U.S. Human Rights Policy towrd Haiti, house hearing,, 9 April 1992, iii+215p

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U.S. Human Rights Policy towrd Haiti, house hearing,, 9 April 1992, iii+215p
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U.S. HUMAN RIGS P Y T D
U.S. HUMAN RIGHTS POLICY TOWARD HAITI


HEARING
BEFORE THE
LEGISLATION AND NATIONAL
SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON

GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SECOND CONGRESS
SECOND SESSION

APRIL 9, 1992

Printed for the use of the Committee on Government Operations


US DEPOS


68-236 CC


9 L JUL 3 '93 A
U w
0335-A



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993


For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-040975-6
















COMMITTEE ON GOVERNMENT OPERATIONS
JOHN CONYERS, JR., Michigan, Chairman


CARDISS COLLINS, Illinois
GLENN ENGLISH, Oklahoma
HENRY A. WAXMAN, California
TED WEISS, New York
MIKE SYNAR, Oklahoma
STEPHEN L. NEAL, North Carolina
DOUG BARNARD, JR., Georgia
TOM LANTOS, California
ROBERT E. WISE, JR., West Virginia
BARBARA BOXER, California
MAJOR R. OWENS, New York
EDOLPHUS TOWNS, New York
BEN ERDREICH, Alabama
GERALD D. KLECZKA, Wisconsin
ALBERT G. BUSTAMANTE, Texas
MATTHEW G. MARTINEZ, California
DONALD M. PAYNE, New Jersey
GARY A. CONDIT, California
PATSY T. MINK, Hawaii
RAY THORNTON, Arkansas
COLLIN C. PETERSON, Minnesota
ROSA L. DELAURO, Connecticut
CHARLES J. LUKEN, Ohio
JOHN W. COX, JR., Illinois


FRANK HORTON, New York
WILLIAM F. CLINGER, JR., Pennsylvania
AL McCANDLESS, California
J. DENNIS HASTERT, Illinois
JON L. KYL, Arizona
CHRISTOPHER SAYS, Connecticut
STEVEN SCHIFF, New Mexico
C. CHRISTOPHER COX, California
CRAIG THOMAS, Wyoming
ILEANA ROS-LEHTINEN, Florida
RONALD K. MACHTLEY, Rhode Island
DICK ZIMMER, New Jersey
WILLIAM H. ZELIFF, JR., New Hampshire
DAVID L. HOBSON, Ohio
SCOTT L. KLUG, Wisconsin

BERNARD SANDERS, Vermont
(Independent)


JULIAN EPSTEIN, Staff Director
DONALD W. UPSON, Minority Staff Director


LEGISLATION AND NATIONAL SECURITY SUBCOMMITrEE
JOHN CONYERS, JR., Michigan, Chairman
GLENN ENGLISH, Oklahoma FRANK HORTON, New York
STEPHEN L. NEAL, North Carolina JON L. KYL, Arizona
GERALD D. KLECZKA, Wisconsin CHRISTOPHER SAYS, Connecticut
CARDISS COLLINS, Illinois STEVEN SCHIFF, New Mexico
RAY THORNTON, Arkansas
COLLIN C. PETERSON, Minnesota
ROBERT J. KURZ, Deputy Staff Director
JAMES C. TURNER, Associate Counsel
MIRANDA G. KATSOYANNIS, Professional Staf Member
CHERYL A. PHELPS, Professional Staff Member
ERIC M. THORSON, Professional Staff Member
JOSEPH CIRINCIONE, Professional Staff Member
BENNIE B. WILLIAMS, Clerk
CHERYL G. MATCH, Clerk
JAMES L. GEORGE, Minority Professional Staff














CONTENTS

Page
Hearing held on April 9, 1992 ...................................................................... 1
Statement of:
Becelia, Joseph, Director, Office of Caribbean Affairs, Department of
State ........................................................................................................ 42
Conyers, Hon. John, Jr., a Representative in Congress from the State
of Michigan, and chairman, Legislation and National Security Sub-
committee: Opening statement .......................................................... 1
Johnson, Harold J., Director, Foreign Economic and Assistance Issues
of the Division of National Security and International Affairs, U.S.
General Accounting Office, accompanied by David Martin, Assistant
Director; Susan Gibbs, Assignment Manager; Wylie Neal, Ned George,
and Nina Fantl, general counsel's office ................................... ....... 7
Koh, Harold H., professor, school of law, Yale University, New Haven,
CT, accompanied by Sarah Cleveland, student .......................................... 97
Kurzban, Ira, legal counsel, Haitian Refugee Center, Miami, FL ............ 67
McNary, Gene, Commissioner, Immigration and Naturalization Service,
U.S. Department of Justice, accompanied by Ricardo Inzunza, Deputy
Commissioner, and Grover J. Rees III, general counsel .......................... 25
O'Neill, William, deputy director, Lawyers Committee for Human Rights,
New York, NY ......................................................... ............................ 57
Rangel, Hon. Charles, a Representative in Congress from the State of
N ew York ............................................................... ............................. 2
Letters, statements, etc., submitted for the record by:
Becelia, Joseph, Director, Office of Caribbean Affairs, Department of
State: Prepared statement ................................................................. 44
Horton, Hon. Frank, a Representative in Congress from the State of
New York: Prepared statement ............................................ ............. 5
Johnson, Harold J., Director, Foreign Economic and Assistance Issues
of the Division of National Security and International Affairs, U.S.
General Accounting Office: Prepared statement ................................... 12
Koh, Harold H., professor, school of law, Yale University, New Haven,
CT: Prepared statement ............................................................................... 102
Kurzban, Ira, legal counsel, Haitian Refugee Center, Miami, FL: Pre-
pared state ent ....................................................................... 71
McNary, Gene, Commissioner, Immigration and Naturalization Service,
U.S. Department of Justice: Prepared statement .................................... 28
O'Neill, William, deputy director, Lawyers Committee for Human Rights,
New York, NY: Prepared statement ...................................... ............ 60
APPENDIX
Material submitted for the hearing record .......................................................... 207




Js OEPOS


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U.S. HUMAN RIGHTS POLICY TOWARD HAITI

THURSDAY, APRIL 9, 1992
HOUSE OF REPRESENTATIVES,
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m, in room
2203, Rayburn House Office Building, Hon. John Conyers, Jr.
(chairman of the subcommittee) presiding.
Members present: Representatives John Conyers, Jr. and Glenn
English.
Subcommittee staff present: Robert J. Kurz, deputy staff director
and Rosalind Burke-Alexander, clerk.
Full committee staff present: Shirelle Ismail, associate counsel.
OPENING STATEMENT OF CHAIRMAN CONYERS
Mr. CONYERS. Good morning. The Subcommittee on Legislation
and National Security will come to order.
We meet today to receive the preliminary results of our inves-
tigation into U.S. human rights policy on Haiti. This investigation
grew out of a belief that the current United States approach on
Haiti has been a failure. It is a failure because the Bush adminis-
tration's efforts to restore democracy in Haiti seem to be a low pri-
ority, and because the administration has refused to grant a safe
haven to Haitians who are fleeing violence and repression in that
country.
There is no dispute that the military dictatorship in Haiti has ef-
fectively repressed the political opposition. Our State Department
has accurately labeled the overthrow of Haitian President Aristide
illegal. Yet the Bush administration continues repatriating Hai-
tians back to the brutality and control of that illegal government.
Yesterday, 351 more Haitians were picked up at sea. This means
that Haitians continue to be willing to risk their lives with the
sharks of the sea rather than face the dictators of the military at
home. The U.S. response to this bravery has been the largest ship-
ment of individuals away from our shores in our history. This pol-
icy is a dark cloud over the bright light of freedom that normally
shines from the Statue of Liberty.
In February, I asked congressional investigators from the Gen-
eral Accounting Office to conduct an investigation into this situa-
tion. I did so because I had doubts about that continual assurances
from the administration that all Haitians with well-founded fears
of persecution are being protected. I regret, but am not surprised,
that we have found these assurances are hollow.
(1)







Our investigators have discovered that many Haitians with cred-
ible fears of persecution, people approved by our own government
to stay here, have been sent back to Haiti because of the chaos of
our immigration system.
We have exposed cases in which Haitians returned voluntarily to
Haiti without knowing that they had been found to have credible
claims. They never knew they had a right to stay in this country
and were sent back.
We have uncovered clerical errors, failures to file decisions in a
timely way, and repatriations that occurred before claims were in-
vestigated.
This is not a situation in which innocent errors can be corrected
or small mistakes swept under the carpet. These are individuals
who have been returned to Haiti to face the real potential of vio-
lence and death. How many more cases like this are there? What
happened to these people?
This hearing is intended to get to the bottom of this situation.
I want to know why this has happened, who is responsible for
these mistakes, and what is going to be changed.
In February, I met with Attorney General William Barr and
urged that he use the power under current law to grant temporary
protective status to the Haitians. Regrettably, this has not come
about. The United States has granted "save haven" to refugees in
20 instances over the last 32 years. The forced repatriation of Hai-
tians is no different from any of those cases. I believe we should
treat Haitians in the same manner we treat other democrats flee-
ing violence and persecution.
I hope that the information we receive today in the public will
cause the President and the Attorney General to realize that the
errors that they are making are creating life and death decisions
for many thousands of people. I hope that the administration will
be as dismayed as am I that Haitians are not being given the pro-
tection intended under our law.
With that, I would like to welcome my colleague from New York,
the Honorable Charles Rangel, who has worked on this subject tire-
lessly and has been to Guantanamo and Haiti. And we would invite
him to make his comments at this time.
Good morning, sir.
STATEMENT OF HON. CHARLES RANGEL, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
Mr. RANGEL. Good morning, Mr. Chairman. Let me first thank
you for the courtesy that you have extended to me, to apologize to
the witnesses that have been scheduled, and promise all of you
that I intend to be brief.
I think your opening statement pretty much covered the remarks
I wanted to make. Of course, being the Chair, you have a higher
degree of the need to be responsible in your statement than I, be-
cause there was an assumption, I think, in your statement that we
were expecting to treat Haitians seeking political asylum or seek-
ing freedom the same way that we treat all other people that were
seeking the protection of the Statue of Liberty.
I think that most Americans agree that we have a different
standard when it comes to the Haitians. And that is why my sym-







pathies go to the Immigration and Naturalization System because
they are forced to do a political job and make it appear as though
they're going through a process.
You know, when the Haitians were on the customs boat they had
good-thinking immigration officers there. I don't know how many
were trained in Creole, but when you find sick people on the high
seas in shark-infested waters and you're asking them to state to
you what their political activity was so you could determine wheth-
er or not they could come to the United States, I think it's abun-
dantly clear that this is a heavy burden that you put on immigra-
tion officials.
Mr. CONYERS. Well, we're not talking about their good-hearted
intentions. We're talking about clerical and administrative errors
that have been committed in doing even what little can be done
under the existing laws.
Mr. RANGEL. Well, if I'm allowed to complete my thought, my
thought is that a political decision has been made in the White
House that they don't want these people in the United States of
America. It really doesn't make any difference what they try or try
not to do. I doubt whether any of them are concerned with upward
mobility that they're going to provide a way for the Haitians to get
into the United States.
Mr. CONYERS. Well, my dear colleague, I don't think that the
White House authorized the INS to be sloppy in their keeping of
the records. I don't think anybody told them to lose files, and that's
what we're going to hear about today.
Mr. RANGEL. Well, I think the Chair is misinterpreting the
thrust of my message. I'm only trying to make an appeal to the
INS to come forward and explain the political pressures that I be-
lieve that they have been working under.
The fact that they have been understaffed, the fact that they
have received this mandate, the fact that the Justice Department
would send into court the Solicitor General to overturn decisions
that have been made in favor of decent conduct surrounding the
treatment of these people would indicate the high political priority
that the administration places, especially in this time of the politi-
cal calendar, to keep the people out of the country.
And at the same time, I conclude by saying that in September
during the time of the coup, the President of the United States,
along with Secretary Baker, gave it top priority to make certain
that we put embargoes in place and that we restore democracy and
restore Aristide back to Haiti. The truth of the matter is that since
then very little has been said by or heard from the President or the
Secretary of State.
In addition to that, the normal pressures and things that we do
in order for the political and economic power of the United States
to be felt by countries that are opposed to our foreign policy has
not been done. The embargo, in fact, has been partially withdrawn
due to political pressures that have been placed on the U.S. Gov-
ernment by our business people.
In addition to that, Haitian military and business people who
have supported the coup are allowed not only to enjoy having their
assets sheltered in the United States of America but, in addition







to that, have not had their visas taken away. And we know who
these people are.
Mr. CONYERS. I quite agree with you.
Mr. RANGEL. And so what I'm saying, Mr. Chairman, is I want
to congratulate you. And I really made a very poor attempt to be
sarcastic as it relates to the work that was being done by INS. But
I think that you and I do agree about what has happened to these
people who have been forced to return to their home in Haiti. The
height of hypocrisy was demonstrated when the State Department
indicated that they had no evidence that these people were being
mistreated. The fact is that we had no way of ever knowing what
the heck was happening to these people.
Mr. CONYERS. Right.
Mr. RANGEL. I know that from talking with the Haitians. I know
that from going to our Embassy in Haiti. And I do know that the
more attention that we focus on this problem that good people, Re-
publican and Democrat, should move forward and let America be
what it can be by treating these Haitians the same way we would,
as you said in your opening statement, with the same caliber of hu-
mane treatment as we treat European and other refugees.
And I thank you for the time.
Mr. CONYERS. You're more than welcome. We know your continu-
ing interest, and I hope that we can deal with the political issues
that you have raised time and time again in every committee in the
Congress. Thank you very much, Mr. Charlie Rangel.
Mr. RANGEL. Thank you, Mr. Chairman.
Mr. CONYERS. I have a statement of the ranking member of the
subcommittee, Frank Horton of New York, which will be introduced
into the record without objection.
[The prepared statement of Mr. Horton follows:]









Statement of

HON. FRANK HORTON

before the
Subcommittee on Legislation and National Security

April 9, 1992



Mr. Chairman, we have a very challenging task before us today as
this subcommittee examines the policies and processes the
Administration employs with regard to the thousands of Haitians who
have fled their homeland and who continue to flee in large numbers.

Today we will hear very Important testimony from General
Accounting Office investigators who have done a tremendous job of
examining the Issues and responding to the concerns of this
subcommittee. They spent time here in Washington, in Miami, in
Guantanamo Bay and in Haiti giving close examination to immigration
laws, processing procedures and claims of persecution. I look forward
to their testimony and would like to thank them up front for their
thorough and timely work.

The United States has had to react swiftly to the crisis in Haiti
which began with the coup last September ousting President Aristide.
Thousands upon thousands of Haitians have fled their country on rickety
boats in the past six months. Just last week, nearly 500 Haitians were
rescued at sea in an 18-hour period. Had they not been intercepted by
the Coast Guard, chances are that only half would have survived the
journey.

How does the Administration prepare for such massive surges in
the number of fleeing refugees especially when no one can predict
how many might be fleeing tomorrow, or next month, or next year?
Given a limited pool of resources, but an unlimited number of those
needing them, what level of care, treatment, and due process can we
demand of our system?






6


-2-


There is no doubt that our resources have been strained. The GAO
found that mistakes were made in the processing and repatriation of
these refugees. Could these mistakes have been avoided? What
options are available to address the mistakes? How can we best be
prepared to handle such crises in the future?

These are the questions we will be seeking answer to today.







Mr. CONYERS. Our first panel of witnesses is the Director for the
Foreign Economic and Assistance Issues of the National Security
and International Affairs Division, Mr. Jim Johnson. Mr. Johnson
is accompanied by David Martin, Ms. Susan Gibbs, all of who are
with the General Accounting Office. And we accept their testimony
without objection into the record. Please raise your right hand as
we administer the oath.
[Witnesses sworn.]
Mr. CONYERS. Thank you very much. I want to begin by com-
mending the GAO for the incredibly fast turnaround time that they
gave this matter. I think it flows from their recognition that life
and death is involved in the findings that they are bringing to our
attention.
And even with that importance I know of the hundreds of re-
quests that are backed up in GAO, many from this committee it-
self, you were able to respond swiftly by making this a priority. Di-
rector Johnson, this committee is indebted to you, as probably is
the country. And I'm sure the Haitian people are appreciative of
the spotlight that we have thrown on this one particular part of the
whole immigration process.
STATEMENT OF HAROLD J. JOHNSON, DIRECTOR, FOREIGN
ECONOMIC AND ASSISTANCE ISSUES OF THE DIVISION OF
NATIONAL SECURITY AND INTERNATIONAL AFFAIRS, U.S.
GENERAL ACCOUNTING OFFICE, ACCOMPANIED BY DAVID
MARTIN, ASSISTANT DIRECTOR; SUSAN GIBBS, ASSIGNMENT
MANAGER; WYLIE NEAL, NED GEORGE, AND NINA FANTL,
GENERAL COUNSEL'S OFFICE
Mr. JOHNSON. Thank you very much, Mr. Chairman. And I do
appreciate your comments about the fact that we did have to put
some of our ongoing work on hold and bring some staff to this par-
ticular assignment which we believe is important.
We are pleased to be here today to discuss the U.S. program of
interdicting and screening Haitians seeking asylum in the United
States. As you had indicated, on February 25, you asked us to ex-
amine several issues related to these activities. But as you re-
quested, my remarks this morning will focus specifically on the
screening and administrative processing problems we found at
Guantanamo Bay. Information on the other issues included in your
initial request will be provided in a subsequent report.
From 1981 through September 1991, approximately 24,600 Hai-
tians were interdicted at sea en route to the United States by the
U.S. Coast Guard. These asylum seekers were interviewed by INS
officers aboard Coast Guard cutters, and 28 were found to have
credible asylum claims and brought to the United States to have
their claims adjudicated. The reminder were found not to have
credible claims and were returned to Haiti.
Between September 30, 1991, the date of the military coup that
ousted President Aristide, and April 7, 1992, just 2 day ago, Coast
Guard records show that 18,095 Haitians were interdicted. Of
these, the records show that 10,149 were returned to Port-au-
Prince. INS records show that 4,301 were brought to the United
States.








