Federal Court Rejects Bush Administration's Attempt To Deport Torture Victim Without Due Process

December 5, 2008 12:00 am

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ACLU Successfully Challenges Government Over Egypt’s “Diplomatic Assurances” Not To Torture

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PHILADELPHIA – Rebuffing the Bush administration’s efforts to deport Egyptian torture victim Sameh Khouzam, a federal appeals court today upheld his right to challenge Egypt’s “diplomatic assurances” that it will not torture Khouzam upon his return. This is the latest development in an ongoing American Civil Liberties Union lawsuit on behalf of Khouzam.

Last January, in the first decision of its kind, a federal district court sided with the ACLU and ordered the government to stop the deportation of Khouzam based on secret and unreliable promises and release him under conditions of supervision. However, the Bush administration appealed this ruling, claiming that the executive branch has unfettered authority to deport Khouzam and to detain him indefinitely pending his legal proceedings.

“This is a significant victory for due process and the rights of all people – citizens or not – to be free from torture,” said Amrit Singh, staff attorney with the ACLU Immigrants’ Rights Project, who argued the case before the court earlier this year. “It is also a stinging rejection of the government’s attempts to deprive the judiciary of its constitutional obligation to conduct meaningful review in the face of unilateral assertions of executive power.”

Khouzam, a Christian who came to the United States in 1998 fleeing religious persecution in Egypt, was granted protection from deportation under the Convention Against Torture (CAT) in 2004 after a federal appeals court found that he would likely be tortured if sent back to Egypt. Despite this finding, as well as State Department reports showing that Egypt routinely engages in torture, the U.S. government tried to summarily deport Khouzam to Egypt based on diplomatic assurances the U.S. claims to have received from the Egyptian government that it asserts are “sufficiently reliable” to protect him from torture.

In today’s opinion, the U.S. Court of Appeals for the Third Circuit stated, “the Government did not permit Khouzam to see the written diplomatic assurances that had been obtained from Egypt, and provided no information pertaining to the Government’s reasons for crediting those assurances…we find no record supporting the reliability of the diplomatic assurances that purportedly justified the termination of his deferral of removal.”

“This is a great victory for the rule of law. The appeals court recognized that the Bush administration cannot simply eliminate the role of the courts in reviewing the government’s actions – that kind of power grab flies in the face of every principle of American law,” said Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project, who also argued this case before the court.

Ratified by the U.S. in 1994, and implemented by domestic legislation, the Convention Against Torture prohibits the U.S. from transferring a person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The U.S. government is attempting to use diplomatic assurances – in Khouzam’s case and others – to circumvent its treaty obligations, and transferring individuals to foreign countries without judicial review.

“The court was absolutely right to reject the Bush administration’s extraordinary claim that it can send a man to a country where he will almost certainly be tortured without any mechanism to review the government’s actions,” said Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project.

In Khouzam’s case, neither he nor his lawyers have seen the Egyptian assurances that are the basis for terminating his CAT protection. Nor has the U.S. government offered any explanation for why these assurances would be deemed sufficiently reliable to protect Khouzam from torture. Indeed, Khouzam did not receive any notice that his CAT protection was being terminated until May 29 of last year, when, upon appearing for a routine check-in with immigration authorities, he was taken into detention and provided with a one-paragraph explanation from Julie Myers, Assistant Secretary of Immigration and Customs Enforcement, informing him that he could be removed within 72 hours.

Attorneys representing Khouzam are Singh, Gelernt and Rabinovitz of the ACLU Immigrants’ Rights Project, Vic Walczak and Mary Catherine Roper of the ACLU of Pennsylvania and Morton Sklar of World Organization for Human Rights USA.

Friend-of-the-court briefs in support of the ACLU’s case have been submitted by Human Rights Watch, Amnesty International, Center for Constitutional Rights, International Commission of Jurists, International Federation for Human Rights, World Organization Against Torture, Redress, American Center for Law & Justice, European Centre for Law & Justice and respected scholars of international human rights law.

Many prominent lawmakers and advocacy groups of all political stripes have written letters on behalf of Khouzam, including Sen. Bob Casey (D-PA), Sen. Arlen Specter (R-PA), Rep. Joseph Pitts (R-PA), the Traditional Values Coalition, Concerned Women for America, the Coptic Assembly of America and the Institute on Religion and Public Policy. Many of these letters as well as the ACLU’s brief and other documents related to the case are available at: www.aclu.org/immigrants/gen/35805res20020307.html

Today’s decision is available at: www.aclu.org/immigrants/gen/37987lgl20081205.html

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