HAITIAN REFUGEE CENTER

v.

CIVILETTI

I. Introduction 450

A. Limits of Immigration Law 452

B. Asylum Rights: Substantive 453

C. Asylum Rights: Procedural 454

II. Threshold Legal Issues 456

A. Jurisdiction 457

B. Justiciability 461

1. Mootness 462

2. Timing of Judicial Review 467

3. Political Question 470

4. Standing 473

III. Conditions in Haiti 474

A. Haitian Refugees: Treatment on Return 476

1. A Pattern of Persecution 476

2. The State Department Report 482

a. Composition of the Study Team 486

b. The Sample 487

c. Assurances to Returnees 488

d. The Interviews 491

e. Conclusion 492

B. Haitian Prisons: Persecution Exemplified 493

C. Haitian Power: The Rule of the Duvalier Security Forces 497

D. Haitian Legal Systems: The Absence of a Rule of Law 500

E. Haitian Politics: Suppression of the Opposition 503

F. Haitian Society: Suppression of Free Voices 506

6. Haitian Economics: The Economics of Repression 507

H. Conclusion 510

IV. INS Treatment of Haitian Asylum Claims 510

A. The Has+ian Program: Intentional Discrimination 511

1. The Haitian Problem 511

2. The Goals of the Haitian Program 512

*450 IV. INS Treatment of Haitian Asylums Claims — Continued

A. The Haitian Program: Intentional Discrimination — Continued page

3. Implementation at the District Level 516

4. Conclusion: Discrimination 518

B. The Haitian Program: Systematic Due Process Violations 519

1. Immigration Judge Action 519

a. Failure to Suspend Deportation Proceedings 520

b. Derogation of the Right to Remain Silent 521

c. Time Limits 521

d. Conclusion 523

2. Cumulative Effect of Accelerated Process 523

a. Mass Scheduling 523

b. Cumulative Effect 525

c. Conclusion 526

3. Conduct of Asylum Interviews 526

4. Asylum Decision-Making 527

5. Other Asylum Procedures 529

a. Public Access to Prior Decisions and Nonrecorded

Matter 529

b. Use of Form Letter Denials 530

c. Accuracy of Translation 530

d. Failure to Advise Haitians of Rights Prior to Taking

Statements 530

6. State Department Participation in Asylum Decisions 531

7. Deprivation of the Haitian Refugee Center’s Right to Free

Speech 531

C. Conclusion 532

V. Relief 532

FINAL ORDER GRANTING RELIEF

This case involves thousands of black Haitian nationals, the brutality of their government, and the prejudice of ours. Perhaps thirty thousand Haitians have flocked to the shores of South Florida over the past twenty years, fleeing the most repressive government in the Americas. From among that group come the plaintiffs: five thousand persons who have sought political asylum in the United States. They claim that if they are returned to Haiti they will face persecution, imprisonment and death. All of their asylum claims were denied by the Immigration and Naturalization Service.

For the most part, the plaintiffs reached the United States in old, small, leaky wooden sailboats. The boats are dangerously overcrowded, but these Haitians continue to brave the elements across eight hundred miles of open sea. The vast number spent weeks adrift without food or water. Many died in the attempt:

When I heard the news, I went to Freeport. When I entered the morgue, I saw my wife lying there with the four children. I had nothing in my hand. It was only myself and God there.

Constant Louis, Tr. at 1195-96.

This case has forced the court to confront a profound set of questions: Why have so many taken such great risks? What do they flee? Why do they fear to return?

In searching for the answer to these and other questions, the court has seen a stark picture of how these plaintiff-immigrants will be treated if they return to Haiti. And it has seen an equally stark, and even more troubling, picture of the treatment of Haitians by the Immigration and Naturalization Service.

I. INTRODUCTION

The plaintiffs seek political asylum in this country. Hence, this case calls into question many of the intricacies of asylum pro *451 cedures before the Immigration and Naturalization Service (INS). The court must examine the minutiae of those procedures to determine if the plaintiffs were accorded fundamentally fair due process. One central issue, however, overshadows this entire case: unlawful discrimination. The plaintiffs charge that they faced a transparently discriminatory program designed to deport Haitian nationals and no one else. The uncontroverted evidence proves their claim.