Based on these records, we calculated that 2,589 were at Guanta-
namo Bay awaiting transportation to the United States to pursue
their asylum claims and another 646 were awaiting INS screening.
Our calculations show that about 40 percent of the Haitians were
found to have credible claims. I emphasize that this is what the
records show; however, we cannot verify these numbers because
the INS data base contains numerous inaccuracies.
Screening procedures for Haitians are unique in that this is the
only situation where asylum seekers are screened for credible
claims outside the United States before the formal adjudication
takes place within the United States. At the Guantanamo Bay fa-
cility, INS officers conduct screening interviews and those deter-
mined to have credible claims are allowed to go to the United
States to have their claims adjudicated. Those determined not to
have credible claims are returned to Haiti.
There is one exception to this procedure. Haitians determined by
INS officers to have credible claims but who have tested HIV-posi-
tive are interviewed a second time at Guantanamo Bay. U.S. law
prohibits the entry of persons with incurable communicable dis-
eases, like HIV, unless the Attorney General grants a waiver.
The second interview, which is similar to an asylum interview,
is used to determine whether such a waiver is justified. In essence,
the credibility of the Haitians' claims are assessed a second time
against a more rigorous standard to establish a well-founded fear
of persecution. If INS finds the Haitians to have a well-founded
fear of persecution, a medical waiver may be granted and the Hai-
tians permitted to enter the United States to pursue their asylum
claims.
We reviewed the screening and processing procedures at Guanta-
namo Bay. We did not find specific weaknesses in the INS inter-
viewing and screening procedures, but we found weaknesses in the
administrative procedures that followed the interviews, including
numerous errors in the INS computer data base, which is used in
the processing of individuals for return to Haiti or on to the United
States.
We found that because of these weaknesses at least 54 Haitians
were apparently mistakenly repatriated. These were cases in which
INS officials determined that the individuals had credible claims of
having suffered persecution or a well-founded fear of persecution,
or who for a family reunification purposes could have joined family
members who had credible claims or were already in the United
States.
At least seven others returned voluntarily without knowing that
they had been found to have credible claims and could have trav-
eled to the United States to have their cases adjudicated. We also
found that at least 50 Haitians whose claims were found during the
screening process not to be credible, were mistakenly sent to the
United States.
Finally, we found that a group of Haitians, possibly about 100,
were given reason to believe they would travel to the United States
to have their cases adjudicated, but instead have been or soon will
be returned to Haiti. This occurred because their claims were found
at the time of their interviews not to be credible, but their paper-
work was processed incorrectly and these people were treated ini-







tially as through they had been approved for processing in the
United States.
While we identified specific cases where Haitian asylum seekers
were erroneously either sent back to Haiti or to the United States,
we believe that our numbers may be understated. At the time of
our visit to Guantanamo on March 29, INS officers had not yet
completed a reconciliation of their records. That process could iden-
tify others in the various categories that I've described.
We have asked INS to verify the status of all the affected indi-
viduals who we identified and to provide us accurate overall figures
on the numbers in each category. As of today, we have not received
that information.
The problems that we identified occurred for several reasons.
First, INS made clerical errors in entering the screening decisions
on its computer data base, and reports prepared from the computer
data base were used to identify individuals for repatriation.
Second, family reunification decisions were not recorded in a
Community Relations Service's data base in a timely manner. Con-
sequently, some Haitians were repatriated rather than being per-
mitted to accompany, or join, family members going to or already
in the United States.
Third, some Haitians with family reunification claims were repa-
triated before their claims were investigated.
We think that one factor contributing to the processing problems
was that several Federal agencies were involved in the operations
at Guantanamo, but there was no designated lead agency respon-
sible for the day-to-day operations. The agencies included INS and
the Community Relations Service of the Department of Justice, De-
partment of Defense of course, the Public Health Service Depart-
ment of Heath and Human Services, and, of course, the U.S. Coast
Guard.
An interagency Policy Coordinating Committee in Washington,
charged with coordinating United States policies for the Caribbean,
had overall responsibility for the Haitian interdiction operation
from a policy standpoint. The committee chaired by Ambassador
Gelbard, included representatives from State, Defense, the Joint
Chiefs of Staff, Justice, INS, the Public Health Services, the Coast
Guard, and the National Security Council.
This mechanism assured that consistent policy was applied, but
it did not assure that day-to-day operations were conducted in a
uniform and coordinated manner. For example, no single agency
was responsible for designing and maintaining a controlled master
data file to ensure timely and accurate updating of the status of
each Haitian. As a consequence, on a daily basis agencies could
not be confident that their separately maintained computer files
contained current and accurate information. Our review indicated
these deficiencies led to some of the problems that we identified.
According to INS, involuntarily repatriated individuals with per-
sonal credible claims, as contrasted to family reunification cases,
could be of primary concern, because if their claims are valid they
could be in jeopardy in Haiti. According to the data we gathered,
about half of the 54 repatriated individuals fall into this category.
It must be noted that the U.S. Embassy in Port-au-Prince has
conducted, at the time of our review, over 500 investigations. Now








I understand that the State Department indicates up to 1,200
claims of persecution among repatriated Haitians who have been
returned have been investigated and no substantiating evidence of
these claims has been found. In fact, in some cases the Embassy
obtained evidence to refute those claims. But, we do not know
whether the investigations by the Embassy include any of those
who are mistakenly repatriated.
I want to illustrate the types of cases involved by citing just two
cases. In one case, a construction worker, who said he served as an
election worker for the pro-Aristide political party during the elec-
tion, stated that on October 1, two of his cousins were killed when
the military went to his aunt's house, where he lived, to inquire as
to his whereabouts. He said the military also went to his mother's
home to look for him. He asserted that his family members were
killed because the military knew of his involvement in pro-Aristide
activities. The INS interviewing officer judged his claim to be "cred-
ible."
In another case, a mechanic stated that he feared for his safety
is he returned to Haiti because he belonged to a pro-Aristide group,
which I won't try to pronounce here today, and this was a group
that organized rallies to support the return of Aristide. This indi-
vidual stated that after the coup military troops came into his area,
shooting and killing, looking for the people who supported Aristide
and members of this group.
He said he was well known in his area by both the population
in that region as well as the military. The INS interviewing officer
concluded that this applicant's story was credible, with clear, con-
sistent statements. Both of these individuals were repatriated.
The Guantanamo Bay processing center was closed to further
INS screening interviews of interdicted Haitians on March 27.
Since that time and until just a couple days ago, those interdicted
have been interviewed again aboard Coast Guard cutters, and only
those with credible claims taken to Guantanamo Bay for further
processing. While this practice seems to be satisfactory when the
volume of interdictions is low, it may not be if the numbers again
increase significantly.
Limited private interview facilities aboard the cutters restrict the
number of INS interview teams that can be put aboard. Each INS
team can conduct only two to three full individual interviews per
hour, and there is not sufficient space to separate those interviews
from those awaiting interview and to shelter large numbers of Hai-
tians. Therefore, when appreciable numbers of Haitians are inter-
dicted, ship board interviews pose a problem.
While we found that living conditions at Guantanamo Bay were
adequate to date, we were told that heat and weather conditions
preclude the facility's continued use for screening proposes. Hai-
tians are being housed in tents set on an old runway and water is
provided through pipes that are laid on the surface. With the onset
of hot weather and temperatures well over 100 degrees, we were
told that the tents would become unbearable and the water vir-
tually undrinkable. In addition, we were told that the temporary
facilities could not withstand the hurricane conditions that some-
times hit Cuba.






11
The number of interdictions has declined significantly, from a
high of over 6,000 in January, to a little over 1,100 in March; al-
though it should be noted that of that 1,100, 745 were picked up
during the last 4 days of the month. INS officials informed us, the
day before yesterday, that as a result of recent increase in the
number of interdictions, inductions and processing at Guantanamo
Bay have temporarily resumed.
It is obviously very difficult to predict whether large numbers of
Haitians will again attempt to leave their homeland; however,
given the recent history of the situation in Haiti, that possibility
should not be ruled out. Therefore, given conditions at Guanta-
namo, and in light of the limitations aboard the cutters for screen-
ing large numbers of Haitians who are interdicted, it seems to us
that some contingency planning should be done rather quickly by
the U.S. agencies involved to handle a resurgence of asylum seek-
ers, should this occur.
Mr. Chairman, that concludes my remarks. My colleagues and I
would be happy to respond to questions that you may have.
[The prepared statement of Mr. Johnson follows:]










United States General Accounting Office

GAO Testimony
Before the Subcommittee on Legislation and National Security.
Committee on Government Operations, House of
Representatives


REFUGEES


U.S. Processing of Haitian
Asylum Seekers


Statement of Harold J. Johnson, Director, Foreign Economic
Assistance Issues, National Security and International Affairs
Division





0~xO5t,


GAO/T-NSIAD-92.25 GAOFer 160(12.91)


GAO Form 160 (l1
orn-OMCPrCC


For Release
on Delivery
Expected at
10:00 a.m. EDT
Thursday
Apnl 9.1992


__.._ _____


GAO/T-NSIAD-92-25












Mr. Chairman, Members of the Subcommittee:



We are pleased to be here to discuss the U.S. program for

interdicting and screening Haitians seeking asylum in the United

States. On February 25, 1992, you asked that we examine several

issues related to those activities. These include

-- What was the basis for the administration's policy

toward Haitians seeking entry to the United States?

-- How many Haitians are attempting to enter the United

States?

-- What are the Immigration and Naturalization Service's

screening procedures for these people?

-- What are the living conditions for Haitians at the

Guantanamo Bay, Cuba processing center?

What is the State Department's assessment of human

rights conditions in Haiti, and has the Department

provided all relevant information to the U.S. courts

for their deliberations?



My testimony this morning is based on the preliminary results of

our review, but as you requested, my remarks will focus

specifically on the screening and administrative processing

problems we found at Guantanamo Bay. Information on the other

issues included in your initial request will be provided in a

subsequent report.









14



PROBLEMS WITH SCREENING AND PROCESSING PROCEDURES



From 1981 through September 1991, approximately 24,600 Haitians

were interdicted at sea enroute to the United States by the U.S.

Coast Guard. These asylum seekers were interviewed by INS officers

aboard Coast Guard cutters, and 28 were found to have credible

asylum claims and brought to the United States to have their claims

adjudicated. The remainder were found not to have credible claims

and were returned to Haiti.



Between September 30, 1991, the date of the military coup that

ousted President Jean-Bertrand Aristide, and April 7, 1992, Coast

Guard records show that 18,095 Haitians were interdicted. Of

these, the records show that 10,149 were returned to Port au

Prince. INS records show that 4,301 were brought to the United

States. Based on these records, we calculated that 2,589 were at

Guantanamo Bay awaiting transport to the United States to pursue

their asylum claims and another 646 were awaiting INS screening.

(410 were sent to other countries.) Our calculations show that

about 40 percent of the Haitians were found to have credible

claims. I emphasize that this is what the records show; however,

we cannot verify these numbers because the INS data base contains

numerous inaccuracies.



Screening procedures for Haitians are unique in that this is the

only situation where asylum-seekers are screened for credible


~_ ~_












claims outside the United States before the formal adjudication

process takes place within the United States. At the Guantanamo

Bay facility, INS officers conducted screening interviews and those

determined to have credible claims are allowed to go to the United

States to have their claims adjudicated. Those determined not to

have credible claims are returned to Haiti.



There is one additional processing procedure at Guantanamo Bay.

Haitians determined by INS officers to have credible claims and who

have tested HIV positive are interviewed a second time at

Guantanamo Bay. U.S. law prohibits the entry of persons with

incurable communicable diseases, like HIV, unless the Attorney

General grants a waiver. The second interview, which is similar to

an asylum interview, is used to determine whether such a waiver is

justified. In essence, the credibility of the Haitians' claims are

assessed a second time against a more rigorous standard to

establish a well-founded fear of persecution. If INS finds the

Haitians to have a well founded fear of persecution, a medical

waiver may be granted and the Haitians permitted to enter the

United States to pursue their asylum claims.



We reviewed the screening and processing procedures at Guantanamo

Bay. We did not find specific weaknesses in INS's interviewing and

screening procedures, but we found weaknesses in the administrative

procedures that followed the interviews, including numerous errors

in the INS computer data base, which is used in the processing of








16



individuals for return to Haiti or on to the United States. We

found that because of these weaknesses at least 54 Haitians were

apparently mistakenly repatriated. These were cases in which INS

officials determined that the individuals had credible claims of

having suffered persecution or a well-founded fear of persecution,

or who for family reunification purposes could have joined family

members who had credible claims. At least 7 others returned

voluntarily without knowing that they had been found to have

credible claims and could travel to the United States to have their

cases adjudicated. We also found that at least 50 Haitians whose

claims were found during the screening process not to be credible,

were mistakenly sent to the United States. Finally, we found that

a group of Haitians, possibly about 100, were given reason to

believe they would travel to the United States to have their cases

adjudicated, but instead have been or soon will be returned to

Haiti. This occurred because their claims were found at the time

of their interviews not to be credible, but their paperwork was not

processed correctly and these people were treated initially as

though they had been approved for processing in the United States.



While we identified specific cases where Haitian asylum seekers

were erroneously either sent back to Haiti or to the United States,

we believe our numbers may understate the problem. At the time of

our visit to Guantanamo on March 29, 1992, INS officials had not

yet completed a reconciliation of their records. That process

could identify others in the various categories I've described. We












have asked INS to verify the status of all the affected individuals

we identified and to provide us accurate overall figures on the

numbers affected in each category. We had not received this

information as of April 7, 1992.



The problems we identified occurred for several reasons. First,

INS made clerical errors in entering the screening decisions in its

computer data base, and reports prepared from the computer data

base were used to identify individuals for repatriation. Second,

family reunification decisions were not recorded in a timely

manner. Consequently, some Haitians were repatriated rather than

being permitted to accompany, or join, family members going to or

already in the United States. Third, some Haitians with family

reunification claims were repatriated before their claims were

investigated.



A factor contributing to the processing problems was that several

federal agencies were involved in the operations at Guantanamo, but

there was no designated lead agency responsible for the operation.

The agencies included the Departments of Justice, Defense, and

Health and Human Services; INS; and the U.S. Coast Guard. An

interagency Policy Coordinating Committee in Washington, charged

with coordinating U.S. policies for the Caribbean, had overall

responsibility for the Haitian interdiction operation from a policy

standpoint. The committee, chaired by Ambassador Robert S.

Gelbard, Principal Deputy Assistant Secretary, Bureau of Inter-












American Affairs, includes representatives from State, Defense, the

Joint Chiefs of Staff, Justice and INS, the Public Health Service,

the U.S. Coast Guard, and the National Security Council. The

United States Information Service and the Office of Management and

Budget are also represented. While this mechanism assured that

consistent policy was applied, it did not assure that day-to-day

operations were conducted in a uniform and coordinated manner. For

example, no agency was responsible for designing and maintaining a

controlled master data file to ensure timely and accurate updating

of the status of each Haitian. As a consequence, on a daily basis,

agencies were not confident that their separately maintained

computer data files contained current and accurate information.

Our review indicated that this led to some of the problems we

identified.



According to INS, the involuntarily repatriated individuals with

personal credible asylum claims (as contrasted with family

reunification cases) would be of primary concern, because if their

claims are valid they could be in jeopardy in Haiti. According to

the data we gathered, about hal of the 54 repatriated individuals

fall into this category. \



It must be noted that the U.S. Embassy in Port au Prince has

conducted over 500 investigations of claims of persecution among

repatriated Haitians upon their return and has found no

substantiating evidence of the claims. In fact, in some cases the


I











Embassy obtained evidence to refute such claims. However, we do

not know if the investigations include any of those mistakenly

repatriated.



To illustrate the types of cases involved in these mistaken

repatriations, I will summarize the asylum claims of two such

individuals.



In one case, a construction worker, who said he served as an

election worker for the pro-Aristide political party during the

election, stated that on October 1, 1991, two of his cousins were

killed when the military went to his aunt's home (where he lived)

to inquire as to his whereabouts. He said the military also went

to his mother's home to look for him. He asserted that his family

members were killed because the military knew of his involvement in

pro-Aristide activities. The INS interviewing officer judged his

claim to be "credible."



In another case, a mechanic stated that he feared for his safety if

he returned to Haiti because he belonged to the "Konite Quartie," a

group that organized rallies supporting the return of Aristide.

This individual stated that after the coup, military troops came

into his area shooting and killing, looking for the people who

supported Aristide and members of the Konite Quartie. He said he

was well known in his area by the people and the military. The INS









20



interviewing officer concluded that the applicant's story was

credible, with clear, consistent statements.



CLOSURE OF THE GUANTANAMO PROCESSING CENTER



The Guantanamo Bay processing center was closed to further INS

screening interviews of interdicted Haitians on March 27, 1992.

Since that time those interdicted have been screened aboard Coast

Guard cutters, and only those with credible claims taken to

Guantanamo Bay for further processing. While this practice seems

to be satisfactory when the volume of interdictions is relatively

low, it may not be if the numbers again increase significantly.

Limited private interview facilities aboard the cutters restrict

the number of INS interview teams that can be put aboard, each INS

team can conduct only 2 to 3 full individual interviews per hour,

and there is not sufficient space to separate those interviewed

from those awaiting interview and to shelter large numbers of

Haitians. Therefore, if appreciable numbers of Haitians are

interdicted, ship board interviews may again become a problem.



While we found that the Haitians' living conditions at Guantanamo

Bay have been adequate to date, we were told that heat and weather

conditions preclude the facility's continued use for screening

purposes. Haitians are being housed in tents set on an old

aircraft runway and water is provided through pipes laid on the

surface. With the onset of hot weather, and temperatures well over









21



100 degrees, we were told that tents would become unbearable and

the water virtually undrinkable. In addition, we were told that

the temporary facilities would not withstand hurricane conditions

that sometimes hit Cuba.


The number of interdictions has declined significantly, from a high

of 6,653 in January 1992, to 1,158 in March 1992; although it

should be noted that 745 of the March total were picked up during

the last 4 days of the month. INS officials informed us on

April 7, 1992, that as a result of recent increases in the number

of interdictions, inductions and processing at Guantanamo Bay have

temporarily resumed.


It is obviously very difficult to predict whether large numbers of

Haitians will again attempt to leave their homeland; however, given

the recent history of the situation in Haiti, that possibility

should not be ruled out. Therefore, given conditions at

Guantanamo, and in light of the limitations of shipboard screening

procedures for large numbers of interdictions, it seems to us that

some contingency planning should be done rather quickly by the U.S.

agencies involved to handle a resurgence of asylum seekers should

this occur.


Mr. Chairman, this concludes my prepared statement. My colleagues

and I would be happy to respond to any questions you and other

members of the subcommittee may have.


~~_~ _






22
Mr. CONYERS. Thank you for a very important, timely, and quick-
ly put together study that sheds new light on the problem and how
we may be able to make it fair and more efficient. I thank you
again, Mr. Johnson, Mr. Martin, and Ms. Gibbs.
Mr. Johnson, how did you discover that the Haitians whom the
INS had determined to have credible claims of persecution or fam-
ily reunification claims were sent back to Haiti?
Mr. JOHNSON. We asked INS to produce from their data base
various lists of individuals who had been screened out but involun-
tarily repatriated. They had not done that.
Since Susan Gibbs was the individual that was at Guantanamo
and sought those lists, I would like to have her describe that proc-
ess. I think its very important that we understand fully how we
went about doing this and the degree to which we believe that
those numbers, at a very minimum, are quite accurate.
Mr. CONYERS. Ms. Gibbs.
Ms. GIBBS. Thank you. We were in Guantanamo on March 8 and
on March 27. And on both of those days we had INS run some com-
puter lists for us. On those lists, for example for the repatriated
people, we had them print all the names of individuals who showed
that they were screened in and repatriated to Haiti. This would in-
dicate that there was a problem.
We then took the list to the military and had the military run
it against its manifest list to ensure that these people were on the
manifest.
Mr. CONYERS. Were these computer-derived lists that you're re-
ferring to?
Ms. GIBBS. Yes, they were. We just took two fields, repatriation
and the screening status. And theoretically, there shouldn't be peo-
ple "screened in" repatriated.
We took that list of individuals, ran it against the manifest list
to ensure they were repatriated. We also went to CRS, Community
Relations Services, had them check for family reunification docu-
ments on all these individuals. And we also attempted, through the
INS, individual interview records to document the status. Through
those three means we tried to document the status of every case.
And we were able to find the majority of the cases.
Mr. CONYERS. Essentially, if your name showed up on one list it
should not have shown up on another?
Ms. GIBBS. That's correct. You shouldn't have a "screened in"
person involuntarily repatriated.
Mr. CONYERS. Right.
Ms. GIBBS. And then we documented to make sure, as I said,
that people were on the ship, that there was a family reunification
Mr. CONYERS. Mr. Johnson, you indicate that there were 54 peo-
ple that you could identify who suffered this fate but that there
could have been more, that there were seven who agreed to go back
without even knowing that they could come to the United States
under our own rules. Do you have their names and case files?
Mr. JOHNSON. We do have their names, Mr. Chairman, in our
work papers. We would prefer-in fact, we would be very reluctant
to make those names public, because I think those people might be
in danger.
Mr. CONYERS. Oh, I don't seek to do that. Absolutely.








Mr. JOHNSON. But we do have their names, yes.
Mr. CONYERS. Was the INS aware of this situation before you
brought it to their attention?
Mr. JOHNSON. I don't believe they were. They had begun a rec-
onciliation process a few days before we arrived initially.
Mr. CONYERS. Well, they heard you were coming?
Mr. JOHNSON. Well, that could possibly be.
Mr. CONYERS. Maybe. OK.
Mr. JOHNSON. But, no, they were unaware of this particular situ-
ation.
Mr. CONYERS. Right. Can you give us any further detail about
what agency is responsible for the breakdown of the procedures?
I'm assuming it's INS. Is there some part within INS?
Mr. JOHNSON. We believe that since there was such a large num-
ber of agencies involved, it would have been extremely helpful to
have had a lead agency designated so that that lead agency would
then have responsibility for making sure that the files, records, and
data bases were consistent on a daily basis, because decisions were
being made on daily basis, and people were either being allowed to
enter the United States or being repatriated on a daily basis.
So those operating procedures really needed to be consistent. We
don't have a particular position on who should have been the lead
agency, but it does seem reasonable to us that INS would take the
lead in that matter.
Mr. CONYERS. Well, all agencies are not born equal, you know
that.
Mr. JOHNSON. That's true.
Mr. CONYERS. People maybe, but not agencies, and not even al-
ways-we have great problems even applying that rule to citizens.
But it seems pretty obvious that the lead agency should have been
INS. I can't imagine Community Relations Services calling in all
the other agencies and setting up the protocol.
Mr. JOHNSON. I think that would be our conclusion, as well.
Mr. CONYERS. Now, what is very important at this hearing is
that we understand the nature of the agreement that you have
with INS for the further information, requests for detail that are
necessary for you to continue to get the information to close down
this part of the study.
Mr. JOHNSON. Yes, Mr. Chairman. From the outset of our work,
we have attempted to work very closely with the INS, both at
Guantanamo as well as here in Washington. And I must say that
they have attempted to work with us as well. We have provided
them the list of the individuals that were mistakenly handled in
either direction and asked them to try to reconcile with their
records and do a scrub of their records to make sure of the status
of those individuals.
We have not made recommendations to them on what ought to
be done when they finally resolve, positively, as we think we have
done, the status of those individuals. But, clearly, they have all the
information that we have, and they have had that information on
an ongoing basis.
Mr. CONYERS. Well, I'm glad to hear that. When you get the fur-
ther information, it's in all likelihood that this number of 54 that
have been sent back mistakenly is going to rise.






