of the discussion is a very narrow issue. Do Cubans held at Guantanamo have due process rights under the U.S. Constitution? If they do, their lawyers argue that the refugees _ especially those with close relatives in Florida _ must be allowed the right to claim asylum in the United States.
"Our point is quite simply that Cuban refugees have due process rights because they are subject to the control of the U.S.," said Koh. "Our government has established a reverse Ellis Island. Now we have bona fide political refugees who are coming and being detained indefinitely at an offshore island with the option only of returning back to the very place they fled from.
"If there is no law on Guantanamo then they (the refugees) are simply objects. They have constitutional rights and human rights. They are being held by our government, under our flag and under our Constitution," Koh said.
But Hausman bluntly rejected that the refugees had any rights, arguing that because they had been picked up at sea they had not technically reached U.S. soil. "The Cubans who are in safe havens in Cuba are without rights under the U.S. Constitution," he said. "Benefits, rights and procedures are for those who make it to our shores."
Hausman said that for security reasons, the United States could not allow unlimited access for lawyers to Guantanamo, which he described as "a U.S. military base in a country with which we do not have friendly relations."
He added that Doris Meissner, Immigration and Naturalization Service commissioner, had offered in a letter Monday to Martinez to allow a maximum of six lawyers to visit Guantanamo for two days to interview refugees.
"That would be like standing in the middle of the Orange Bowl with a megaphone to advise my clients," said Martinez, who asked Atkins to grant "regular and continuous access" to the camps. "We have 58 attorneys ready, willing and able to go, at their own expense," he said.
Atkins asked if the lawyers planned to interview all 30,000 refugees. "As many as we can," replied Martinez.
When Atkins rules, perhaps later today, his decision could have repercussions far beyond the fate of the 30,000 refugees. Were he to find in favor of the refugees' lawyers, Atkins could undermine current U.S.-Cuba policy at a critical time for the Clinton administration. That could be bad news for Florida Gov. Lawton Chiles, who has backed the Clinton administration policy to block the flood of refugees.
Ironically, Atkins heard many of the same arguments applied to Haitian refugees two years ago when they were picked up fleeing the political crisis in that Caribbean nation.
The good news for the plaintiffs in the Cuban case is that he ruled that the Haitians did have rights, even though they were only being detained on U.S. Coast Guard cutters. The bad news for the Cuban-American legal community, however, is that his decision was reversed on appeal by the Supreme Court.
Both Cuba and the United States have been criticized for their treatment of Cuban refugees. In a report Wednesday, the group Human Rights Watch condemned Cuba for its persecution of political dissidents and attacked the Clinton administration for violating the rights of the refugees.
"By framing the issue as one of "choice' between returning to Cuba and detention, the U.S. is ignoring the fact that many of those at Guantanamo and Panama are dissidents or others likely to face persecution if returned to Cuba," the report said.