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Published on Monday, December 10, 2007 by The New York Times

US Is No Haven, Canadian Judge Finds

by Adam Liptak

Late last month, a federal judge in Canada ruled that the United States had violated international conventions on torture and the rights of refugees.

The decision has caused quite a stir in Canada. The Globe and Mail, a Toronto newspaper, said it was "outrageous, and has the whiff of Canadian cultural superiority about it."

The decision, by Justice Michael L. Phelan, does at first blush sound like a judicial stunt. You don't often see judges instructing their own governments about how to conduct foreign affairs. It is less common still to see them engaging in freelance diplomacy by chastising foreign governments.

Justice Phelan's decision was, moreover, based on affidavits from about a dozen American professors and lawyers. However sound their criticisms of American practices were, it was odd to see them addressed to a foreign judge. The mix of aromas surrounding the decision included a whiff of forum shopping.

And yet.

There was a sound legal reason for Justice Phelan to be addressing American practices and policies. The case concerned a 2002 agreement between the United States and Canada on the treatment of people fleeing persecution from other places, and the agreement itself requires compliance with international conventions on refugees and torture.

Under the deal, which became effective three years ago this month, people from other countries entering Canada from the United States by land could no longer ask for asylum, on the theory that they should have done so in the United States. (The agreement works in reverse, too, but most refugee traffic moves north.)

You get one bite at the asylum apple, the agreement says, because you will get a fair shake in either country.

But the deal, known as the Safe Third Country Agreement, sets conditions based on the international conventions, and Justice Phelan said the United States had in recent years not lived up to them. He acknowledged that an English court had turned back a similar challenge to American refugee policy in 2000. But things have changed since the Bush administration came to power, Justice Phelan said, and the reasons given in the English decision "clearly relate to a different time."

Justice Phelan declared the 2002 agreement invalid.

It is not entirely clear what follows from that decision. The parties have further briefs to submit, and an appeal is likely. But it certainly seems possible that many thousands of refugees will again become able to make asylum claims in Canada.

That should not be a cause for alarm, said Philip G. Schrag, a law professor at Georgetown who submitted an affidavit in the case.

"Some people will arrive at Kennedy airport and they'll take the bus up to Montreal," Professor Schrag said, "and they'll be processed where they wanted to be processed in the first place."

Justice Phelan writes with the opposite of flair. (On Tuesday, an appeals court in California issued a warning at the beginning of an unrelated decision that should have been affixed to this decision, too: "We think it only fair to suggest that the reader might want to be sitting in a comfortable chair, with a cup of strong coffee nearby.")

In his studiously technical 124-page decision, Justice Phelan found that a one-year deadline for filing asylum claims here, enacted by Congress in 1996, had been applied in recent years in ways that violated the international convention on refugees.

He found a similar flaw in a provision of the USA Patriot Act that, as interpreted by the Bush administration's immigration courts, allows people to be excluded for providing material support to terrorists - even if the support was coerced or under duress.

In other words, providing food at gunpoint may be material support of terrorism, as is paying ransom for a kidnapped relative.

Justice Phelan's decision also cited the findings of a Canadian commission in the case of Maher Arar, a Canadian whom the United States sent to Syria, where the commission said he was tortured.

Canada has paid him more than $10 million, which is one way to respond to his ordeal. Secretary of State Condoleezza Rice recently conceded in general terms that the matter had not been "handled as it should have been," which is another.

Justice Phelan said the "real life" example of Mr. Arar made the contention that the United States does not comply with the torture convention "credible."

Peter J. Spiro, a law professor at Temple University and the author of a new book called "Beyond Citizenship," said the issues discussed by Justice Phelan were "debatable and unstable." But, he added, "there is nothing that is way out on a limb about this opinion."

American officials declined to discuss the details of Justice Phelan's critique.

"The United States has a proud record of accepting and protecting refugees, defending human rights and adhering to our treaty obligations," David H. Wilkins, the United States ambassador to Canada, said in a statement read by a spokeswoman. "This is why the United States welcomes more refugees than any other country in the world and remains a beacon of hope and liberty."

Justice Phelan's decision has received almost no attention in the United States, to the frustration of the plaintiffs in the suit.

"Canada, which has a lot of respect for the institutions and traditions of the United States, was forced to conclude that the U.S. is violating refugees' rights," said Janet Dench, the executive director of the Canadian Council for Refugees, one of the plaintiffs in the suit.

"It should be a wake-up call," she said, sounding a little plaintive.

© 2007 The New York Times

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