Mr. JOHNSON. It's very possible. There were a total of, I believe-
Susan has this number in her head-I believe it was 80 people that
we had some question about, and in some cases the records were
not quite adequate, so we scrubbed that down to a number of 54
that we are very confident of. But there's very likely to be addi-
tional individuals involved.
Mr. CONYERS. So that makes the information that you further
need very critical to make sure that we get this number up.
Mr. JoHNSON. Sure.
Mr. CONYERS. I would like to work with you, in terms of what
kind of solution we need to arrive at and what after-the-fact rem-
edy we can apply for these people. I'd be happy to take any sugges-
tions you may have now, if you have any.
Mr. JOHNSON. I would like to note that the INS has opened an
office in Port-au-Prince, and that could be a possible solution to
bring those individuals-since the names are known-try to locate
those individuals and bring them to that office, and either adju-
dicate their cases there or bring them to the United States for ad-
judication. That would be a solution. It's not a GAO recommenda-
tion at this point, but it would be a possibility.
Mr. CONYERS. Commissioner McNary raises the possibility that
some Haitians may have been sent back because they failed to
make the credible claim in a second interview. Do you see that
being much of a problem, or a little problem, or no problem at all?
Mr. JOHNSON. I don't believe that is a-that may have happened,
but we don't believe that's the case. The information we have is
that the benefit of the doubt was given, if there were two inter-
views, to the interview that indicated a screen in rather than a
screen out. So we don't really see that as a large possibility.
Mr. CONYERS. Well, you've already pointed out the difficulties
presented in the closing of Guantanamo and reverting back to the
cutters for the location of the interviews. And there seems to be a
current wave of larger numbers of Haitians coming here. We don't
know if it's going to continue, increase, subside.
Mr. JOHNSON. The last few days it has been up.
Mr. CONYERS. It has been up?
Mr. JOHNSON. Yes.
Mr. CONYERS. And this has even caused INS to reopen Guanta-
namo, at least temporarily.
Mr. JOHNSON. That's our understanding. I think Dave has more
information on that than I do.
Mr. MARTIN. Yes, sir, they have recently resumed the prior pro-
cedures where they would bring individuals off the cutters and into
Guantanamo for processing and screening of their cases.
Mr. CONYERS. OK. Well, I thank you very much for your testi-
mony, and I appreciate all the help you have been to this subject
matter. This is a very sensitive area. In no time in history have
we treated any fleeing citizens from a friendly country in this way,
to send them back into a circumstance in which we refuse to recog-
nize or acknowledge the legitimacy of the government that has
driven out President Aristide.
So this work is the best that we can do to correct, I think, a very
tragic situation. And you here have intervened in a very timely and
effective way, and I owe you our deep thanks.






Mr. JOHNSON. Thank you.
Ms. GIBBS. Thank you.
Mr. CONYERS. We notice that Mr. Wylie Neal of GAO is also here
and contributed to the very fine work of the General Accounting
Office.
Mr. JOHNSON. Mr. Chairman, we brought other members of our
team: Mr. Wylie Neal, Mr. Ned George, and Nina Fantl, who is also
a member of our team from our general counsel's office.
Mr. CONYERS. Would you ask them to stand up and identify
themselves?
Mr. NEAL. I'm Wylie Neal.
Mr. GEORGE. Ned George.
Ms. FANTL. Nina Fantl.
Mr. CONYERS. You have our deep thanks and gratitude for the
excellent work you have done. Thank you very much.
Mr. JOHNSON. Thank you.
Mr. CONYERS. Our next panel of witnesses is the Commissioner
of Immigration and Naturalization, Commissioner Gene McNary;
also, the Director of Caribbean Affairs for the State Department,
Mr. Joseph Becelia; and a third party, no doubt a government man,
but unidentified at this moment-let s see, who are you, sir?
Mr. REES. I'm Grover Joseph Rees. I'm the general counsel of the
INS.
Mr. CONYERS. OK. Gentlemen, will you raise your right hands to
be administered the witness oath.
[Witnesses sworn.]
Mr. CONYERS. Thank you very much.
Commissioner McNary, we have your statement, and, without
objection, your statement and all the statements of any other wit-
nesses that follow you will be included in the record. We welcome
you to this hearing. Thank you for your appearance. You may make
any additional remarks or summary of your statement that you
choose.
STATEMENT OF GENE McNARY, COMMISSIONER, IMMIGRA-
TION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF
JUSTICE, ACCOMPANIED BY RICARDO INZUNZA, DEPUTY
COMMISSIONER, AND GROVER J. REES III, GENERAL COUN-
SEL
Mr. McNARY. Thank you, Mr. Chairman. I will just submit my
statement and make brief summary remarks. I appreciate the op-
portunity to testify before this subcommittee and especially to ad-
dress the concerns expressed by GAO and other observers.
As you know, Mr. Chairman, the alien migrant interdiction oper-
ation, which we call AMIO, is an interagency endeavor that dates
from September 1981, and its purposes are these: First, to rescue
persons leaving their countries in unseaworthy vessels. The Coast
Guard does that. Secondly, to deter further attempts at illegal
entry into the United States. Third, to interdict drugs and other
goods otherwise being smuggled into the United States.
Our eagerness to respond to humanitarian emergencies is a de-
fining characteristic of the American people, but we cannot be the
sole haven for any and all comers from around the globe who may
be in need of shelter, even if only temporary, from the tribulations







of a very complex world. Therefore, we, as a Nation, must find a
way to select from among the many social emergencies that occur
and to focus on those who are most in need of U.S. assistance.
We have chosen to offer help by opening the United States to ref-
ugees, people who cannot return to their own country because they
have a well-founded fear that they will be persecuted there on ac-
count of race, religion, nationality, membership in a particular so-
cial group, or political opinion.
We must bear in mind that, up to this point, any alternative to
AMIO would have permitted many thousands of people to enter the
United States illegally and encouraged many thousands more to
undertake dangerous and sometimes fatal sea crossings in an at-
tempt to come ashore here. This is not an imaginary concern.
AMIO has literally been as much a rescue as an interdiction oper-
ation.
People fleeing Haiti have typically done so in overloaded, often
unseaworthy vessels, and many of these who were not encountered
by AMIO have lost their lives. Even before the coup, INS was
working assiduously to improve its migrant screening procedures.
Shortly after the post-coup exodus began, we issued detailed in-
structions on the specific prescreening standard to be used, the
"credible fear of persecution" standard.
The proof necessary to establish a credible fear is significantly
less than that necessary to show a well-founded fear of persecution.
The credible fear test is, therefore, a threshold question designed
to identify those who have a chance of successfully pursuing an
asylum claim if paroled into the United States. Many people who
meet the credible fear standard may ultimately turn out not to be
genuine refugees,-but the test is designed to ensure that no refugee
is repatriated to Haiti involuntarily.
GAO has expressed a concern that inadequacies in the informa-
tion system at Guantanamo have led to resolutions in certain cases
that were inconsistent with actual interview results; that is, some
persons actually screened out may have been mistakenly paroled
into the United States to pursue asylum claims, and some screened
in, either in their own right or on the basis of a family relationship
to someone else who was screened in, may have been mistakenly
returned to Haiti.
We are in the process of trying to determine with certainty
whether any such mistakes have taken place. GAO's concerns arise
from having found information in the computer system at Guanta-
namo that was inconsistent with the information contained in the
hard copies of the files the computer information was apparently
meant to reflect.
There are a number of possible explanations for this. If we find
mistakes have in fact been made, we will make every effort, as we
have throughout this operation, to correct whatever mistakes we
learn of and to prevent their repetition.
Mr. CONYERS. You say if you find mistakes, you haven't found
any yet?
Mr. McNARY. No, sir.
Mr. CONYERS. You don't think those 54 people who appear on
both lists could be a mistake?






Mr. McNARY. We have recovered the files of 40 of the 54 and
have found that those, too, were clerical errors. We're down to 14.
We found out this morning about these two names because GAO
included those names in their testimony, and well check those peo-
ple out.
But in going through the files of those 54, so far, I'm told by my
Deputy Commissioner, who has been in Guantanamo and just came
back a couple days ago, that the 40 that we have found amounted
to an error in recording a screened in that should have been a
screened out, rather than anybody repatriated who should not have
been.
Mr. CONYERS. Well, wait a minute, where is this person, your
deputy; is he here?
Mr. McNARY. Yes, sir.
Mr. CONYERS. Who is he?
Mr. McNARY. Ricardo Inzunza is right here.
Mr. CONYERS. Well, don't you think we ought to have him up
here at the desk, at the witness table?
Mr. McNARY. If you wish, and there is sufficient room, we'll
bring him up.
Mr. CONYERS. Well, the general counsel wasn't listed to be a wit-
ness and you brought him along.
Mr. MCNARY. The general counsel is here because there may be
some legal questions.
Mr. CONYERS. You bet. But the reason that we're here is because
of what your other deputy actually does. We're talking about the
administrative process.
Would you give us your name, sir?
Mr. INZUNZA. My name is Ricardo Inzunza. I'm the Deputy Com-
missioner.
Mr. CONYERS. How do you spell the last name?
Mr. INZUNZA. I-n-z-u-n-z-a.
Mr. CONYERS. Would you raise your right hand?
[Witness sworn.]
Mr. CONYERS. Thank you very much, and thanks for joining us.
I guess you didn't think you were going to get called on, did you?
Mr. INZUNZA. I was here in case I was going to be called, sir.
Mr. CONYERS. That's very cooperative.
All right. Please, Mr. Commissioner, continue.
Mr. MCNARY. I'm finished.
[The prepared statement of Mr. McNary follows:]








28














Testimony

of



Gene McNary
Commissioner

Immigration and Naturalization Service


before the


Committee on Government Operations
Subcommittee on Legislation and National Security


on


U.S. Human Rights Policy in Haiti


Thursday, April 9, 1992
10 a.m.


Rayburn House Office Building
Room 2203










Mr. Chairman and Members of the Subcommittee:


I appreciate the opportunity to testify before this

Subcommittee. I am especially eager to speak to the preliminary

findings of the General Accounting Office (GAO). GAO's findings

concerning the interdiction, pre-screening, and further

processing of Haitian migrants since the coup in late September

1991 ousted the President of Haiti, Jean-Bertrand Aristide, merit

an immediate reply by the Administration. We are pleased to be

able to address and to clarify many of the concerns expressed by

GAO and other observers.

As you know, Mr. Chairman, the Alien Migrant Interdiction

Operation (AMIO) dates from September 1981. Its purposes are:



the rescue of persons leaving their countries in

unseaworthy vessels;



deterrence against further attempts at illegal entry

into the U.S.; and



the interdiction of drugs and other goods otherwise

being smuggled into the U.S.



Since its inception, the program has been an inter-agency

endeavor involving the Departments of State, Justice and

Transportation. Since the massive exodus from Haiti following

last fall's coup, the Department of Defense has joined this

2 -


68-236 93 2






30



roster as well and has played a major role in the interdiction

effort.

The Department of Justice directive dated October 2, 1981

defined INS operational responsibilities within AMIO:



INS is charged with conducting interviews aboard

Coast Guard cutters to determine whether those

interdicted may have refugee characteristics;



the Coast Guard is charged with actual interdiction

and return of Haitians and other aliens;



the State Department is charged with monitoring the

human rights situation in Haiti and the situation of

persons repatriated under the AMIO; and,



the Department of Defense has contributed facilities and

personnel at the Naval Base in Guantanamo Bay, Cuba.



United States Statutory Law and Executive Policy Direction

Until last fall's coup, the flow of Haitians toward the

United States had been relatively constant. Until the end of

September 1991, over 24,000 Haitians had been interdicted--

often rescued from rickety, unseaworthy vessels -- while seeking

to enter the United States. The Service has provided assistance

to Haitian nationals by admitting to the United States those who


- 3 -






31



demonstrate a "well-founded fear" of persecution, on account of

race, religion, nationality, membership in a particular social

group, or political opinion, if returned to Haiti. In addition

to refugees, the U.S. admits approximately 12,000 Haitians as

legal immigrants to this country every year.

We have taken steps from the very outset of the operation to

ensure that no genuine refugees are returned to their countries

of origin. INS was delegated the responsibility for screening

interdicted persons who claim to fear returning to their

countries of origin on account of race, religion, nationality,

membership in a particular social group or political opinion.

This has been and remains the only INS responsibility within the

government's overall inter-agency operation. INS believes that

AMIO generally has produced extraordinary success at preventing

illegal migration without repatriating genuine refugees.



The Alien Migrant Interdiction Operation

During my tenure at INS, we have been responsive to the

criticisms of those who said that pre-1990 procedures were

inadequate to the task of ensuring that genuine refugees were not

returned involuntarily to their countries of origin. We took

these reports in hand and, beginning in the spring of 1990,

started looking into our on-board interviewing policies and

procedures. By the end of that year, we had developed several

concrete recommendations, and in January 1991, we briefed key

members of the Miami and advocacy communities on these


- 4 -







32



initiatives. The meeting, chaired by my Deputy, received

positive responses from these groups. The new procedures

produced almost immediate results. These new procedures

included:



providing a better introductory briefing to all

interdicted aliens on the purpose of the individual INS

interviews;



conducting interviews in greater depth using an

improved interview questionnaire;



paroling into the United States any interdicted alien

expressing a reasonable fear of persecution if returned

home in order that he/she may pursue an asylum claim

with the INS;



-adjudicating such claims in the U.S. by members of

the Asylum Officer Corps established under the July 27,

1990 final asylum rule;



providing additional specialized training in asylum

law and in current country conditions for officers

involved in this program;


- 5 -







33



improving the reporting form used by the pre-

screening officers to record the results of their

interviews; and,



establishing a quality control mechanism to review

the documentation resulting from each set of

interviews and to refine the conduct of future

interview sessions.



Additional improvements were devised during the early months

of 1991 to enhance and better define the procedures to be used in

interdictions of large numbers of Haitians. These additional

procedures included:



working aboard the Coast Guard cutters, separating

those already interviewed from those not yet

interviewed;



explaining to each person in an opening statement the

purpose of the interview, its confidentiality, and

standards to be used;



using "long form" interview questionnaires, if no

initial asylum claim is made, to determine whether the

person being interviewed may nevertheless have refugee

characteristics; and, obtaining immediate feedback from


- 6 -







34



the State Department on the various claims made during

initial interviews.



AMIO and Pre-Screening Procedures Since the Coup

AMIO interviewing and processing procedures since the

September 1991 coup have evolved even further. In October 1991,

the Coast Guard and the rest of the Administration confirmed the

continuation of AMIO, and the existing policies and procedures.

We determined that interdictions and returns to Haiti under the

1981 agreements were still possible despite the changed

circumstances posed by the coup. However, human rights groups

reported considerable abuses not only immediately after the coup,

but consistently since then. These reports, along with any other

reliable information about country conditions that we could

obtain, have been taken into consideration by our pre-screening

officers.

Because of the sensitivity of INS's duty to interview

Haitian migrants after the coup, INS decided to detail members of

the new Asylum Officer Corps to Guantanamo to perform pre-

screening interviews. Shortly after the post-coup exodus began,

INS issued detailed instructions on the specific pre-screening

standard to be used, the "credible fear of persecution" standard.

The term "credible fear of persecution" means (1) that it is more

probable than not that the statements made by the person in

support of his or her asylum claim are true, and (2) that there

is a significant possibility, in light of such statements and of


- 7 -






35



such other facts as are known to the officer about country

conditions, that the person could establish eligibility as a

refugee. The proof necessary to establish a "credible fear" is

significantly less than that necessary to show a well-founded

fear of persecution. The credible fear test is, therefore, a

threshold question designed to identify those who have a chance

of successfully pursuing an asylum claim if paroled into the

United States. Many people who meet the credible fear standard

may ultimately turn out not to be genuine refugees, but the test

is designed to ensure that no refugee is repatriated to Haiti

involuntarily. During their subsequent asylum interviews in the

United States, those "screened in" under the credible fear

standard are interviewed according to the "well-founded fear"

standard required by statute.

At the same time, the INS Resource Information Center (RIC)

began compiling a series of "Supplementary Informational Packets"

on country conditions in Haiti. In compiling these packets, the

RIC collected and collated human rights reporting from a variety

of sources, which, in addition to the Department of State's

Bureau for Human Rights and Humanitarian Affairs (BHRHA),

included Amnesty International, Americas' Watch, the Lawyers'

Committee for Human Rights, the National Coalition for Haitian

Refugees, the Inter-American Foundation, and others.

When the Temporary Restraining Order in the HRC v. Baker

litigation forced the Coast Guard to off-load interdicted

Haitians at Guantanamo, INS began interviewing at Guantanamo


- 8 -










instead of on the Coast Guard cutters. At the same time, we made

several land-based improvements to our procedures, including on-

site quality control.



In-country Refugee Processing

The in-country processing of Priority 1 (P-l) Haitian

refugees -- persons in immediate danger of loss of life or of

compelling concern to the United States -- is provided for in the

Presidential Determination which sets U.S. refugee admissions

policy for Fiscal Year 1992. Under this authority, the United

States began refugee interviews at the American Embassy in Port-

au-Prince on February 20, 1992. To date, 26 cases have been

interviewed, with 11 cases approved for refugee status.

Although limited in scope, the in-country processing of P-l

Haitians provides persons at risk with access to the U.S. refugee

program. In Haiti, persons likely to meet the definition of

refugee fall into Priority 1, which includes, but is not limited

to, persons who fear persecution because they hold or held

leadership positions in political and religious organizations,

have held sensitive positions in the Aristide government or are

prominent in fields that may be targets of persecution. Efforts

have been made to ensure that individuals likely to be eligible

for U.S. resettlement are aware of the program's availability.


- 9 -






37



The "Double-backers-

Recently, some observers have expressed considerable concern

that a few involuntarily repatriated Haitians had suffered some

harm upon their return. Tales of this mistreatment surfaced when

INS began to interview persons who became known as 'double-

backers." These are Haitians who had been returned to Haiti only

to leave and be interdicted again, and then brought (with all

other interdicted persons) to Guantanamo Bay for pre-screening

interviews. Forty-two Odouble-backers' established a credible

fear of returning in their second interview at Guantanamo Bay.

This result led many observers -- including the press -- to make

the inference that they were screened in because of a fear of

retaliation upon return to Haiti for having fled in the first

place.

This inference is not correct. The -double-backers" in

question were among the original 538 returned on November 18th

and 19th. All screening decisions -- including those involving

the "double-backers" -- were based on evidence of mistreatment or

fear of mistreatment because of events that took place before

their first departure from Haiti. To date, there is no credible

evidence of systematic persecution of repatriates.



Repatriations

GAO has expressed concern that inadequacies in the

information system at Guantanamo have led to resolutions in

certain cases that were inconsistent with actual interview


- 10 -







38



results. That is, some persons actually screened out may have

been mistakenly paroled into the United States to pursue asylum

claims, and some screened in -- either in their own right or on

the basis of a family relationship to someone else who was

screened in -- may have been mistakenly returned to Haiti.

We are in the process of trying to learn with certainty

whether any such mistakes have taken place. GAO's concerns arise

from having found information in the computer system at

Guantanamo that was inconsistent with the information contained

in the hard copies of the files the computer information was

apparently meant to reflect. There are a number of possible

explanations for this.

