Group Argues That Secret Promises Not To Torture Are Inherently Unreliable

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PHILADELPHIA – The American Civil Liberties Union and ACLU of Pennsylvania were in a federal appeals court today challenging the government's efforts to deport an Egyptian torture victim. The government claims to be relying on unreviewable "diplomatic assurances" from Egypt that it will not torture him upon his return. Last January, in the first decision of its kind, a federal district court sided with the ACLU and ordered the government to stop the deportation of Sameh Khouzam based on such secret and unreliable promises and release him under conditions of supervision. However, the Bush administration appealed this ruling, claiming that the executive branch has unfettered authority to deport Khouzam and to detain him indefinitely pending his legal proceedings.

"Due process and U.S. treaty obligations under the Convention Against Torture prohibit Mr. Khouzam's return to Egypt based on that country's inherently unreliable – and unreviewable – assurances that he will not be tortured," said Amrit Singh, a staff attorney with the ACLU Immigrants' Rights Project who argued before the court today. "The appeals court ought to reject the government's attempts to unilaterally override a previous court holding that barred his deportation to Egypt in light of the risk of torture he faces there."

Khouzam, a Christian who came to the United States in 1998 fleeing religious persecution in Egypt, was granted protection from deportation under the Convention Against Torture (CAT) in 2004 after a federal appeals court found that he would likely be tortured if sent back to Egypt.

Despite this finding, as well as State Department reports showing that Egypt routinely engages in torture, the U.S. government tried to summarily deport Khouzam to Egypt based on "diplomatic assurances" the U.S. claims to have received from the Egyptian government that it asserts are "sufficiently reliable" to protect him from torture.

In his January decision, Judge Thomas I. Vanaskie of the U.S. District Court for the Middle District of Pennsylvania soundly rejected the Bush administration's position. Stating that Khouzam "made a credible showing that he had been the victim of torture at the hands of Egyptian law enforcement," Judge Vanaskie dismissed the Bush administration's claim that the executive branch has unfettered authority to remove Khouzam. The judge also noted that removing Khouzam based on diplomatic assurances without court review would render the procedures established for seeking protection under the Convention Against Torture "a farce." He added, "Not even the President of the United States has the authority to sacrifice…the right to be free from torture." 

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

"We are hopeful that the court will agree that this administration cannot simply eliminate the role of the courts in reviewing the government's actions," said Lee Gelernt, a senior staff attorney with the ACLU Immigrants' Rights Project who also argued before the court today.

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

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

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

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

Judge Vanaskie's decision is available at:
www.aclu.org/immigrants/asylum/33580lgl20080110.html