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Mariel Cubans entitled
to real due process
By Mark Dow. Posted on
Thu, Oct. 21, 2004 in The
Miami Herald.
They are not suspected terrorists. They
are not ''enemy combatants.'' They are not
even charged with a crime. But on Oct. 13,
in Clark vs. Martinez and Benitez vs. Rozos
before the U.S. Supreme Court, the Bush
administration defended the executive's
authority to imprison them on U.S. soil
until they are dead.
Allowed to depart the island in 1980 from
the port of Mariel, some 125,000 Cubans
came to the United States over a six-month
period. Many of them have committed crimes
here, and detention typically begins on
completion of a criminal sentence for anything
from murder to shoplifting -- though one
Mariel Cuban was locked up for not being
able to afford medical care. Cuba will not
take them back, and the United States says
that it can detain them for any length of
time.
Detained forever?
In 2001 at least 160 Mariel Cubans had
been detained by the Immigration and Naturalization
Service for a decade or more after completing
criminal sentences, according to journalist
Dan Malone. Many do get released, but the
immigration service can detain them again,
as one court put it, for "almost any
reason.''
The Department of Homeland Security's Bureau
of Immigration & Customs Enforcement
is authorized to detain non-U.S. citizens
so that it can deport them. In 2001 the
Supreme Court ruled in Zadvydas vs. Davis
that when a detainee's deportation cannot
be carried out within a ''reasonably foreseeable''
period, defined by the court as six months
in most cases, she must be released. Obviously
the Zadvydas ruling applies to immigrants
who are present the United States.
But the government argues that it does
not apply to the Mariel Cubans, who have
been here since President Jimmy Carter welcomed
them 25 years ago. That's because the Mariel
Cubans were ''paroled'' into the United
States by the executive and are thus legally
considered not to have "entered.''
Exploiting this so-called entry fiction
-- never intended to apply to circumstances
like those of the Mariel refugees -- the
U.S. government argues that the 917 Mariels
currently in detention have no right to
be free from detention here, ever.
'Annual reviews'
Yet in the government's duplicitous logic,
because the prisoners receive annual custody
reviews by low-level bureaucrats, their
detention is not ''indefinite'' at all.
Never mind that those ''annual reviews''
are often not given annually, that the decisions
are notoriously arbitrary, that there is
no appeals process and that legal representatives
are regularly barred from the reviews in
violation of the government's own guidelines.
In the words of a classic Supreme Court
decision: "Whatever the process authorized
by Congress is, it is due process as far
as an alien denied entry is concerned.''
After doing time on drug charges, a Mariel
Cuban woman was denied release by the INS
because she had nowhere to live. Denied
her anti-depressant medication, she became
suicidal, and after a subsequent custody
review, she was denied release because of
a suicide attempt. Even the warden of the
Louisiana jail holding her for the federal
government had recommended her release.
''The last thing they have to do is just
kill us,'' she said, "but, see, they
can't do that.''
Or can they? If Mariel Cuban prisoners
are not entitled to any more ''due process''
than the administration claims, wrote the
Sixth Circuit Court of Appeals in 2003,
"we do not see why the United States
government could not torture or summarily
execute them.''
Last week, Supreme Court Justice John Paul
Stevens raised the same question, wondering
whether the government could just ''shoot''
the Mariel Cubans. Government attorney Edwin
S. Kneedler replied ''Absolutely not'' --
but gave no answer when Stevens asked why.
Here for 25 years
This case, in other words, is less about
the ''hordes of aliens'' conjured by Kneedler
than about the limits of executive authority.
Justice David Souter tried to find a limit
when he asked, ''Isn't there a point at
which the fiction'' of no-entry can no longer
be applied? After all, the Mariel Cubans
have been here for a quarter century. One
hopes that a majority of Supreme Court justices
will decide to set a limit, acknowledging
the real lives behind the razor wire of
legal fictions.
Mark Dow is author of American Gulag: Inside
U.S. Immigration Prisons.
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