One possibility is that the files that concern GAO are the

records of first interviews of persons interviewed a second time,

either because their first records were lost or because, as many

at Guantanamo appear to have done, they deliberately masked their

identity in order to obtain a second interview. Such persons may

have failed to establish a credible fear of persecution in their

second interview, and thus were properly repatriated on the basis

of that second interview.

A second possibility is that these people were voluntarily

repatriated. Any interdicted person is free to return to Haiti

at any time, and some have chosen this option. A person could

very possibly have been screened in but have opted instead to

return to Haiti; the absence of documentary evidence of this


- 11 -










choice could have resulted from a hiatus in the records as easily

as from a mistaken repatriation.

Another possibility we must face is that indeed there were

mistaken paroles or repatriations. This possibility, if

verified, leaves us with the task of determining the appropriate

response for each of the three categories of mistaken outcomes

posited by GAO.

The most troubling possibility is that a person found to

have a credible fear of return was mistakenly repatriated. We

have taken great pains to ensure that no person with a credible

fear of return is repatriated to Haiti. We are now taking

equally great pains to find out whether GAO's concerns are valid.

If we find that they are, we will make every effort, as we have

throughout this operation, to correct whatever mistakes we learn

of and to prevent their repetition.

Again, Mr. Chairman and Members of the Subcommittee, thank

you for providing me with this opportunity to speak and to

address some of the issues raised by the GAO report today and by

others in the past. We are confident that the current operation

involving the continued interdiction of Haitians seeking entry

into the United States is not only justified, but is also humane

and consistent with our international commitments and domestic

law.


- 12 -







Mr. CONYERS. You are telling us now that after they found out
54 glitches of names on both of them that everything you have
found so far doesn't show that-there isn't even one person that
has been improperly repatriated back to Haiti?
Mr. MCNARY. So far, we have not found one person. Now, the
two names that were mentioned this morning we will immediately
try to locate those people. But of the original 54, I'm advised that
we have recovered the files, and those, rather than being repatriat-
ing the wrong person or bringing the wrong person into this coun-
try, those were clerical errors where a mistake was made when it
was put into the computer rather than a mistake in transporting
the wrong person.
Mr. CONYERS. Well, have you communicated that information to
the General Accounting Office?
Mr. McNARY. No, sir.
Mr. CONYERS. So they file a report-they conduct an investiga-
tion, find out that 54, maybe more-you check it out, don't tell
them. We have a hearing. They come before the hearing and tell
us what they found, and then you come behind them and tell them
that you found no errors. And then you tell me you didn't tell them.
Mr. McNARY. That's correct.
Mr. CONYERS. Why?
Mr. McNARY. Because they were just in Guantanamo. We were
just in Guantanamo. We just got their statement yesterday. We've
had information given to us by GAO, and we immediately went to
work to try to find where the inaccuracies were that they had cited.
And the latest report from Mr. Inzunza, who just came from there,
came to me yesterday.
Mr. CONYERS. Then you are willing, then, to meet with them and
attempt to reconcile their figures against your findings?
Mr. MCNARY. Absolutely. We have and we will.
Mr. CONYERS. Then that may cause another hearing for us to
find out what finally happened.
Mr. McNARY. That will be up to you.
Mr. CONYERS. It sure will be. And you will cooperate, as you al-
ways do.
Mr. MCNARY. As I am today.
Mr. CONYERS. Right. OK. Now, let's hear from your deputy, Mr.
Inzunza.
Tell me what your duties and responsibilities in this whole inter-
viewing, processing, and determination of the Haitians are.
Mr. INZUNZA. I just returned from Guantanamo yesterday, and
my responsibilities while I was there were to be in charge of the
INS operation as it pertains to prescreening migrants. When I ar-
rived, we had been-I arrived on the 29th, I believe--
Mr. CONYERS. Of?
Mr. INZUNZA. Of March. And they had stopped processing-
Mr. CONYERS. This is March; this is last month?
Mr. INZUNZA. Mm-hmm. Yes, sir.
Mr. CONYERS. OK Was there somebody in charge of this before
you got there?
Mr. INZUNZA. Yes, Ms. Irma Rios was in charge.
Mr. CONYERS. Spell his name for me.
Mr. INZUNZA. Her name.






Mr. CONYERS. Her name.
Mr. INZUNZA. I-r-m-a; last name, R-i-o-s.
Mr. CONYERS. And you replaced her, or was she still there while
you were discharging your duties?
Mr. INZUNZA. She had been called to Miami to give testimony, to
be deposed for a court hearing, and I went to replace her while she
was off.
Mr. CONYERS. I see. And now that she has returned, you have
returned back to the States.
Mr. INZUNZA. Well, actually, she returned, and I stayed there a
few extra days to make myself feel comfortable that things were
going the way we wanted them to go.
Mr. CONYERS. She is now back in charge?
Mr. INZUNZA. Yes, sir.
Mr. McNARY. She reports to you.
Mr. INZUNZA. But she reports to me.
Mr. CONYERS. All right. Thank you. Now, tell us what you found
there when you arrived, and what did you do?
Mr. INZUNZA. When I arrived, there were close to 1,000 Haitians
on the Coast Guard cutters who were not being allowed to dis-
embark at Guantanamo Bay. We were interviewing on the docks.
The only place that we could interview was on the docks because
the joint task force was pulling out of Guantanamo. As of March
27, they had taken the position that Haitians could not be dis-
embarked at Guantanamo Bay unless they were in transit to the
United States.
It was under those circumstances that we were trying to inter-
view. Two days later, the joint task force received instructions that
they were to disembark all the Haitians that night so that we could
resume processing at Camp McCalla. The General Accounting Of-
fice mentioned that, that we had resumed processing.
Now, you must understand that when the Haitians are inter-
dicted they are really under the custody and control of the Coast
Guard. When they are on those vessels, the captain of the Coast
Guard cutter is really in charge of the care and maintenance and
everything, with the exception of the interview, which we do.
When they're disembarked at Guantanamo Bay, they go under
the care and maintenance and security of the Department of De-
fense, or the joint task force, and they move the people and present
them for interviews. And really all we do is to interview the indi-
viduals and determine whether or not any refugee characteristics
are present.
We were doing that. It was an ad hoc operation on the dock.
They were mixing screened with unscreened, because we didn't
have anyplace to put them. When we downloaded everybody, there
was some mixing of the unscreened and screened and screened ins,
which we had to sort out after the sun rose the following day and
everybody was in the camps.
We are now in full operation at Camp McCalla the way we were
prior to March 27. There were some people who were interviewed
for a few days who didn't get the regular ID numbers, who weren't
photographed, who didn't go through the process that others did,
so there are going to be some glitches or some gaps in the data







base, because these people won't have the ID numbers that others
had.
Mr. CONYERS. Did the Immigration Service send any Haitians
back as a result of mistakes discovered by GAO?
Mr. INZUNZA. Not to the best of my knowledge.
Mr. CONYERS. Were there any people that should have stayed
that were repatriated? Did any of those come to your attention?
Mr. INZUNZA. We're not through going through that list yet, Mr.
Chairman. There's 14 more cases that we have to find and confirm.
But, to the best of my knowledge, no.
Mr. CONYERS. You are in the process of reviewing the informa-
tion that has been brought to the committee by the GAO?
Mr. INZUNZA. Yes, sir. And as soon as we finish that we will in-
form the GAO of our findings.
Mr. CONYERS. Then you are not aware of 47 cases that were
screened in but were eventually reconsidered and sent out?
Mr. INZUNZA. No-the number 47 doesn't ring a bell, sir.
Mr. CONYERS. OK. Let's turn to Mr. Becelia, Director of Carib-
bean Affairs in State.
We would be happy to receive your comments now in addition to
your prepared statement or any summary of it.
STATEMENT OF JOSEPH BECELIA, DIRECTOR, OFFICE OF
CARIBBEAN AFFAIRS, DEPARTMENT OF STATE
Mr. BECELIA. Thank you, Mr. Chairman. I will offer a brief sum-
mary of the statement that I have already submitted, touching on
some of the points of most interest to my own office.
Let me say at the beginning that the administration remains
committed, unequivocally, to the restoration of the democratic proc-
ess and rule of law in Haiti and firm in our recognition of Jean-
Bertrand Aristide as that country's legitimate president.
We continue to support the OAS resolutions of October 3 and Oc-
tober 8, 1991, which called for financial and commercial sanctions
against the de facto regime in Haiti as the most effective means
to press that regime to conclude a political settlement and restore
the legitimate government. We are looking at ways, at this mo-
ment, to strengthen the sanctions we currently have in place, pur-
suant to those OAS resolutions.
We were encouraged by the agreement reached on February 23
of this year between President Aristide and leaders of the Haitian
Parliament calling for the confirmation of President Aristide's
nominee as the new prime minister and the formation of a govern-
ment of national consensus. We continue strongly to support this
agreement, and we regret that it has not been ratified by the Par-
liament of Haiti.
We continue to call on the Haitian Parliament and all Haitians
interested in a just, democratic solution to press for prompt ratifi-
cation and implementation of this accord, which we continue to be-
lieve is the best means of reaching a solution to the political crisis
in that country.
On the issue of the boat people, which I know is of paramount
interest today to this committee, Commissioner McNary has dis-
cussed already the processing of these individuals, from the stand-
point of his agency. Let me add that, with respect to those who are





43
returned to Haiti, the Department of State has instructed our Em-
bassy in Port-au-Prince to devote all available personnel to mon-
itoring their postrepatriation situation.
The monitoring effort is twofold, consisting of spot checks around
the country on the well-being of randomly selected returnees, plus
direct, firsthand investigations into specific allegations of mistreat-
ment that might be conveyed to the Embassy by the Department
of State. To date, the Embassy has found no information to sub-
stantiate such claims of mistreatment. In all, the Embassy has re-
viewed the status of more than 1,500 repatriates and found no con-
vincing evidence that they have been subject to persecution or
other abuse.
As to the overall human rights situation in Haiti, it must be
noted that an illegal, undemocratic regime holds power there. Inci-
dents of violence and other abuses persist in some areas. Nonethe-
less, we have full confidence in our Embassy's ability to monitor
and report reliably on the condition of those who are repatriated.
That concludes the summary of my opening statement, Mr.
Chairman. Thank you.
[The prepared statement of Mr. Becelia follows:]







44


STATEMENT OF JOSEPH BECELIA

DIRECTOR, OFFICE OF CARIBBEAN AFFAIRS

DEPARTMENT OF STATE

BEFORE THE LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE

OF THE

COMMITTEE ON GOVERNMENT OPERATIONS

HOUSE OF REPRESENTATIVES

APRIL 9, 1992




The Administration remains committed unequivocally to the

restoration of the democratic process and rule of law in Haiti,

and firm in recognizing Jean-Bertrand Aristide as that

country's legitimate president. We continue to support the OAS

resolutions of October 3 and October 8, 1991 which call for

financial and commercial sanctions against the de facto regime,

as the most effective means to press the regime to conclude a

political settlement and restore the legitimate government. we

are looking at ways to strengthen the sanctions we currently

have in place pursuant to those resolutions.


We were encouraged by the agreement reached on February 23

between President Aristide and leaders of the Haitian

parliament calling for the confirmation of his nominee as Prime

Minister and the formation of a government of national

consensus. The agreement included provisions that the

Organization of American States would be invited to send a

civilian mission to Haiti to support democratic institutions

and monitor human rights. The United States has contributed $1

million to the functioning of the OAS civilian mission, known

as OEA-DEMOC, and is prepared to contribute more. We have also











approached other governments at high levels to urge support for

the February 23 agreement a=d '---re that they cr tri!bte

personnel and funds to OEA-DEMOC.



We strongly support this agreement and regret that it has

not been ratified. We continue to call on the Haitian

parliament and all Haitians interested in a just, democratic

solution to press for prompt ratification and implementation of

this accord.


On the issue of boat people, which I know is of interest to

this committee, we continue to repatriate Haitian migrants who

have not been found to have credible claims for asylum in the

United States. As you know, every Haitian who is intercepted

by the Coast Guard is interviewed and screened. Those who do

establish a credible claim that they will be targeted for

persecution if returned -- or a credible claim that the fear

such persecution -- are not repatriated. To date, some 40

percent of those screened have qualified to pursue further

asylum processing.



with respect to those who are returned to Haiti, the

Department of State has instructed our Embassy in Port au

Prince to devote all available personnel to monitoring their

post-repatriation situation. The monitoring effort is

two-fold, consisting of spot checks around the country on the

well-being of randomly selected returnees and direct.

first-hand investigations into specific allegations of

mistreatment conveyed to the Embassy by the Department of

State. To date the Embassy has found no information to

substantiate such claims. In all, the Embassy has reviewed the

status of more than 1200 repatriates and found no convincing







46



evidence that they have been subject to persecution or other

abuse. We recognize fully that the human rights situation in

Haiti is far from ideal. An illegal, undemocratic regime holds

power. Incidents of violence and other abuses persist.

Nonetheless, we believe that the overall human rights situation

is improved since the period immediately after the September 30

coup. we have full confidence, moreover, in our Embassy's

ability to monitor and report reliably on the condition of

repatriates.


In addition to its own investigations of the status of

returnees, the Embassy also has access to a network of contacts

which permits it to learn of and to evaluate possible

violations of human rights in Haiti. The Embassy's Haitian

contacts include political figures at all levels and across the

political spectrum, as well as business people, the clergy,

educators, the media, health care workers and human rights

activists. The Embassy also maintains close contact with the

international community, including private voluntary

organizations working throughout the country in such areas as

agriculture, health care and education; missionary and other

religious groups; representatives of international

organizations such as the Red Cross and OAS; and the diplomatic

corps. These contacts have proven useful and reliable sources

of information about conditions throughout the country.


Finally, the Embassy has begun in-country processing of

Haitians for admission to the United States as refugees. These

operations will afford Haitians the opportunity to apply for

refugee status and to have their applications adjudicated in

their home country. This is expected to obviate the need for

those with refugee qualifications to leave Haiti in order to






47


seek aftission to the United States.







Mr. CONYERS. Thank you very much.
Let me go back to you, Mr. Deputy Commissioner. I notice you
have a portable phone there on the table. That means you're in
constant touch with the person that's doing the screening back at
Guantanamo and on the cutters?
Mr. INZUNZA. It's turned off right now, sir.
Mr. CONYERS. Oh, it is. OK Let me ask you-let's just go over
what the GAO said, so that when you meet with them to reconcile
these different findings and figures, we'll get to the bottom of this
as efficiently as possible. Here is GAO, page 4 of their testimony,
"There were cases in which INS officials determined that the indi-
viduals had credible claims of having suffered persecution or well-
founded fear of persecution, or who, for family reunification pur-
poses, could have joined family members who had credible claims."
Do you know about any such cases?
Mr. INZUNZA. Not specifically, but there certainly are-I mean,
when the people come in, the families are split up and sometimes
you don't find out the family memberships until later. And when
you do that, when we find those situations, we try and correct
them as quickly as we can.
Mr. CONYERS. Well, in other words then, if I were to arrange, or
you facilitate yourself, a meeting with GAO to determine which
cases they are talking, would that be OK with you, Mr. Commis-
sioner?
Mr. MCNARY. To work with GAO on-
Mr. CONYERS. Yes.
Mr. MCNARY. Yes, and we are doing that.
Mr. CONYERS. Yes, because if he doesn't know which cases they
are referring to, that is what the purpose of the hearing is about.
And then, the next sentence is, "At least seven others returned
voluntarily without knowing that they had been found to have
credible claims and could travel to the United States to have their
cases adjudicated."
Do you know which seven they are referring to there?
Mr. INZUNZA. Not by name. No, sir.
Mr. CONYERS. OK Would it be helpful to you if you met with
them and determined which seven they are talking about?
Mr. INZUNZA. Yes, sir. We plan to do that as soon as our-
Mr. CONYERS. As soon as this hearing is over, and you get Con-
gress out of the way? OK, fine. Thank you.
"We also found," GAO says, "that at least 50 Haitians whose
claims were found during the screening process not to be credible
were mistakenly sent to the United States.
"Finally, we found that a group of Haitians, possibly about 100,
were given reason to believe they would travel to the United States
to have their cases adjudicated, but instead, have been or soon will
be returned to Haiti. This occurred because their claims were found
at the time of their interviews not to be credible but their paper-
work was not processed correctly, and these people were treated
initially as though they had been approved for processing in the
United States."
So, here are two other classes, aren't there? A class of 50 and
possibly 100, those two categories. I will make this all available to
you. So, we would like to get this reconciled. I am sorry it had not







been done before the hearing, because that is really what this hear-
ing is all about.
Mr. McNARY. Well, the 50, Mr. Chairman, the 50 that were
screened in who shouldn't have been will still go through an asy-
lum hearing, so that is not at the top of our list of corrections or
procedures that we want to adjust, because that will take care of
itself. The 100 is not really anything that we can do about unless
we know who these people are.
There is a question, and Mr. Inzunza can go into this more spe-
cifically, but the way people are separated, depending on where
they are going to go, is not easy, and some people may have
thought that they were going one place when they weren't going to
that place, and the way I read this, they believed that they would
travel to the United States to have their cases adjudicated, but
were returned to Haiti.
That is something of a subjective state of mind which we don't
know why they would have thought that, except that they might
have been located with some other people who were going to be
screened in or screened out, and assumed that they were going to
go to the same place.
Mr. CONYERS. Well, there was a briefing between GAO and INS
last week. I mean, what did you talk about? I mean, we are all act-
ing like we all met here today, and we are just getting together on
this subject. There was a briefing last Friday. Why wasn't it
worked out then? You have been talking with GAO almost every
day, somebody in INS.
Mr. REES. Mr. Chairman, I was at that briefing, and we did raise
some of these possibilities with GAO. We raised four or five dif-
ferent ways that you could possibly be on two lists, one of having
been repatriated, the other of having been screened in, without it
actually being the worst case scenario, and we asked them about
those possibilities.
And one of the GAO representatives said he was pretty sure that
that wasn't what had happened, and that he thought they had
some specific instances, and I think that may boil down to these
two cases.
As far as I know, that's the first we know about these two par-
ticular cases, but what we promised to do and have been doing is
to go check out with the information we did have and try to find
the hard copies, the actual interview sheets on every one of those
people, and we have been doing this. I don't think there has been
a breach of faith on either side, Mr. Chairman. We have been doing
our best, and so have they.
Mr. CONYERS. Well, I am greatly relieved to hear you say that,
Mr. Counsel. What we are trying to do now, and you realize that
this is potentially a matter of life and death, so we are not talking
about clerical errors or, you know, a computer mistake.
We are talking about a person being taken into custody. They
take pictures, I've been told, as soon as you are repatriated back.
And your house can get burned down, or a house that they even
think you might be in can get burned down. So, it is a pretty seri-
ous matter, and I would appreciate if all these parties would go
back into counsel and help us really come up with where we're at.




p~c :.J I *_Y~- Y ~ -.


Now, with reference to the two examples, those were two out of
many. They just said, we will give you two examples that raise
some questions as to the processing. That suggested to me that
there were probably others in addition to that that you would want
to consider.
Mr. MCNARY. Well, they haven't indicated that to us, and I am
sure had they had other specific names, they would have given
them to us. GAO has no interest in sitting on names that possibly
we could check out and correct the situation.
Mr. CONYERS. Well, that is what they said under oath to me. I
don't know what they said to you not under oath. They said to me,
they said they had at least two, and they would give this example.
That suggests to me that there may be others. I don't know why
they have not been forthcoming, or even whether they have or have
not.
Well, let me turn to the representative for the State Department.
Do you mean to tell us here in your testimony that the State De-
partment has no evidence of political retaliation against returnees?
Mr. BECELIA. Mr. Chairman, the cases, the 1,500 cases which
have been investigated by our Embassy personnel have not turned
up convincing evidence of persecution or abuse against these indi-
viduals.
Mr. CONYERS. All 1,500?
Mr. BECELIA. That's correct, sir.
Mr. CONYERS. And who makes that determination?
Mr. BECELIA. The Embassy staff. Virtually all of-them are called
upon or are subject to being called upon at one time or another to
participate in these interviews and investigation. There are some
17 Embassy officers who are devoting most of their time or more
time than the rest of the staff to this process, consular officers, po-
litical officers, others who go out into the field and conduct these
interviews.
Mr. CONYERS. And you haven't come across even one case?
Mr. BECELIA. The Embassy has not come across any convincing
case of persecution or retaliation against these individuals.
Mr. CONYERS. Now, have you heard the claims that have been
made by other organizations that have made counterassertions?
Mr. BECELIA. Yes, we have.
Mr. CONYERS. Will you be able to remain here today to hear any
testimony that may be coming forward on this subject in the next
panel?
Mr. BECELIA. Yes, I will.
Mr. CONYERS. And would you be willing to stay in touch with
myself through my staff here as we continue to reexamine this
matter?
Mr. BECELLA. I would be happy to, yes.
Mr. CONYERS. Well, I appreciate that. Would you tell us, if you
can, Mr. Becelia, how the current political repression of the opposi-
tion in Haiti is being implemented and managed?
Mr. BECELIA. I'm sorry. Do you mean the repression by the re-
gime?
Mr. CONYERS. Yes.
Mr. BECELIA. Is being implemented and managed?








