Global Policy Forum

By Nina Bernstein

A New Jersey case before a federal court of appeals has linked the Bush administration's methods of interrogating prisoners in anti-terrorism efforts to a sharp change in the standards of humanitarian law at home, possibly affecting the chances of hundreds of immigrants to win protection from deportation under the Convention Against Torture.

In 2002, the Bush administration sharply narrowed the definition of torture, as part of its aggressive approach to terrorism. In allowing use of harsher interrogation techniques, it said that torture required a "specific intent" to inflict severe pain, not merely the infliction of severe pain.

At the same time, though, many immigrants have sought to win the right to stay temporarily in the United States by asserting that they face the likelihood of torture in their native lands. And now Napoleon Bonaparte Auguste, a Queens man with a cocaine conviction who is facing deportation to Haiti from a jail in New Brunswick, N.J., is arguing that that narrowed definition of torture could wrongly lead to his deportation.

Mr. Auguste's motion, filed in the United States Court of Appeals for the Third Circuit, in Philadelphia, argues that in upholding his deportation in January, a three-judge panel of the court wrongly bowed to the narrow definition of torture in a 2002 Justice Department memorandum.

That memo was withdrawn and replaced on the Justice Department's Web site late last December, after its disclosure caused a public outcry. But human rights lawyers say the memo's definition of torture is still haunting immigration case law. Mr. Auguste's request for a rehearing by the full court is an uphill battle, since such rehearings are rarely granted.

No one disputes that for ex-convicts like Mr. Auguste, 28, who completed a 10-month jail sentence for the attempted sale of cocaine, deportation to Haiti is a grim prospect. Under Haitian policy, federal and immigration courts have found, deportees with a criminal record are placed in indefinite preventive detention, without food, water or toilets, in cells so crowded that they cannot lie down; prisoners are subjected to police beatings, and sometimes are burned with cigarettes, choked, hooded and given electric shocks. Some have died in custody.

But is that tantamount to torture under the law? The answers have varied in the last four years. The Third Circuit panel, while likening the conditions to "a slave ship," ruled in January that indefinite detention in Haiti did not constitute torture because Haitian officials intended the detention to prevent crime, not specifically to inflict severe pain and suffering amounting to torture.

Their holding, the judges acknowledged, was "in tension" with the language of another Third Circuit panel's decision in a torture claim case, directly rejecting the "specific intent" interpretation. To resolve the contradiction, Mr. Auguste's motion seeks a rehearing in his case before all the appellate judges of the circuit, which covers New Jersey and Pennsylvania.

The motion is drawing unusual attention from scholars of human rights law because it comes amid reports that the Central Intelligence Agency, under a secret presidential directive, has been transferring terror suspects to be interrogated in foreign countries known for torture.

Anti-torture laws bar the United States from handing over people, even criminals, to countries where they are likely to experience torture. Torture is defined in the law as the intentional infliction of severe pain or suffering, with the acquiescence of a public official, whether for interrogation, punishment, intimidation, coercion, "or for any reason based on discrimination of any kind." The law explicitly rules out making exceptions during wartime or public emergency, but it excludes from the definition of torture suffering that is accidental or the consequence of a "lawful sanction."

Based on the 2003 decision rejecting specific intent, other courts granted protection to Haitians in cases like Mr. Auguste's last year. Only a rehearing by the full court can resolve the conflict, said Renee C. Redman, one of Mr. Auguste's lawyers and the director of the International Institute of Connecticut. "This is a byproduct of the attorney general's efforts to sign torture out of existence," she said.

Even in Haitian cases very similar to Mr. Auguste's, interpretation has fluctuated sharply since 1999, when the United States fully enacted domestic laws enforcing a version of the international Convention Against Torture, which it ratified in 1994.

By late 2001, the Board of Immigration Appeals, which is run by the Justice Department, had ruled in several such cases that indefinite detention in Haiti was torture under the law, halting the deportations. But in 2002, narrower definitions took hold, said Lori A. Nessel, a legal scholar at Seton Hall University who has tracked the shifting immigration decisions.

Professor Nessel, who also directs the university's Immigration and Human Rights Clinic, was one of several scholars who said there was a sudden convergence between a longer-standing domestic agenda of quicker deportation of illegal immigrants and "criminal aliens," and the administration's resolve to "take the gloves off" in seeking intelligence that could prevent terrorist attacks. She said it not only affected ex-convicts, but women fleeing harm based on their sex, like genital cutting, rape and domestic violence, who often do not fit asylum categories.

Among those denied protection, for example, was Takky Zubeda, a woman who had fled from Congo to New York after being raped by the soldiers who decapitated her father and brother. But in 2003, Ms. Zubeda won an appeal to the Third Circuit appellate court, which rejected a "specific intent" requirement.

Those advocating restrictions on immigration embraced the tougher requirements for protection, arguing that thousands had used frivolous petitions to delay deportation. In 2003, some Republican lawmakers in Congress, led by John N. Hostettler, an Indiana congressman who is chairman of the House subcommittee on immigration, tried to change anti-torture laws to allow the deportation of criminals and terrorist suspects to countries where they were likely to be tortured.

The State Department opposed such a change, saying it would violate international and domestic law. Immigrants who pose risks to national security or society can be detained if they cannot be deported, officials said, and deported as soon as conditions in their countries improve.

Mr. Auguste, who has not been in Haiti since he was 11, said he just wanted to stay in jail in New Jersey. "I'm very, very afraid," he said. "As far as me being detained in the United States of America, it's O.K. because I broke the law. But to be detained and tortured out there, where I don't have no family, no friends, from what I read, they might as well just kill you instead."