Mr. CONYERS. Yes. How are they operating down there? Do you
have any information on that? We do have a presence there still.
Mr. BECELIA. We do have a diplomatic presence, yes. Yes. As I
said in my opening testimony, this is a regime which we regard as
illicit, illegal, seized power illegally, unconstitutionally. We do not
recognize it as the legitimate authority in Haiti. We do not regard
it as fully subject to the constitutional safeguards and the rule of
law in that country. And consequently, we fully accept that there
have been abuses of power since that regime took office.
As I said in my statement, there are incidents that continue to
be reported in parts of the country of violence and other abuses
against certain individuals.
Mr. CONYERS. Well, I may need to contact you for further ampli-
fication of this subject matter through questions in written form.
Mr. BECELIA. Of course.
Mr. CONYERS. Now, it has been asserted by lawyers for the Hai-
tian refugees that there have been some 2,500 records lost. Are you
aware of that, Mr. Becelia?
Mr. BECELA. These would be records in whose custody, sir? I'm
sorry. No, I don't identify with those cases.
Mr. CONYERS. Oh, I'm sorry. This would go to the Commissioner,
Mr. McNary.
Mr. MCNARY. That is inaccurate, Mr. Chairman. The source for
that contention is that when we first started, and we had boatfuls
of people like we had never had before, there was a very difficult
situation of matching up people who came in rapidly. There were
different lists, and there might be a difference in spelling, for ex-
ample, same person, but since the name was recorded twice it was
spelled differently.
Some people destroyed the bracelet that had been given them be-
cause they felt as though they might get a reinterview if they did.
We were down to a few hundred that we couldn't account for, and
those, as well as everybody else, was reinterviewed. We inter-
viewed more people than ever came to Guantanamo.
So, we are satisfied that everybody who should have been inter-
viewed was interviewed and a fair adjudication was had.
Mr. CONYERS. Well, I don't know what I am going to-let me put
it this way. Can I stay in touch with you about this particular
claim, because I want to make sure that we resolve this matter,
since life and death is involved. We are not just talking about ad-
ministrative effectiveness. I would like to keep our line of commu-
nication open so that we can continue a discussion of this matter.
Mr. MCNARY. That is fine.
Mr. CONYERS. Thank you. Now, in your statement, Mr. Commis-
sioner, I heard one thing, and in your comments here they seem
to have gotten a lot harder. Here is what you submitted for the
record.
The most troubling possibility is that a person found to have a credible fear of
return was mistakenly repatriated. We have taken great pains to ensure that no
person with a credible fear of return is repatriated to Haiti. We are now taking
equally great pains to find out whether GAO's concerns are valid. If we find that
they are, we will make every effort, as we have throughout this operation, to correct
whatever mistakes we learn of and to prevent their repetition.








Now, have I heard you correctly today that you say there is abso-
lutely no basis for the errors the mistakes, the administrative con-
fusion that has been reported here by GAO?
Mr. McNARY. No, sir. I haven't said that. To the contrary, I am
satisfied with the GAO report. I think that they have speculated
in some places, but that doesn't bother us. We treat it as a valuable
working document. They came down. They have identified some
places in our administrative process that can be improved. We are
following up on those.
We believe-and the two we just heard about, those are the only
two names that we have, that we can go back, send somebody to
Port-au-Prince or to Haiti and try to find those people to correct
the situation.
Other than that, everything that we have followed up on, that
they have brought to our attention-and we will continue to follow
up, and there may be more that will come to our attention, but we
want to make sure that nobody is repatriated that should not be
repatriated.
And, Mr. Chairman, let's put this in perspective. We have inter-
viewed 18,000 people. We have had 20 teams of adjudicators down
there for 6 months. There has been a humanitarian effort beyond
belief. We have screened in 6,668 people into this country. We have
4,149 that are already here.
For anybody to say that we want to-or were careless, even, is
just-is a mistake.
Mr. CONYERS. That's what they said. Let's put that in perspec-
tive.
Mr. McNARY. We should put it in perspective, and even the ad-
ministrative errors are less than 0.3 of 1 percent. I would put that
up against any Federal agency, even Congress.
Mr. CONYERS. Well, let me just go back over this, then. You say
there are two cases that just came to your attention today that
they mentioned. That means that everything that they have said
here you don't agree with.
Mr. McNARY. No, it doesn't, and I have said twice-
Mr. CONYERS. Then you do agree with it.
Mr. MCNARY. As a matter of fact, I said that we had no problem
with their report.
Mr. CONYERS. Well, wait a minute.
Mr. McNARY. And we will follow up. We are continuing to follow
up on any name that we know about.
Mr. CONYERS. Well, you are saying, then, that you don't disagree
that they may be in error, but you don't concede that they are right
on any of these other matters?
Mr. McNARY. We don't know.
Mr. CONYERS. You don't know. OK. And you have been meeting
every day, somebody in INS. You had a big meeting Friday. And
we come here today, and you tell me that you are cooperating fully,
but all of the numbers and the circumstances that they have
brought forward in their testimony, you concede none of it to be
valid, but you are not sure, and you are going to check? Is that
right?
Mr. MCNARY. Well, you again have to put it in perspective. I am
talking about-


%it~,~Li~iaLl~~~a~i-~r*9%sLP~-~14~;tl~ ~ ~U~zPl~a sr~- -~ ~--~------ --








Mr. CONYERS. I am putting it in perspective. You said, "Let's get
real," and that is what I want to do.
Mr. McNARY. But I am not sure you are. We are down to 54 peo-
ple who could possibly be in jeopardy. We have run down 40 of
those 54. Somebody who mistakenly was brought into this country
is not in jeopardy.
Mr. CONYERS. In other words, 40 of the 54, there was no basis
for them being in that number to begin with?
Mr. MCNARY. Yes, we found it to be an administrative error
rather than someone who was repatriated.
Mr. CONYERS. Does GAO know about it, the 40?
Mr. MCNARY. They don't know about those 40. We are going to
continue to try to reconcile the other 14. That was what they
brought it to our attention for. I mean, there is good faith all
around here.
Mr. CONYERS. All right. Well, I can tell you, this committee isn't
going anywhere soon that I know about, so we will give you-all
the parties-as much time as we need to get this into reconcili-
ation.
Now, Mr. Becelia, you said that nobody is being involuntarily re-
turned to Haiti. Did you not say that?
Mr. BECELIA. No, sir, I don't believe I said that.
Mr. CONYERS. I was hoping you didn't say that. Well, I won't
then proceed with that line of questions.
Can you describe, sir, how many people are currently assigned
to the U.S. Embassy in Haiti?
Mr. BECEIA. That is kind of a moving target, in that we are
sending people now back who were brought out of Haiti shortly
after the crisis of last year, but there are now, I believe, about 60
American staff in the Embassy.
Mr. CONYERS. Do you have a breakdown that would indicate how
many are assigned to monitor human rights conditions?
Mr. BECELA. The Embassy provided me with a little information
on that, Mr. Chairman, and gave me the number of 17 mission offi-
cers who have been most directly involved in this. There have also
been five INS officers down at the Embassy who have partici-
pated-or in Port-au-Prince who have participated in this at one
time or another.
Mr. CONYERS. Yes. Who is in charge? Is there 1 of the 17 in
charge?
Mr. BECELIA. Well, all of them would take direction from the Am-
bassador. I am not aware beyond that who would be in charge of
the specific process, but the Ambassador obviously gives overall di-
rection to the Embassy.
Mr. CONYERS. Well, I can't imagine the Ambassador taking care
of these 17 and they are all reporting to him. But could you make
that list available to me, and try to also find out who is in charge
of the 17?
Mr. BECELIA. Could I elaborate on that answer, Mr. Chairman?
Mr. CONYERS. Sure.
Mr. BECELIA. The consul general would be the officer under the
Ambassador's immediate jurisdiction who would be most actively
involved in supervising this process.








Mr. CONYERS. Yes, that's better. OK. How can you have full con-
fidence in the Embassy's ability to monitor a report reliably on the
condition of some 11,000 repatriates?
Mr. BECELIA. Mr. Chairman, they have not undertaken to assess
the condition of all of the repatriates. The number, the latest num-
ber they have provided of the actual cases investigated is about
1,500. That is the number they have actually scrutinized to date.
Mr. CONYERS. Is that in a report somewhere, or is that discus-
sion discrete in some identifiable way?
Mr. BECELIA. The subjects of the various investigations are re-
ported to us on an ongoing basis in formal channels.
Mr. CONYERS. So, what we are talking about is maybe about 10
percent of these repatriates have had some kind of contact or inter-
view with our Embassy people there?
Mr. BECELIA. Something over that, but in that general area. Yes,
sir.
Mr. CONYERS. Now, let me turn quickly to the trade embargo.
Tell me how the trade embargo is working, in your judgment, at
the present moment.
Mr. BECELIA. The trade embargo has not, by any means, been
foolproof. There have been a number of gaps in the trade embargo.
The biggest that we have been able to identify is that in permitting
fuel into Haiti. That is probably the most critical single commodity
necessary to sustain that economy and thereby sustain the regime.
And there have been several deliveries of fuel that have managed
to provide that sustenance to the country.
Mr. CONYERS. Well, what about the effectiveness of the trade em-
bargo?
Mr. BECELIA. Well, that is what I was alluding to before. The
ability to bring fuel into the country is, to a large extent, the result
of the fact that not all countries in the world are participating in
the embargo.
The Europeans, for example, the European Community has not
subscribed to the embargo, and consequently there is no mecha-
nism whereby those governments can sanction shippers of fuel or
would have the obligation to sanction shippers of fuel into Haiti.
Therefore, the shipments continue.
Mr. CONYERS. So what is the effectiveness of the trade embargo
as viewed by yourself and the Department of State?
Mr. BECELIA. We believe the trade embargo has had an impact
on the Haitian economy. It has not had as full an impact as desired
or that we would have hoped would be the case, for the reasons
that I mentioned.
Mr. CONYERS. Have there been any other exceptions to the trade
embargo?
Mr. BECELIA. We have strong reason to believe that there are
other violations, that goods are being brought into Haiti, contraven-
ing the embargo, overland from the Dominican Republic, by other
vessels that go in and out of Haiti, by air. There is no foolproof
means of enforcing the embargo in an absolute sense, and there are
items which do go in, we are quite certain, on a continuing basis.
Mr. CONYERS. Has a former State Department official, Elliott
Abrams, played a role in seeking some of the exceptions to the
trade embargo?


Ilt s zplm- F e- -7' 7-7 -I I a ---- I








Mr. BECELIA. Mr. Chairman, I am, frankly, not aware of Mr.
Abrams' involvement in that at all.
Mr. CONYERS. You are not aware of it? Are you familiar with the
name Elliott Abrams?
Mr. BECELIA. Yes, I am.
Mr. CONYERS. Have you ever met him?
Mr. BECELIA. Yes, I have.
Mr. CONYERS. You know he is no longer with the State Depart-
ment?
Mr. BECELIA. That is correct.
Mr. CONYERS. Do you know that he played a role in seeking ex-
ceptions to the trade embargo?
Mr. BECELIA. Mr. Chairman, I am not familiar with his role in
that context, no.
Mr. CONYERS. Well, let me ask you, is there any expectation that
we will take action against the financial backers of the coup?
Mr. BECELIA. That is one of the steps that we have under consid-
eration at this moment. Yes, there is a possibility of that, Mr.
Chairman.
Mr. CONYERS. Would you be in a position to advocate that such
action be taken, that as much action as possible be taken against
these financial backers, since, without that sanction, we have the
people that are backing it not even being subjected to whatever
penalties or attention that could be brought to their role in this
matter?
Mr. BECELIA. Yes, I think we should give fullest possible consid-
eration to bringing increased sanctions against these individuals.
Yes.
Mr. CONYERS. Has there been consideration about freezing their
assets?
Mr. BECELIA. That is one of the aspects under consideration, yes.
Mr. CONYERS. And suspending their visas?
Mr. BECELIA. Yes, sir.
Mr. CONYERS. There are, I understand, other airlines other than
American airlines that regularly communicate from Haiti to the
United States.
Mr. BECELIA. That is right.
Mr. CONYERS. Could there be something done in terms of a travel
embargo?
Mr. BECELIA. I would have to defer to legal experts on that, Mr.
Chairman. I prefer not to venture a guess on that.
Mr. CONYERS. If there were no legal impediments, would that be
an additional consideration?
Mr. BECELIA. It sounds to me like a valid consideration, yes.
Mr. CONYERS. Right, and general counsel, do you have any views,
if this has been in your purview, about this subject?
Mr. REES. I couldn't give you a legal opinion on it, Mr. Chair-
man. It is not something that we deal with in Immigration. You
mean the airlines, whether we could stop that? I would have to
defer to the Department of Transportation. I'm sorry.
Mr. CONYERS. From 1981 to September 1991, the INS deter-
mined that only 28 people of 24,000 asylum seekers were found to
have credible claims of persecution. That was pretty low. Is there
any particular reason why that was so low?








Mr. McNARY. Yes, sir. It was before I came on board, and at that
time, the interview on the cutters was a short interview. I think
it was an interview in good faith, but it really didn't probe for an
accurate determination as to well-founded fear of persecution.
Usually, the person would be asked, "Why are you coming to the
United States'? Usually, the answer was, 'To get a job." And a few
other---Are you afraid to go back to Haiti?' "No." And they would
be returned.
When I became Commissioner, I had talked to enough groups to
believe that the interview process should be expanded. We did ex-
pand the process, as well as we have gone to trained adjudicators,
who are the people that are at Guantanamo now, but have been
a part of the AMIO program, so that they are better trained in
country conditions as well as how to probe for the facts, so we
think that the percentages went up for that reason.
Mr. CONYERS. Well,-I want to commend you for the process re-
forms that you have instituted, and I hope you will be sensitive to
any further recommendations that may be brought forward, from
this committee or from anywhere else, for that matter.
Mr. McNARY. Yes, sir.
Mr. CONYERS. Did the Haitian Refugee Center lawsuit assist in
focusing your attention on this subject?
Mr. McNARY. It focused our attention because the numbers went
up when it happened. I've got our general counsel here. I'm not
sure what you are referring to.
Mr. CONYERS. Well, wasn't the lawsuit brought around that sub-
ject, of the way the interviews were going?
Mr. McNARY. Well, the lawsuit-let me start out. The lawsuit
was brought because the numbers-our procedures were really de-
signed to handle smaller numbers of people. We could do that on
the cutters. When the numbers went up, it put a strain on our
interviews, and it was about that time that a lawsuit was filed, but
I think almost at the same time we made arrangements for Guan-
tanamo, which solved the problem.
Mr. CONYERS. Look, you know, I am a great believer in progress
and improvement. Who needs a lawsuit anyway, I mean, if you are
doing the right thing, and you are moving the situation along? We
don't know how these forces interacted.
Mr. McNARY. Well, we didn't need the lawsuit, and we don't wel-
come them now, because it sends out a false hope to people.
Mr. CONYERS. You don't go out looking for lawsuits?
Mr. McNARY, No. We didn't do anything to justify that lawsuit,
and, as a matter of fact, we were upheld by the Supreme Court,
so I don't know that anything can be gained from it.
Mr. CONYERS. Well, you weren't upheld at the lower court.
Mr. McNARY. Well, no, there was a judge who had his own per-
sonal opinions, in my judgment.
Mr. CONYERS. Yes. OK. So, in other words, this would have hap-
pened without the lawsuit? I mean, they jumped the gun a little
bit? Well, OK. You don't have to answer that. Would you invite me
to come down to Guantanamo to review this situation, because I
think that it would be important that I see what is going on down
there.


r V, 7-- -, ~CdkrLFI~Lar~rr r ~ ~ ----I








Mr. McNARY. Everybody else has been there. I am surprised you
haven't been there already.
Mr. CONYERS. Well, I didn't get an invitation.
Mr. McNARY. We didn't send out many invitations. As a matter
of fact, we are trying to keep the guest list to a minimum.
Mr. CONYERS. Well, if a Member of Congress, a chairman of a
committee, sought an invitation, would you send one out?
Mr. MCNARY. I am telling you right now, you are welcome to
come to Guantanamo.
Mr. CONYERS. Well, I am happy that you invited me, Mr. Com-
missioner. This is wonderful. I will change my schedule to accom-
modate this invitation. This is really good. I didn't want to just go
barging around there and, you know, land there, and, "What is he
doing down there?" I want to exchange the notices, and let you
know what I am looking for.
Mr. McNARY. I think you would be impressed, Mr. Chairman.
The Defense Department is to be commended. They have been hu-
manitarian beyond belief. The medical attention, the shelter, the
way people have been treated is excellent.
Mr. CONYERS. Good. I will remember you told me that, because
I will be coming down to take a look. I am sure you would have-
Mr. MCNARY. There will probably be a nice tent there for you to
move into.
Mr. CONYERS. Well, the tents, that's a good question. Yes. As a
matter of fact, you know, there are a lot of African-Americans that
consider that except for where that boat landed coming from Africa,
they might be Haitians themselves, so there is a great feeling of
mutuality of circumstance about the plight of Haitians and the his-
torical plight of African-Americans.
Mr. McNARY. Some of our adjudicators are Haitian.
Mr. CONYERS. Well, that is very helpful. Any concluding state-
ments, gentlemen? Thank you very much. I appreciate your pres-
ence here today.
We will move to the final panel. We have the deputy of the New
York City Office of the Lawyers Committee for Human Rights,
legal counsel for the Haitian Refugee Center in Miami, professor of
Yale University School of Law. You are all welcome to the commit-
tee. Thank you for your preparation.
We thank you all for the great amount of work that you have
been doing. I know that much of it is uncompensated, and some of
it is additionally at great cost to you in addition to being uncom-
pensated.
We would like to start with the Lawyers Committee for Human
Rights, attorney William O'Neill. Welcome.
[Witnesses sworn.]
STATEMENT OF WILLIAM O'NEILL, DEPUTY DIRECTOR,
LAWYERS COMMITTEE FOR HUMAN RIGHTS, NEW YORK, NY
Mr. O'NEILL. Thank you, Mr. Chairman, and thank you for hold-
ing these hearings. I would just like to briefly summarize some
points made in my written statement.
First, Haiti is a human rights nightmare. As deputy director of
the Lawyers Committee, I am charged with following human rights
conditions in a number of countries around the world, and the situ-








ation in Haiti is among the worst I have ever seen. It is a human
rights lawyer's nightmare.
We see extrajudicial executions, torture, arbitrary arrests, a vi-
cious clampdown on the press, prohibition of meetings, and a gen-
eral situation of lawlessness where people who commit these viola-
tions act with impunity.
The people who are committing the violations are the Haitian
military and their civilian allies, the Ton Ton Macoutes, who have
resurfaced, and the section chiefs, who are rural policemen in the
countryside but who are, in effect, part of the military hierarchy.
The objects of their attention, the victims of these violations, are
virtually the entire Haitian population, but at particular risk is
anyone who is a known or suspected supporter of President
Aristide, and that narrows it down to about 67 percent of the popu-
lation, which is the percent of the vote that he received in the only
free and fair elections Haiti has ever had.
My second point is that U.S. policy up to this point has been a
failure, and we can see that nearly 6 months after the coup, the
military is still in charge. Our courts so far have failed the Haitian
asylum seekers.
Our administration, with its weakening of the embargo, sent a
terrible and a horrendous signal at a crucial time. And the embar-
go has never really been an embargo. As has been mentioned al-
ready, the Dominican border is porous. Boats come in from all over
the world, including one tanker that was seized last week in San
Juan, Puerto Rico, that had some United States connections.
What should the United States do now? I would like to focus on
that for a second. We believe that the embargo should be tightened,
and not only the OAS embargo, but we believe that the administra-
tion should instruct its ambassador to the United Nations at the
Security Council to sponsor a resolution condemning the human
rights violations in Haiti and calling for a universal embargo.
That way, we will avoid the current situation, where tankers,
planes, and other goods come from Europe or Africa or Asia be-
cause they are, by definition, not bound by the OAS embargo.
We also believe that the U.N. Secretary General should appoint
a special emissary to investigate the human rights situation in
Haiti, and that human rights monitors from the United Nations
should be sent to Haiti. This is in line with the recommendation
that was made by the Special Rapporteur on Iraq at the most re-
cently concluded session of the United Nations Human Rights
Commission in Geneva.
And we think that a similar exercise should be undertaken in
Haiti. The U.S. delegation in Geneva voted for this resolution re-
garding Iraq. We think Haiti deserves at least as much effort from
the United Nations, that even up until now the United Nations has
been treating Haiti as a second-class citizen.
I would also like to briefly bring up some factual issues with re-
gard to the asylum situation, and also with regard to human
rights. I have interviewed many Haitian asylum applicants, so I
was a little disturbed when I heard this morning that interviews
are now going at the pace of two or three an hour.
I find that in friendly circumstances and surroundings it takes
at least 2 or 3 hours to properly interview a Haitian asylum appli-








cant. Twenty minutes per interview, including time for interpret-
ing, is a cursory interview, at best. Also, interviews done on cut-
ters, where a refugee is surrounded by uniformed personnel-and
think of a Haitian for a moment. Any time anybody in a uniform
has been near a Haitian, it has usually been an unhappy experi-
ence.
The conditions are not conducive to the Haitian asylum applicant
revealing his true story. That is a very important point. And I
think that even though there have been reforms made, and we
should commend those reforms, just by definition, an interview on
a cutter is probably not going to get right to the story.
I think also that we need to understand the investigation of what
is happening to those who are forced to return to Haiti-and the
statement made that there has been no evidence uncovering any-
one who has suffered persecution after being returned. I have been
to Haiti many times on human rights monitoring missions, fact-
finding missions. I have been to the Haitian countryside.
It is extremely difficult to get this information, even in the best
of times, let alone now, when the section chiefs are back in charge.
They rule as petty tyrants in their rural areas. And I just don't
think it's plausible, no matter the best intentions, for someone from
the Embassy or anywhere else to go out to the countryside to ask
very difficult and potentially life-threatening questions. That per-
son leaves, the investigator leaves, and the person who has been
responding to the questions is faced with the section chief. So, it
is very difficult to get this information.
Point 2. The current de facto prime minister of Haiti is a former
human rights militant. He knows the interdiction program. I have
to say, my organization and many other human rights organiza-
tions worked closely with this man before he took up his present
position. He knows what people are looking for. He knows the kind
of information that would completely disrupt his program.
So, you can bet that he will take every step to give instructions
to the military, to the section chiefs to make sure that the informa-
tion that is precisely the information that we are all seeking is
going to be as difficult as possible to get.
I would just like to conclude by saying that I think the inter-
national community owes a lot to Haiti. The elections in 1990 prob-
ably never would have happened as they did without the full sup-
port of the OAS and other member states and the election monitors
who worked so hard. We cannot now walk away after the govern-
ment that emerged from those elections is overthrown.
And that is why we would like to emphasize a strong multilat-
eral response immediately to this crisis, not only by the OAS but,
as I said, by the United Nations.
Thank you very much.
[The prepared statement of Mr. O'Neill follows:]






60

















PREPARED STATEMENT OF William G. O'Nell
Lawyers Committee for Human Rights



before the
Subcommittee on Legislation and National Security

of the Committee on Government Operations
U.S. House of Represenatives

Washington, D.C.

April 9,1992





61



Chairman Conyers, I want to thank you for convening this hearing and for inviting the
Lawyers Committee for Human Rights to testify. Since 1978 the Lawyers Committee has monitored
human rights in all regions of the world. The Committee works to promote international human
rights and refugee protection. The Committee's work is impartial; we hold every government to the
same standards as enunciated in international law, especially the major international human rights
treaties.

I am a lawyer and the Deputy Director of the Lawyers Committee for Human Rights. One of
my principal tasks at the Lawyers Committee is to monitor the human rights situation in Haiti. I have
followed events in Haiti closely for the last eight years. I have visited Haiti six times during the past
five years. During my visits I have interviewed ministers of justice, a former prime minister, judges,
lawyers, journalists, academics, church workers, peasants, and people from a variety of professions.
I am the co-author of a 250-page report on human rights and the Haitian justice system called Paper
Laws. Steel Bayonets: Breakdown ofthe Rule of Law in Haiti (December 1990). I have written
numerous articles on human rights in Haiti, testified before Congress, given formal briefings to
Congressional staff members, taught human rights law courses in Haiti and have spoken in numerous
public fora on human rights and the Haitian justice system.

Since the military coup d'etat on September 29, 1991, the extent and frequency of gross human rights
violations have reached levels not seen since the deadliest days under the Duvaliers. Extrajudicial
executions, torture, arbitrary arrests, "disappearances," prohibition of meetings and demonstrations
and crackdowns on freedoms of opinion and the press have become daily fare. Last month the United
Nations Commission on Human Rights passed a resolution severely condemning human rights
violations committed since the September coup by the military and its civilian allies. No one has
been prosecuted for a human rights violation since the start of the coup. The Haitian military is once
again acting as it has always done, with impunity and with contempt for human rights.

I am in daily contact with human rights groups, human rights monitors and journalists currently
working in Haiti. These extremely reliable sources report severe and systematic human rights
violations. Violations tend to increase in direct proportion to political tensions. For example, on
December 10, 1991, rumors began to circulate that President Aristide would return to Haiti before
Christmas. On December 13 and 14 spokespersons for two important voting blocs in the Haitian
Parliament wrote to President Aristide saying they were willing to ratify his choice of a new Prime
Minister assuming certain conditions were met, including a guarantee of their personal security from
the Organization of American States.

The Haitian armed forces and the recently restored rural section chiefs proceeded to conduct sweeps
through neighborhoods and rural regions known as Aristide strongholds and arrested and beat people.
On the nights of December 16 and 17, soldiers searched cars and houses in the Bel-Air, Bolosse,
Martissant, Saint Martin and Carrefour-Feuilles sections of Port-au-Prince; soldiers stole goods and
beat numerous young people.

National Assembly member Astral Charles was executed by a recently restored section chief and his
deputies in his home in the northern village of Pignon on December 15. Mr. Charles was a known
supporter of President Aristide. Assembly member Samuel Milord had signed public letters to
President Aristide outlining criteria for choosing a new Prime Minister. Armed men went to his


68-236 93 3





62



home but Mr. Milord was not there. Soldiers killed two people in his house and wounded and beat
several others. Mr. Milord is in hiding. Also on December 15 soldiers burned down the house of
another Representative in the National Assembly who is a strong Aristide supporter, Mr. Jean
Mandenave.

TFlix Lamy, a journalist for Radio Galaxie, was abducted at 8:00 p.m. on December 10 by
armed soldiers who also ransacked the station after it had broadcast news of a rumored split in the
army. Mr. Lamy's whereabouts are currently unknown and the Lawyers Committee fears he has
been executed. Two other radio stations that had broadcast similar news received threats from the
armed forces and have been forced off the air. Independent radio stations still on the air are forced to
exercise suffocating self-censorship.

A list of approximately 200 names was read over state-run radio on December 15 by people
who identified themselves as being members of the Volontaires de la Sicuriti Nationale ('VSN'), the
official name for the infamous Tonrons Macoutes. Those reading the names also gave addresses and
phone numbers of individuals and the time and place of meetings of the organizations on the list and
urged that the people on the list be executed wherever and whenever found. This list was read
several times subsequently over an FM radio station called the "Voice of the VSN." The Lawyers
Committee fears for the life of every person on the list, all of whom are known Aristide supporters.

Similarly, in the days surrounding the first anniversary of President Aristide's inauguration on
February 7, 1991, the military increased its repression, prohibiting or disrupting pro-Aristide
demonstrations, conducting sweeps and arresting many young men in the poor districts of Port-au-
Prince. On February 7 at 8:00 a.m., soldiers abducted four young men from the Bel-Air district of
Port-au-Prince. The parents of one of the young men found the body of their son and his three
companions the next day in the morgue. All had been executed as evidenced by their bullet wounds.
Other violations in February included:

-on Saturday, February 29, two young men In downtown Port-au-Prince were
discussing the army and some of its recent actions when several soldiers overheard
them. The soldiers immediately started to beat the young men viciously according to
eyewitnesses. They were thrown bleeding into the back of a pick-up truck and taken
to an unknown destination. They have not been seen since;

-On February 12, 1992 in downtown Port-au-Prince, four armed men in civilian
clothing stopped Jean Mandenave, a pro-Aristide member of Parliament, and forced
him to get out of his car. One of the men fired his gun at Mr. Mandenave's head,
fortunately missing him.

-on February 5, Jean Rdmi Azor, a leader of a peasant organization in the Artibonite
Valley, was arrested after living in hiding since the coup in September. Mr. Azor
had secretly returned to his home village of Verrettes to seek emergency medical
attention. His whereabouts are presently unknown;

-on February 10, Ils Bastlen was arrested in the village of Darbonne near Ldogane.
The section chief beat him 100 times with his baton and Bastion had to be
hospitalized. When questioned, the section chief said he had hit Bastion 'only' 25
times;






63



-two armed civilians arrested Jacquelin Louis on January 28. Mr. Louis was a
member of a local community group in the La Fossette section of Port-au-Prince.
The armed civilians beat Mr. Louis violently while arresting him and beatings
continued in prison. He later died as a result of this inhuman treatment;

-Section chief Jean Marie Voltaire burned down 121 houses in Borgne after local
residents refused to pay an illegal tax he tried to impose after resuming his post at the
end of January. 57 soldiers and 157 armed "assistants" participated in this attack;

-on February 14, a meeting at the Holiday Inn in downtown Port-au-Prince of two
pro-Aristide groups was broken up by a contingent of heavily armed soldiers who
surrounded the hotel. Several foreign embassies were contacted and after their
intervention the soldiers allowed the participants to leave the hotel. Port-au-Prince
mayor Evans Paul, who was at the meeting, declared that the military was clearly out
to Intimidate those attending who included such major political figures as Turneb
Delpt, Jean-Claude Bajeux, Micha Gaillard and Victor Benoit.

These incidents demonstrate that those suspected of being Aristide supporters are precisely the
people now most at risk in Haiti. The list of people targeted for execution on radio broadcasts by
self-proclaimed Tonrons Macoures includes bishops, priests, students, journalists, grass-roots
organizers and simple citizens who have supported the return of President Aristide.

The recent restoration of rural section chiefs, particularly individuals who have been gross
violators of human rights, Is an extremely alarming development. Section chiefs have traditionally
ruled as petty tyrants in the remote countryside, taxing, arresting, beating and imprisoning as they
pleased. There are approximately 535 rural sections in Haiti and each is ruled by a section chief.
They are members of the military and report to the nearest district commander. President Aristide
abolished the position; the d fa government has reinstituted section chiefs thus reversing one of
President Aristide's most important human rights reforms. The section chiefs have also enlisted
numerous assistants who constitute virtual private armies; they arrest, torture, kill and extort with
impunity. The section chiefs and their assistants lie entirely outside civilian control and are
answerable only to the military. The Haitian countryside, home to 75% of Haiti's population, is once
again under the thumb of ruthless individuals who operate beyond the control of civilian authorities.

Urban and rural grass-roots development and literacy groups have been targeted for
government persecution. The armed forces have burned down hundreds of homes of suspected
Aristide supporters. For example, the Peasants Movement of Papeye (MPP) is a peasant self-help
group that has been active in development projects In the Central Plateau area of Haiti. The military
has targeted the MPP on numerous occasions during the past few years. The military cracked down
severely on the MPP after the September coup and its leaders are currently in hiding. The MPP
issued a detailed report in late January 1992 confirming Information that we had received previously
about systematic and targeted attacks on Aristide supporters in the Haitian countryside. This report
also reinforces repatriated asylum-seekers' accounts of soldiers conducting house searches looking for
members of pro-Aristide groups. Many of the asylum-seekers forcibly returned by the U.S. come
from rural areas, including the MPP's home region near Hinche. The repression described in the
report is the norm in rural Haiti since the September 1991 coup.

The lives of those who have been forced to return to Haiti are also at risk. Their attempt to






64



flee marks them as enemies of the military. For example, in mid-December 1991 the representative
of the United Nations High Commissioner for Refugees ('UNHCR") reported that all 73 people
recently returned from Venezuela were immediately arrested by the Haitian military and detained.
Some were reportedly released after thorough questioning to determine whether or not they were
supporters of President Aristide. Soldiers confiscated the money for resettlement given to the
returnees by the UNHCR.

In early February 1992 the UNHCR's representatives in Guanranamo Bay interviewed 41
Haitians who had been forcibly repatriated in early November after being interdicted by the U.S.
Coast Guard and found to have no colorable claim for asylum following interviews with Immigration
and Naturalization Service officials. These Haitians suffered severe persecution on their forced return
to Haiti and were once again able to escape by boat, only to be interdicted once again by the Coast
Guard. These Haitians, during their second interview, told how soldiers had come to their houses
looking for them; some were arrested, beaten and put in prison. One told of how soldiers said they
would kill him.

Conditions for doing adequate follow-up work on the treatment of returnees, always difficult
in Haiti, are even more problematic given the military's tight control since the coup. According to
telephone interviews I have had in the past few weeks with Haitian human rights workers and
international journalists based in Haiti. many of those being forcibly repatriated by the U.S.
immediately go into hiding after being photographed and finger-printed at the wharf by Haitian
security forces. Even their families do not know where they are. For example, one group of 20
young men reportedly had to flee to the hills near Anse d'Ainault after being repatriated on February
3, 1992. The level of fear and terror has made it impossible for human rights groups, let alone
researchers from the General Accounting Office, to monitor what has happened or might happen to
those asylum-seekers forced to return.

Those attempting to investigate the returnees' fate and human rights conditions are also at
risk. On February 12, 1992, two journalists, Alan Tomlinson, a reporter for the BBC and National
Public Radio, and Nathaniel Sheppard, a reporter for the Chicago Tribune, were illegally arrested and
detained overnight in a small village in northern Haiti by section chief Yvon Dieudonnd. They were
investigating human rights violations in the area and the treatment of forced returnees. The section
chief and his deputies severely beat the reporters' Haitian interpreters and threatened to kill the
reporters. It was only on the intervention of soldiers from Cap-Haitien that the section chief agreed
to release the reporters.

Danger lurks long after disembarkation. The United Nations High Commissioner for
Refugees has publicly admitted that it is not in a position to monitor the safety of those being returned
and the U.S. embassy, whose staff has been reduced to 28 because of the danger of living in Haiti
these days, is In no position to help. As a veteran of numerous fact-finding trips to the Haitian
countryside, I know how difficult it is to get information about abuses. People are understandably
terrified and reluctant to tell strangers who suddenly appear and just as suddenly leave information
that is critical of the very people who control the returnees' fate.

The Haitian Red Cross is in charge of resettlement; it is not an independent entity and is not a
member of the International Committee of the Red Cross. The Haitian Red Cross has blocked every
effort by Haitian human rights groups who have sought to meet and interview those forcibly
repatriated. Several independent human rights groups approached the Haitian Red Cross and asked to










interview those who were forcibly repatriated during the week of November 18. The Haitian Red
Cross refused to cooperate, saying only that "everyone has gone home." The Red Cross rejected
subsequent requests for information. The current head of the Red Cross was appointed by the ds fact
government and the organization is not impartial. Moreover, the Haitian Red Cross failed to respond
to calls for help in at least two incidents when the army had beaten and arrested young people in Port-
au-Prince. A young man was shot and killed by a soldier in the courtyard of the Red Cross
headquarters on November 8, 1991.

The U.S. Supreme Court's decision allowing the forced repatriation of Haitian asylum-seekers
combined with the Bush Administration's actions to weaken the trade embargo on Haiti has had a
devastating impact, much greater than the embargo, on the very people in Haiti that the U.S. claims
to support: the poor, human rights monitors, church groups, peasant organizations and all those
favoring the restoration of President Aristide and constitutional government. These decisions by the
U.S. judiciary and executive strengthen the position of the soldiers and members of Haiti's financial
elite who are responsible for the executions, torture, arbitrary arrests and illegal detentions.

The Bush Administration unilaterally decided to weaken the embargo imposed by the
Organization of American States (OAS), claiming that the embargo has caused widespread suffering,
particularly among Haiti's poor. Yet it is precisely Haiti's poor who support the embargo and the
restoration of democracy. The embargo has caused-suffering, but Haitians already lie on the edge of
survival, barely subsisting from one day to the next. Malnutrition, high infant mortality and diseases
long eradicated in the rest of the hemisphere mark life in Port-au-Prince's teeming slums and the
denuded countryside. Their residents have faced a dg facto embargo their whole lives.

The problem is not that the embargo has not worked but rather there has never really been an
embargo in place. All kinds of goods have arrived in Haiti by sea, air and across the porous border
with the Dominican Republic. Oil tankers have sailed into Port-au-Prince from Europe, Africa and
even other countries in the Americas bound by the OAS embargo; one tanker came from Colombia,
whose former Foreign Minister is leading the OAS-sponsored negotiations seeking the return of
President Aristide. While we applaud the recent seizure by U.S. Customs officials of an oil tanker in
San Juan, Puerto Rico that had just delivered 250,000 gallons of diesel fuel to Haiti, the incident
underscores the weakness of the OAS embargo.

Moreover, Haiti's smugglers and drug-traffickers have flourished during this period of
haphazard enforcement, capitalizing on a surge in prices due to feared shortages. Instead of creating
exceptions to the embargo, largely at the behest of certain U.S. investors in low-wage assembly plants
in Haiti, the U.S. should strengthen and extend the embargo.

The Bush Administration says it is considering freezing the assets of the financial backers of
the coup. This surgical strike against people who provide cash, food and jeeps to the army comes
months too late. Bernard Aronson, Assistant Secretary for Inter-American Affairs, testified on
October 31, 1991 before the House Sub-Committee on Western Hemisphere Affairs that the Treasury
Department was examining a list of names of alleged financiers of the coup sent by U.S. Ambassador
Alvin Adams. Over five months later, the Administration has still not acted. Yet the Bush
Administration's Treasury Department seemingly faced few "legal impediments" last week when it
froze the American assets of 46 multinational firms allegedly under the ultimate control of the Libyan
government.






66



Haitians have understandably lost all faith that the outside world will help them. It has
always been up to the Haitians to resolve their own problems, but the U.S. has special obligations as
the dominant power in the region. Our courts and executive branch have failed them miserably.
Congress can counter these blows by immediately passing the bipartisan bill introduced last week by
Senator Kennedy to help fund a civilian OAS mission to restore democracy and monitor human rights
abuses.

Congress should also grant Haitian asylum-seekers under the custody or control of the United
States, including those in Guantanamo or aboard Coast Guard cutters, temporary protected status and
suspend all forcible repatriations until Haiti's democratically-elected government is back in power.
The refusal by parliamentarians opposed to any return to constitutional government to allow a vote on
the February Protocol between President Aristide and representatives of Parliament and the Haitian
Supreme Court's recent ruling that the February Protocol is unconstitutional have contributed to a
recent upsurge in Haitians fleeing their country. Most have given up hope that Aristide will ever
return and refuse to live through another brutal dictatorship.

The Administration should press the United Nations Security Council to resume its
consideration of the situation in Haiti, in view of the continuing threats to international peace and
security it poses, particularly with regard to the flow of Haitian refugees to the U.S., Cuba, the
Bahamas, Jamaica and the Dominican Republic. The U.S. should sponsor a Security Council
resolution calling for an immediate and universal embargo on all trade, including arms and oil, with
Haiti that is binding on all UN member-states. In an analogous situation, the Umnted Kingdom and
France led a successful effort resulting in a Security Council resolution calling for an embargo on all
trade with Yugoslavia after it became clear that European Community sanctions alone were
inadequate.

The absence of order in Haiti precludes any respect for human rights and the rule of law in
that country. The human rights situation is so bleak precisely because an illegitimate military
government, backed by the section chiefs and Ton Ton Macoutes, now exercises total control of the
country. In this situation, the U.S. should urge that the government be called upon (i) to allow full
access immediately to international humanitarian organizations and (ii) to consent to the sending of a
team of United Nations-sponsored human rights workers who would remain there until the human
rights situation has drastically improved. The latter proposal was originally advocated with respect to
Iraq, by Mr. Max van der Stool, the UN's Special Rapporteur on Iraq, and supported by the U.S.
delegation to the Commission on Human Rights. Last month the Commission on Human Rights, in a
resolution also supported by the U.S-delegation, expressed its deep concern over the flagrant human
rights violations committed by the Illegal government in Haiti. The U.S. government should now
publicly declare its support for a similar UN human rights monitoring presence in Haiti.

The reaction in Haiti will be the best gauge of the correctness of these measures: it will be
the military and their civilian allies' rurn to feel despondent and isolated.






Mr. CONYERS. We are very indebted to you for that very concise
but important report.
Attorney Kurzban, welcome to the hearing.
STATEMENT OF IRA KURZBAN, LEGAL COUNSEL, HAITIAN
REFUGEE CENTER, MIAMI, FL
Mr. KURZBAN. Thank you, Mr. Chairman, and thank you for giv-
ing me the opportunity to speak here today.
The facts found in Haitian Refugee Center v. Baker support the
factual findings of the GAO. The records that the Immigration
Service kept, particularly in the early days of the interdiction pro-
gram concerning the Haitians, were in a state of chaos.
In fact, by November 12, 1991, and we are talking about a popu-
lation here of 3,000, the chief asylum officer of the United States
told his superiors to stop processing any Haitians because they had
no idea who was being screened in and who was being screened
out, because the situation was so chaotic.
The Commissioner today says he is proud of the record of the 0.3
of 1 percent error, but the truth is, we haven't addressed here
today the first 3,000 people who were sent back under not only cha-
otic conditions concerning the records, but under what are clearly
faulty procedures.
The asylum officers, although well-intentioned, who interviewed
these first 3,000 people, all of whom have been sent back, were peo-
ple who had no information concerning the political conditions in
Haiti. The officers' deposition testimony that we took under oath
indicated that they were not even given evidence concerning the
conditions in Haiti, and although they are trained asylum officers,
they had no training with respect to Haiti.
They interviewed the first 3,000 people without any information
concerning the political conditions in Haiti. We interviewed the su-
pervisors of these officers. They did not know who the President of
Haiti was. They did not know who the Prime Minister of Haiti was.
They did not know who General Cedras was. They did not know
any of the names of the organizations that Haitians were involved
in supporting President Aristide.
So, when a Haitian said to an asylum officer in early November,
"I am a member of the Ti Legliz," or, "I am a member of the
FNCD," and showed them their card, they might as well have been
showing them an American Express card, because the officer had
no idea what the significance of that information was.
Those 3,000 people, not 0.3 of 1 percent, those 3,000 people have
been sent back to Haiti. Among those, Mr. Chairman, and I would
like to read briefly from some of their testimony that was elicited
by us on Guantanamo when we were able to speak to the Haitians
on Guantanamo, was Golbert Miracle who said the following.
He was questioned. "You said your mother was killed. How was
she killed?" Answer: "When the military man came, no one would
open the door. He forced himself in. They broke down the gates and
they went in. My brother, younger brother and my sister, they
found out where I was, and once they found out where I was, they
are the ones to tell me that my mother was killed, was shot, that
my aunt was arrested, and one of my sisters was also arrested."







The testimony of Emanuel Saintil, a member of the movement of
the young of city Soleil: "My father went out to get some food to
put on the table. As he was coming home, there were some soldiers
in the neighborhood who knew me as a militant. Because they lived
in the neighborhood, they pointed the finger at my father to other
soldiers, and they had my father killed. They shot my father in
front of the Church of the Immaculate Conception in City Soleil."
Question: "You say you went out to look at your father's body.
Did you see your father's body? Yes or no?" "Yes, I had time to see
the body."
These are some of the people who have been sent back to Haiti
under the faulty procedures that were used by the Immigration
and Naturalization Service. In addition, one cannot help but notice
the gross inconsistency between our policy as expressed by our
State Department and the claims that no one is injured, no one is
persecuted upon their return to Haiti.
Amnesty International, in a report dated January 22, said the
following:
Since October, Amnesty International has continued to receive reports of grave
human rights violations. Hundreds of people have been extrajudicially executed or
detained without warrant and tortured.
Many others have been brutally beaten in the streets. Freedom of the press has
been severely curtailed, and property is being destroyed by members of the military
and police forces. The military has systematically targeted President Aristide's polit-
ical supporters. Even children have not been spared the violence in Haiti.
Our State Department tells us even today, Mr. Chairman, that
there is violence in Haiti. The President of the United States has
said, on the record, that Haiti is moving toward a totalitarian dic-
tatorship. Our ambassador, during the events in question here, was
called. U.S. citizens are given advisories not to go to Haiti.
In the face of all that, we are told today that there is no "convinc-
ing evidence," of persecution. Mr. Chairman, I am a student of poli-
tics, and I pay very careful attention to when our government
speaks and uses language like "no convincing evidence. I want to
know what that means. Does that mean that an officer at the Em-
bassy says, "I have not been convinced beyond a reasonable doubt.
I have not been convinced by clear and convincing evidence. I have
evidence here but I can't fully support it"?
As Mr. O'Neill, has pointed out here quite adequately, the ab-
surdity of sending three or four officers into a small village at one
time and questioning people in the context of a government which
everyone, including our State Department, admits is a government
that has been brutal to its own citizens, shows the absurdity of the
process of trying to make that investigation.
We know, and the National Coalition for Haitian Refugees and
other organizations which have recently come back from Haiti have
investigated, and they have found many, many people who are in
hiding, in the hundreds, in Haiti. Many of these people are people
who were returned from Guantanamo.
One of the questions we certainly have is, what has the State De-
partment done to investigate those cases? Are they saying that
they have no convincing evidence because those people have not
come forward, because they are in hiding? The question of what
interviews are being conducted, how are they being conducted, and






why hasn't the government released, at least to this committee or
to the public, those interviews.
I have had an opportunity to read some of those interviews that
the State Department has said demonstrate that there is no con-
vincing evidence. And I can tell you, Mr. Chairman, that they are
less than satisfactory examples of good investigatory work. There
are cases where it is clear that leads are not followed up; it is clear
that information which is readily available is ignored.
So, I think it is important, before we just simply accept on face
value what, 'There is no convincing evidence" means, that someone
take a very careful look at those investigatory reports, and make
some determinations as to what standard is being used and wheth-
er or not the officers are really doing a sufficient job to investigate
the problem.
Just let me turn, finally, to the question of the embargo. Mr.
Becelia, I think, candidly admitted to you, Mr. Chairman, that the
embargo has been less than a success. Two things that he has not
said today that are, I think, quite odd, are, No. 1, 5 months ago
the State Department announced that they were going to freeze the
assets of persons who were supporters of the coup. That is an un-
usual step in terms of this area, and it is an area that I know quite
a bit about from the technical side of it.
The U.S. Government has never announced before freezing the
assets of any group that they are going to do that. The obvious rea-
son for that is, Mr. Chairman, that if you announce it, and you give
people 5 months to get their assets out of the United States, they
are going to do it.
So, I think one question that must be raised is, why would we
announce it 5 months in advance if we were serious about having
the assets of those who support the coup frozen in the United
States?
Mr. Becelia has also pointed out the fact that in some sense
there is a problem with the European allies shipping oil or other
goods. That is a serious problem. What he has not said today is
that a matter that has been under discussion for months, and that
have brought to the State Department's attention, is the tightening
of the embargo by seizing any ship that violates the terms of the
embargo, whether it is a U.S. ship or not, if it is in U.S. territorial
waters.
That is the easiest and simplest way to make this embargo effec-
tive, and the reason why that has not been done can only be specu-
lated upon. European shippers call the Office of Foreign Assets
Control on a regular basis and say, "Can I deliver oil to Haiti?"
And when they are told that there is no sanction that the United
States can impose against them, then, obviously, there is no im-
pediment to them doing so.
Mr. CONYERS. There is no international law that would prohibit
the United States from acting in the fashion you recommend in
their own waters?
Mr. KURZBAN. Absolutely not. Not if it is within the jurisdiction
of the United States. If that ship comes into the jurisdiction of the
United States, we have a right to seize it, in violation of our own
laws. We do it with narcotics all the time.





70
Mr. CONYERS. Would the United States have a responsibility to
announce that to the world, or to those who may be coming in?
Mr. KURZBAN. Well, we would normally announce it, as they
have last week in other matters, by publishing regulations in the
Federal Register. But the sanction alone would be enough to stop
oil flowing to Haiti, because these shippers do not want to risk the
potential loss of their boats. Remember, that is just one shipment.
We are talking about people who have ongoing shipping concerns
around the world.
They are not going to risk shipping oil to Haiti and whatever
profit they can make in the short run with the possibility of their
ship being seized if it came to the United States 1 week, 1 month,
or 6 months from now. So it sends a clear signal to them that it
is not profitable for them to do business, and I would submit to
you, Mr. Chairman, that if we had done that in October, as was
suggested, that President Aristide would have been returned to
Haiti by November. Thank you.
[The prepared statement of Mr. Kurzban follows:]






71
















TESTIMONY OF IRA J. KURZBAN

GENERAL COUNSEL FOR THE HAITIAN REFUGEE CENTER, INC.






BEFORE THE LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE

OF THE COMMITTEE ON GOVERNMENT OPERATIONS

HOUSE OF REPRESENTATIVES






72



Mr. Conyers and Members of the Committee, thank you for

giving me the opportunity to speak with you today. Your

determination to ferret out the truth concerning the troubling

treatment accorded Haitian refugees is commendable. The Haitian

community recognizes the importance of your actions today, and

for future generations.

On February 24, 1992 by a vote of 8-1 the United States

Supreme Court denied a writ of certiorari in Haitian Refugee

Center, Inc. v. Baker to stop the forcible return of Haitians to

Haiti.1 The Justices also denied a request for a stay of the

lower court's order pending appeal. These acts temporarily ended

the Haitians' efforts to.. prevent their return to a country

described by the State Department as "violent" and by the

President as moving toward "totalitarian dictatorship."

While recalling our Ambassador due to the violence in Haiti,

while maintaining an embargo against the military junta and

denouncing its actions in cutting off democracy, and while

advising United States citizens not to go to Haiti, the

Department of State and the White House have repeatedly said that

Haitians have no fear of returning to their country. The depths

of that fear, however, were demonstrated by the testimony taken

under oath of Haitians on Guantanamo, who described in great

detail the murders of their family members and friends as the

military hunted down persons who had supported President Aristide

or who had been in any way associated with the Aristide movement.

I have attached a chronology of events concerning the
Haitian exodus since October, 1991.


-1-






73



For example, Petitioner Golbert Miracle, a member and organizer

for the Lavalas and the FNCD (both pro-Aristide groups) testified

that he fled Haiti to escape the military after his mother had

been killed and his aunt and one of his sisters arrested:

QUESTION: You said your mother was killed. How
was she killed?

ANSWER: When the military man came, no one would
open the door. He forced himself in. They broke
down the gates and they went in. ... My brother,
younger brother, and my sister, they found out
where I was and once they found out where I was,
they are the ones to tell me that my mother was
killed, was shot, that my aunt was arrested and
one of my sisters was also arrested.

Petitioner Emanuel Saintil, a founding member of a pro-

Aristide youth group, Movement of the Young of Cite Soleil, saw

his father shot dead in front of a church because of his

political affiliations:

A. ... My father went out to get some food to
put on the table. As he was coming home,
there were some soldiers in the neighborhood
who know me as a militant for MGSS. Because
they live in the neighborhood, they pointed
the finger at my father to other soldiers,
and they had my father killed. They shot my
father in front of the Church of the
Emaculate Conception in Cite Soleil.

Q. You say you went out to look at your father's
body. Did you see your father's body? Yes
or no.

A. Yes, I had time to see the body.

Deposition of Emanuel Saintil.

The Immigration and Naturalization Service also screened out

other persons who had very strong claims for political asylum.

Petitioner Condanser Joseph, founding member of a group which


- 2 -






74



performed political theatre in support of the FNCD (a pro-

Aristide organization), testified that soldiers looking for him

shot up his house, killing his younger brother. Deposition of

Condanser Joseph. Eric Pierre, a member of the FNCD, fled his

home after the military showered his home with bullets, killing

his father. Deposition of Eric Pierre. Rolande Providence, a

long-time Aristide supporter, was also required to flee after the

military shot up his house looking for him. Deposition of

Rolande Providence. Raymond Edme, a member of a group called the

AJN that was working on development projects in Haiti, had to

flee Haiti because the military were rounding up persons

supportive of President Aristide who had engaged in development

work. Deposition of Raymond Edme. Rolande Jean, a member of the

Komite Ti Legliz (the Aristide church organization), fled Haiti

after the police shot up his house and arrested his father, who

was a known Aristide supporter. Deposition of Rolande Jean.

Leger Pierre Frantz was a member and candidate of Lavalas (the

political party of President Aristide), who fled Haiti after he

escaped the military. Deposition of Leger Pierre Frantz. Moise

Charles was also forced to flee his house because the military

came to arrest him as an organizer and supporter of President

Aristide's political party. Deposition of Moise Charles. Even

persons who were listening to the Voice of America after the

military coup were arrested and beaten by the military.

Testimony of Jean Michel Mario Pavilus.


- 3 -









As a result of the military's efforts to eradicate all

support for President Aristide and all opposition to itself, it

has summarily executed over 2,000 persons and has tortured

thousands more. Haitians, such as the Plaintiffs in Haitian

Refugee Center v. Baker, began fleeing in record numbers.

Notwithstanding public perception, Haitians not only fled to the

United States, but simply fled Haiti for any destination. Many

of the Haitians interdicted since the September 30 coup were not

headed to the United States in the first place. Gaston

Jalicoeur, a lawful permanent resident aboard one of the boats,

said his boat was headed to the Bahamas when it was picked up by

INS officers. John Baker and James Schneider, INS officers on

Guantanamo, acknowledged that there were Haitians at Guantanamo

who were headed to Cuba but were picked up by the Coast Guard.

The government offered no explanation as to their authority or

justification for interfering with these Haitians' attempt to

escape persecution, let alone the authority to forcibly return

them to Haiti.

The nature and purpose of the case, due to the complex

factual and legal issues, was often lost in the press. This was

not a case about challenging the interdiction program or the

right of the President to have an interdiction program. Although

we believe such a program is morally reprehensible and

discriminatory, we understood the difficulty in challenging the

President's authority to establish such a program. Instead, we

challenged the screening procedure used by the Immigration and


- 4 -






76


Naturalization Service to determine which Haitians would be

allowed to enter the United States to seek asylum and which would

be forced back to Haiti.

This challenge, in fact, was consistent with the President's

Executive Order of 1981, which stated that while the United

States Government would interdict Haitians, it would also assure

that no persons who were refugees would be returned to Haiti.

This promise was also incorporated into the Exchange of Letters

and Agreement with the Government of Haiti. That Agreement

specifically recognized the United Nations Convention and

Protocol and international law as a source to protect refugees.

The evidence that we found in regard to the Immigration and

Naturalization Service's screening process was shocking. The

Government was using procedures, as the District Court found,

that were wholly arbitrary. The INS interviews of Haitians was

in chaos. INS officers readily admitted that they had

interviewed hundreds of Haitians without receiving any

information about the political conditions in Haiti. Depositions

of John Baker and James Schneider. They also candidly

acknowledged that they had received no training on interviewing

Haitian asylum applicants, and were literally interviewing them

in a political vacuum. Id.

On November 18, 1991, the day before the Haitian Refugee

Center filed suit, the government forcibly returned to Port-au-

Prince 535 Haitians held on the Coast Guard cutters Dallas and

Confidence. The testimony elicited from government officers


- 5 -









indicated that the persons interviewing the Haitians had

virtually no knowledge of the political conditions in Haiti, had

received no information concerning the political conditions in

Haiti until five days after these Haitians were deported, and had

received no training whatsoever concerning interviewing Haitian

asylum applicants. Deposition of Leon C. Jennings, James

Schneider and John Baker. This lack of knowledge extended to

such issues as not knowing who the President and Prime Minister

of Haiti were, not knowing who General Cedras was, and not

knowing any of the organizations that were supportive of

President Aristide. Deposition of Leon C. Jennings.

Immigration officers were also applying incorrect standards.

One officer could not even name all the grounds necessary to

obtain asylum. Deposition of James Schneider. Another officer

admitted that she had applied an incorrect legal standard, and

that those persons were not re-interviewed. Deposition of

Christina Tilbury.

In addition, record keeping was so poor and chaotic that the

INS did not know who they had agreed to screen in or screen out

and send back to Haiti. The conditions were so chaotic that the

Chief Asylum Officer of the United States concluded in a memo on

November 12, 1991 that the interview process should be suspended.

He found the interviews were "increasingly inconclusive" and

"also of rapidly decreasing validity." A superior to the Officer

returned his memo to him, did not discuss it, and through a


- 6 -






78



subordinate instructed him to "file it." Promptly thereafter his

supervisor relieved him of his pre-screening responsibilities at

Guantanamo. Deposition of Gregg Beyer.

The Haitians during this process were often subjected to

interviews that lasted only several minutes, and were never

informed of the purpose for the interview or given an opportunity

to explain their case. In Mr. Miracle's case, mentioned above,

he was told by the INS interviewer that "whatever you do, you are

going to be sent back. Whatever you do."

In short, the testimony in Haitian Refugee Center v. Baker

revealed that the pre-screening procedures were, either purposely

or through indifference, a complete and utter sham -- a "formal"

validation of a predetermined result. The District Court found

that "all [of] the individual plaintiffs described below were

interdicted at sea and, despite having substantial political

asylum claims, were 'screened out', i.e., marked for forcible

return to Haiti."

The government, of course, did not argue the factual merits

of the case as the factual record was overwhelming. Instead,

they took the position that Haitians who were outside of the

United States simply had no rights whatsoever. In effect, they

asserted that whatever totally arbitrary procedure used and

devised by the government was simply not the concern of the

courts.


- 7 -






79



The Haitian Refugee Center and the Haitians themselves

argued that they had rights under a number of different

provisions. First, they argued that they had rights under

Article 33 of the United Nations Convention and Protocol Relating

to the Status of Refugees, which is an international treaty

signed by the United States. Article 33 explicitly prevents

persons from being forcibly returned to a country where their

life or freedom would be threatened. The language of Article 33

is in absolute terms and provides that no state may send someone

back to a country where their life or freedom would be

threatened. The Haitian Refugee Center and the Haitian

Plaintiffs also argued that they had rights under the President's

Executive Order 12324 (September 29, 1981), which provided for

protection of refugees in establishing the interdiction program

and rights under the Immigration and Nationality Act, and

particularly the Administrative Procedure Act.

The issue of the Haitians' treatment, however, was only one

issue in the case. After the Haitian Refugee Center's counsel

had been given access to Guantanamo by court ordered discovery,

and after they discovered the facts discussed above, the INS

refused counsel for the Plaintiffs any access to their clients

after that date. The position of the Government was that counsel

for the Haitians in the case had no right to visit their clients

and had no right to speak with them, meet with them or to counsel

them. At the same time, the Government allowed the press,

ministers of religion and even other lawyers not representing the


- 8 -






80



Haitians to visit Guantanamo. The case therefore posed two other

important issues. First, could the Government when they are a

defendant in a lawsuit prevent counsel for the plaintiffs the

right to speak with or to meet with their clients. Second, could

the Government, consistent with the First Amendment to the United

States Constitution, selectively deny to attorneys and advocacy

groups such as the Haitian Refugee Center -- while granting to

the press, the clergy, lawyers not of record and others -- access

to meet and consult with Haitian members of a certified class of

litigants who are their clients. The government was actively

involved in determining the content of speech that United States

citizen lawyers and organizations may provide to Haitians on

Guantanamo. INS officials candidly admitted under oath that they

did not want the Haitian Refugee Center's lawyers, or any

lawyers, on Guantanamo because they would advise the Haitians "as

to the process" and thus infect it. Deposition of John Cummings.

In a shocking per curiam (2-1) decision, the Eleventh

Circuit said that since the Haitians had no rights under any

international agreement or domestic law, as we argued, that it

would be "nonsensical" to allow lawyers to speak with or meet

with them. Judge Hatchett issued a dissenting opinion.

Recognizing that counsel for the Haitians could advise them of a

whole series of rights, not only with respect to their INS

proceedings but with other matters as well, Judge Hatchett noted

that the panel majority's conclusions were reached by ignoring

existing, binding en banc precedent, by alleging facts


- 9 -






81



"unsupported by the record before the Court," and by flouting "a

recognized canon of the legal profession [that] lawyerss must

have access to their clients so they may advise them of potential

rights and causes of action in American courts." Finding also

that "the record reveals that the government has, indeed,

discriminated against Haitian Refugee Center based on the content

of its speech," and that "it has denied such access to the

Haitian Refugee Center lawyers who seek to assist the Haitians in

understanding and navigating through the predicament in which our

government placed them," he would have ordered the respondents to

grant such access subject to reasonable time, place and manner

restrictions.

Notwithstanding these serious issues, the Supreme Court on

February 1, 1992 granted a stay to the Government which had the

effect of permitting them to deport Haitians to Haiti and on

February 24, 1992 denied the petition for certiorari.

The nature of this case from beginning to end was

extraordinarily political. For the third time in United States

legal history, the Solicitor General of the United States argued

the case on behalf of the Executive Branch in a United States

District Court, as well as in the Court of Appeals and the

Supreme Court. Only in the Steel Seizure Case and perhaps one

other case since then has the Solicitor General of the United

States argued in a United States District Court.


- 10 -







82



In addition, the policy decisions concerning the case were

not made by the INS or even the Department of State. The issues

were directed from the National Security Council and the White

House. President Bush, apparently concerned about attacks by the

right wing extremists of his party, Buchanan and Duke, used the

Haitians, in an election year, to show how tough he could be on

immigration policy. The Congress appeared only slightly more

concerned. George Mitchell, the titular head of the Democratic

Party and a former federal judge, applauded the Supreme Court's

decision on February I, 1992 to grant a stay to the Government

(thereby allowing the Government to forcibly return the

Haitians), notwithstanding-the fact that Plaintiffs' counsel were

given only an hour and a half to answer the Government's petition

and the Court ruled three hours later. Indeed, Justice Thomas,

no supporter of the Haitians or the issues in the case, was so

upset by the Supreme Court's rush to judgment on February 1, that

he dissented from the granting of the stay.

The week of February 24, 1992, when the United States

Supreme Court denied certiorari in this case, marked the 50th

Anniversary of the" first incarceration of Japanese-Americans.

This case and Korematsu -- the decision upholding the internment

of Japanese-Americans -- have striking parallels. In both cases

the Government used grossly inflated and ultimately false

information to persuade the courts that this was a matter of

great national security. In both cases, the courts instead of

performing the historic role of protecting insular minorities,


- 11 -










simply, as Judge Hatchett noted in his dissent, "rolled over."

The collapse of the courts, and even of some members of Congress,

in the face of concerns over black refugees entering the United

States is a shameful reminder of how little we have progressed in

the fifty years since the Japanese internment cases and the

return of Jewish refugees aboard the St. Louis on the voyage of

the damned.

THE GAO REPORT

The recent GAO Report confirms a number of our own findings

and those of the District Court. The Report, after investigation,

concluded that inadequate processing of Haitians on Guantanamo

resulted in persons with credible claims being mistakenly

repatriated. This finding is consistent with the chaotic

circumstances evidenced by INS' own statements, as well as the

statements of Haitians subjected to INS procedures.

Other findings of the GAO, however, are more open to

question. Its claim, for example, that screening and living

conditions for the Haitians are adequate is contradicted by the

evidence in both Haitian Refugee Center v. Baker and Haitian

Centers Council, Inc. v. McNary. The screening procedures used

by INS during October and most of November, 1991, when over 3,000

Haitians were "screened out" was found by the District Court to

be wholly "arbitrary." Although on paper the procedures may

appear to be adequate, in practice they were quite different.

INS officers interviewed Haitians with no training or knowledge

about Haitian politics or culture, and in some cases without even


- 12 -








84



knowing the proper standard to apply. Haitians were subjected to

interviews that amounted to no more than 5-7 minutes and were

never asked any relevant questions about organizations that they

were involved in. Although the lawsuit prompted better training

and a higher rate of screened in persons, once the litigation

ended the INS reverted, as they have today, to screening persons

on Coast Guard cutters.

The conclusions of the GAO concerning interview conditions

may have been reached when there were few people remaining at

Guantanamo to be screened. However, at the start of the

litigation, and today, Haitians remain on Coast Guard cutters

where screening cannot be seriously conducted.

Similarly, the living conditions, which are described as

adequate by the GAO; were likely based upon conditions at

Guantanamo. However, at the initiation of the litigation and at

the present time Haitians are being kept on Coast Guard cutters.

Haitians were crammed on decks of Coast Guard cutters, exposed to

the elements day after day, with no space, no available sanitary

conditions and no ability to have meaningful interviews. Haitian

psychologist Claude Charles, who interviewed Haitians on Coast

Guard cutters in late November, 1991, stated the following:

All of those restrained individuals are living in
very hard daily conditions such as using limited
rough and problematic sanitary accommodations,
eating food they were not familiar with back home
which is rendering many of them sick, congregating
and sleeping on the deck floor over a laid
blanket, often exposed to unpleasant circumstances
aggravated by lack of decent living space.


- 13 -






85



Dr. Charles concluded after interviewing Haitians on the

Courageous and the U.S. Tortuga that "many individuals are

presenting serious signs of delusional thought because of too

harsh confinement after their traumatic experience in Haiti and

at sea." Today, the government has reverted back to keeping

Haitians on Coast Guard cutters and interviewing them on the

cutters instead of at Guantanamo. The same conditions remain and

the GAO Report does not address those conditions.

The GAO also concluded that the Department of State did not

withhold key information from the courts. This statement is

clearly inaccurate in several respects. First, the Department of

State officials, in their affidavits which were submitted to the

Court of Appeals and the Supreme Court in a successful effort to

obtain a stay which allowed the government to repatriate

Haitians, made significant material misrepresentations. For

example, one State Department official said that there were

"credible reports" which suggest "that perhaps as many as 20,000

more Haitians are massing on one of Haiti's coasts preparing to

depart by sea for the United States." In fact, there was no

massing at all. When his deposition was taken, the State

Department official admitted that he was not certain and

retracted the use of the term "massing". What he really meant to

say was that "there were significant and large numbers of

Haitians who were preparing to leave, not that they were gathered

in some huge group." Deposition of Bernard Aronson. Contrary to

the statements made in his affidavit, which were presented to the


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86



United States Supreme Court and the Eleventh Circuit Court of

Appeals, he was quite unsure as to the number of Haitians, how

prepared they were, when they were supposed to come, and indeed,

whether or not they were going to come at all.

The affidavit used by the State Department official also

contained other speculative information in the form of "credible

reports," which were never disclosed to persons representing the

Haitians, or even to the Court en camera. The mass exodus, of

course, never occurred, nor was there any proof that the Haitian

military junta was using the refugees as a "lever of

manipulation" as the State Department official suggested.

In the same manner, thd State Department misled the Court by

claiming that there was no credible evidence that Haitians were

persecuted upon their return. They did not state, either to the

Court or to the American public, that no formal investigation had

been conducted from 1985 until February, 1992. The investigations

conducted subsequent to that time never asked the question

whether someone would be persecuted because of their political

views. Instead, the investigation addressed only the question of

whether Haitians would be persecuted because they were sent back

to Haiti. The actual investigations have never been revealed to

the public. However, at least some of those investigations

indicate that they were poorly done and were not designed to

fully investigate the claims. This includes the so-called

investigation of the 42 people who were reinterdicted after

having fled Haiti a second time.


- 15 -






87



Similarly, another State Department officer's claim that the

border with the Dominican Republic is wide open and can be used

to allow Haitians to flee from Haiti and that there is a

relationship between the down turn in economic conditions in

Haiti and people leaving by boat, are both seriously in error.

Affidavit of Robert Gelbard. First, the Dominican government has

not opened its border to Haitians fleeing Haiti, and in fact, has

recently prevented news reports supportive of President Aristide

from being broadcast on Dominican radio into Haiti. The claim

that there is a correlation between a down turn in economic

conditions and Haitians fleeing by boat is clearly belied by the

events of the last year. The lowest number of Haitians

interdicted in the last ten years came during the seven month

period of President Jean Bertrand Aristide's democratically

elected government. As soon as that government was overthrown

the numbers of refugees soared. For anyone who has studied Haiti

for a prolonged period of time, the notion that "worsening"

economic conditions would have an effect on persons leaving is

simply absurd.

Moreover, this State Department official also claimed that

there is a relationship between Haitians leaving and the embargo.

However, this conclusion ignores the fact that the first

boatloads of Haitians left Haiti at the very beginning of

October, 1991 -- before the embargo was even in effect -- and

that small numbers of Haitians are currently leaving Haiti.


- 16 -






88



The GAO's findings also ignore other types of evidence that

were misrepresented or withheld from the Court. For example, the

so-called "credible reports" or "investigatory reports" were

never provided to the Courts en camera or otherwise. Nor did the

Department of State provide to the Court, when it submitted its

affidavits, information that 42 people had fled Haiti a second

time, although that was in their possession for a substantial

period of time before the affidavits were submitted. It was only

because the information was publicly released another way that

the Department of State admitted their existence.

In addition, the GAO Report ignores all the other

misrepresentations that were made by other government agencies to

the United States Supreme Court and the lower courts. Other

affidavits were submitted to the Court which were not even part

of the record in the case, and were either a sham or wholly

disingenuous. For example, the government relied on a

declaration by Robert K. Wolthuis. Mr. Wolthuis' affidavit,

however, was a sham. He was presented as acting in the capacity

of the Assistant Secretary of Defense in his declaration, when

his deposition revealed that he had assumed that position for one

day, and one day only -- the day he signed the declaration.

Wolthuis' Deposition at 5-6. Mr. Wolthuis admitted that he had

never served in that capacity before, he resigned it after the

signing, and has not acted in that capacity since. Wolthuis'

Deposition at 6. Moreover, although he stated in his declaration

that he "has been closely and regularly involved in the


- 17 -






89



formulation and implementation of U.S. policy concerning the

Republic of Haiti," he stated in his deposition that he had only

a vague understanding as to what the policy was, was not involved

in formulating the policy, was aware of no written or other

formal memorialization of any such policy, and was only involved

in the matters to which he swore for part of one day. Wolthuis'

Deposition at 10-13. Wolthuis, in fact, simply signed a

declaration which was handed to him and prepared for him by the

government's lawyers, readily admitting that the sole basis for

most of the facts that he swore to in his declaration were what

the lawyers who had drafted it told him. Wolthuis' Deposition at

31-34. The declaration was so defective and based upon

fraudulent assumptions that the plaintiffs filed a separate

memorandum concerning the declaration.

The government also relied on the affidavit of Admiral

Leahy, which asserted that allowing a representative from the

Haitian Refugee Center on Coast Guard cutters "would seriously

interfere with the performance of [its] missions, and also create

substantial threats to the safety of all involved." Leahy

declaration of January 29, 1992. This statement was repeated by

the Court of Appeals in its decision to deny HRC access to the

Coast Guard cutters. Mr. Leahy, in his deposition however,

acknowledged that family members of Coast Guard members

periodically go on Coast Guard cutters, and that his 14 year old

son was on a Coast Guard cutter (that was on a law enforcement

mission while maintaining defense readiness) for a two-week


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90



period. Leahy Deposition at 43. In addition, Leahy acknowledged

that press members, VIPs and other persons were taken on Coast

Guard cutters during the interdictions after the Aristide

overthrow, while Haitian Refugee Center was being denied access.

Leahy Deposition at 41.

The GAO also found that while all parties agree that

political opposition has been effectively repressed in Haiti,

that there are no credible reports of repatriated persons being

persecuted and that the claims of persecution appear to be based

on unverified testimony. First, it is difficult to understand

how the GAO can separate the fact of total repression in Haiti

and the ability to conduct'a meaningful investigation. The State

Department, of course, has not conducted an investigation into

whether or not persons who are returned are persecuted because of

their political beliefs. Rather, it has only conducted an

investigation -nto whether persons are persecuted because they

are returned from Guantanamo. Second, there is continual

evidence of mass graves of political opponents of the military

junta in Haiti, as well as continual repression of persons who

are even perceived to be Aristide supporters. The ability to

accurately determine whether or not a particular individual has

been persecuted upon return in an environment where there are

continuous summary executions and torture, is highly

questionable. The evidence that exists, from the only sources

that could testify are from those in church organizations in


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91



Haiti who have consistently reported to ABC News, National Public

Radio and to persons in the United States who have reported that

retaliation and persecution against persons who fled does exist.

The GAO's Report that "no credible claims," (a term used by

the State Department) as opposed to no verifiable claims exist,

is more than a semantic difference. As the Department of State

conducted no investigations for eight years, it is not surprising

that they would not have information or serious contacts to

verify such claims. The mere fact of their inability to verify

does not suggest that the claims are not credible.

Moreover, all human rights organizations investigating Haiti

indicate that the political repression is rampant in Haiti. On

January 22, 1992 Amnesty International issued their report

concerning the current situation in Haiti and stated:

Since October Amnesty International has continued
to receive reports of grave human rights
violations. Hundreds of people have been extra-
judicially executed, or detained without warrant
and tortured. Many others have been brutally
beaten in the streets. Freedom of the press has
been severely curtailed and property is being
destroyed by members of the military and police
forces or by civilians operating in conjunction
with them. The military has systematically
targeted President Aristide's political supporters
... grass roots organizations, which had
flourished during the seven months of President
Aristide's government, have been virtually
eradicated, their equipment and premises
destroyed, and most of their activists in hiding;
women's groups, peasant development groups, trade
unions, church groups and youth movements have all
been the victim of severe repression. Even
children have not been spared the violence in
Haiti. Thousands of people have been forced into
hiding.


- 20 -











The report goes on to talk about widespread torture in Haiti

and other forms of repression. Similarly, National Public Radio

has reported villages razed to the ground by section chiefs and

military personnel. The Senate Immigration and Refugee

Subcommittee's investigation also revealed similar repression.

In these circumstances, it is difficult to understand how the

government can conclude that people would not be persecuted upon

their return.

Most recently, the National Coalition for Haitian Refugees

has documented numerous instances of persons forcibly returned to

Haiti from Guantanamo who are in hiding as a result of the

continuing repression in. Haiti. The Coalition has also

documented continuing widespread political repression, torture,

summary executions, and illegal detentions in Haiti.

I hope this testimony has been of some assistance to the

Committee. I will be happy to answer any questions.


- 21 -














September 30, 1991


October 3, 1991


October 28, 1991


November 10, 1991



November 18, 1991







November 19, 1991







November 21, 1991



November 28, 1991



November 30 and
December 1, 1991


summary Chronology
of Haitian Refugees
on Guantanamo


Father Aristide is overthrown by a
brutal military junta.

First Haitians fleeing Cedras' military
arrive in Miami by boat.

First Haitian boat is interdicted by the
Coast Guard.

Coast Guard cutters begin mooring at
Guantanamo because of the number of
Haitians fleeing Haiti.

538 Haitians are forcibly repatriated to
Haiti aboard the Coast Guard cutters
Dallas and Confidence after being
interviewed by INS officers who were not
given any information on the political
conditions in Haiti prior to the
Haitians' forced return.

Haitian Refugee Center, Inc. files a
verified complaint and temporary
restraining order in the United States
District Court, Southern District of
Florida, and the Honorable Donald Graham
enters an order temporarily restraining
the Coast Guard from returning Haitians.

Court of Appeals denies the Government's
attempt to vacate the TRO and to block
any discovery.

Defense Department decides to establish
a tent city at Guantanamo and places
structure up with 3 days.


Lawyers are granted court ordered
discovery on Guantanamo after INS
refuses to bring witnesses to U.S.
Discovery reveals that Haitians are
fleeing Haiti because of military
brutality. Seventeen Haitians on
Guantanamo are named in the lawsuit, as
well as a class of all others not
screened in by INS. HRC and its lawyers
are thereafter barred from Guantanamo



1 -


68-236 93 4













December 3, 1991







December 17, 1991
(6:00pm)






(10:00pm)



December 18, 1991



December 19, 1991



December 20, 1991




December 23, 1991




December 27, 1991






January 22, 1992


although the press, ministers and other
lawyers, not representing the Haitians,
are permitted.

The Honorable C. Clyde Atkins of the
United States District Court, Southern
District of Florida, based upon Article
33 of the U.N. Protocol and the First
Amendment, issues an injunction against
repatriation until the Government
provides adequate screening or until a
trial on the merits.

In a 2-1 per curiam opinion, the Court
of Appeals reverses the December 3, 1991
preliminary injunction on Article 33
grounds (as not self-executing), while
refusing to consider other issues. The
Court of Appeals issues its mandate
forthwith.

TRO is granted by District Court on the
APA issues. Hearing on preliminary
injunction is set for December 20, 1991.

The Goverment appeals from the TRO,
seeks stay, summary reversal and
mandamus.

The Court of Appeals (2-1) declares the
TRO a preliminary injunction and stays
it pending appeal.

The District Court enters a preliminary
injunction on First Amendment grounds
consistent with the December 15, 1991
holding of the Court of Appeals.

The District Court enters a preliminary
injunction on the APA claim which it
stays simultaneously with its issuance
pending appeal.

Plaintiffs HRC and class members seek en
banc review of December 17, 1991 Panel
Article 33 Order. The Court of Appeals
consolidates all other appeals and sets
an expedited briefing schedule with all
briefs due by December 31, 1991.

Oral argument is heard on the
consolidated appeals.


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January 27, 1992




January 29, 1992



January 30, 1992





January 31, 1992
(11:00am)



(3:10pm)



(3:40pm)






(8:00pm)







February 1, 1992




February 1, 1992





February 4, 1992


While the appeals are sub judice, the
Government "supplements" its stay motion
in the Court of Appeals with new
affidavits not presented below.

The Government submits four more extra-
record affidavits to the Court of
Appeals.

The Government seeks a stay of the
December 20, 1991 District Court Order
in the Supreme Court, while a stay
motion is pending in the Court of
Appeals.

The Court of Appeals issues a stay of
all District Court Orders pending
appeal, thus mooting the Government's
stay application in the Supreme Court.

The Court of Appeals announces that its
ll:00am stay order was issued by
"clerical error" and is rescinded.

Counsel for HRC are informed that they
must submit responsive papers to the
Government's Supreme Court stay
application in less than two hours, by
5:30pm. Certain responsive papers are
filed.

The Supreme Court (6-3) grants the
Government's application for a stay of
the District Court's injunction of
December 20, 1991, pending discussion of
the Court of Appeals. This permits the
Government to begin to forcibly return
Haitians to Haiti.

The Court of Appeals announces a second
"clerical error" and rescinds its 3:30pm
order rescinding its ll:00am order, thus
reinstating its stay.

The Government begins forcibly returning
Haitians to Haiti. The military junta
fingerprints and photographs each
Haitian as they arrived in Port-au-
Prince.

The Court of Appeals issues a (2-1) per
curiam opinion reversing the District
Court's injunction on First Amendment


- 3 -















February 10, 1992






February 24, 1992



March 17, 1992







March 17, 1992







April 7, 1992


and APA grounds. The Court of Appeals
orders the District Court to dismiss the
case and issues its mandate immediately.

HRC files a petition for writ of
certiorari in the United States Supreme
Court and an application to stay the per
curiam decision of the Court of Appeals
to prevent Haitians from continuing to
be deported.

The United States Supreme Court denies
certiorari and denies HRC's application
for a stay.

By this date the U.S. Government had
interdicted 16,464 Haitians and forcibly
returned 9,542 to Port-au-Prince.
Approximately 3,300 Haitians who were
suppose to be brought to the United
States as "screened in" remained on
Guantanamo.

Plaintiffs "screened in" on Guantanamo
and organizations in New York City file
a complaint in the Eastern District of
New York and request emergency relief to
insure that Haitians on Guantanamo have
a right to consult with their counsel
and to prevent their deportation.

Judge enters order granting preliminary
injunction.


- 4 -