The Haitians allege that the actions of INS constitute impermissible discrimination on the basis of national origin. They have proven their claim. This court cannot close its eyes, however, to a possible underlying reason why these plaintiffs have been subjected to intentional “national origin” discrimination. The plaintiffs are part of the first substantial flight of black refugees from a repressive regime to this country. All of the plaintiffs are black. In contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black. Prior to the most recent Cuban exodus, all of the Cubans who sought political asylum in individual⁸ C.F.R. Sec. 108 hearings were granted asylum routinely.¹ None of the over⁴,000 Haitians processed during the INS “program” at issue in this lawsuit were granted asylum.² No greater disparity can be imagined.

In contrast to the discriminatory practices of INS, local government and private charity groups have tried mightily to help all the refugees who have come to Florida, irrespective of race. A report by Dade County Manager Stierheim advocates: “Agencies of local government which conduct broad community development and protection responsibilities that are largely preventive find that they are properly blind to technical questions of residence or nationality or legal presence in the United States.” PE # 353 at 3 (emphasis in original). After summarizing a number of arguments for humane treatment of the refugees, the report concludes “[tjhese arguments all recommend a minimum standard of health and decency for all persons, as a matter of course.” Id. at 6. The burden often falls on private charities as well. Monsignor Brian Walsh, the Director of Catholic Charities of the Social Service Agency of the Miami Archdiocese, testified that Haitians-as opposed to other refugee groups-have to depend exclusively on private charity when they reach the United States because unlike other groups they are prevented from obtaining work permits. Tr. at 951.

Irony after irony plagues this case. A research instructor in the Psychiatry Department of the University of Miami School of Medicine testified that the Haitians “come here with the expectation that they should reach a land of freedom.” Tr. at 2134. What they found was an Immigration Service which sought to send them back to Haiti without any hearing by an immigration judge on their asylum claims, Sannon v. United States, 421 F.Supp. 1270 (S.D.Fla.1977), and a systematic program designed to deport them irrespective of the merits of their asylum claims. They were assured by good people in this country that Miami was not Haiti, that they did not have to fear persecution by the United States, and then their claims were denied without any meaningful consideration. They came to a land where both local officials and *452 private groups were compassionate, indeed where the President had once promised that the government would be as compassionate as its people, and then their applications for asylum from persecution were arbitrarily denied en masse by a somewhat less than compassionate INS.

In reaching its conclusions the court has listened to a wealth of in-court testimony, examined numerous depositions, and read hundreds of documents submitted by the parties. Much of the evidence is both shocking and brutal, populated by the ghosts of individual Haitians-including those who have been returned from the United States-who have been beaten, tortured and left to die in Haitian prisons. Much of the evidence is not brutal but simply callous-evidence that INS officials decided to ship all Haitians back to Haiti simply because their continued presence in the United States had become a problem. The manner in which INS treated the more than⁴,000 Haitian plaintiffs violated the Constitution, the immigration statutes, international agreements, INS regulations and INS operating procedures. It must stop.

A. Limits of Immigration Law

There is no area of law in which Congress has more unreviewable power than in immigration and naturalization matters.³ The Supreme Court has explicitly warned lower courts that they are not to imply restrictions on Congressional flexibility to respond to changing international conditions which might require changes in immigration and naturalization matters.⁴ For example, Congress, if it so chooses, may discriminate against and among aliens on grounds which would violate the Constitution if applied to American citizens.⁵ Nonetheless, the discretion of Congress is not completely unfettered. Its classifications with respect to aliens must have some rational basis.⁶ In addition, persons must be afforded fundamentally fair proceedings under the due process clause before they may be deported.⁷

By contrast, the power of INS is more circumscribed. In addition to complying with the limited application of the Constitution to aliens, INS must conform its actions to the statutes passed by Congress and the international agreements joined by the United States.⁸ Where it has been given discretion by statute or treaty, INS may not exercise that discretion arbitrarily or capriciously. 9 In addition, INS must adhere to its own regulations and procedures. 10

The history of immigration laws in the United States is a tale of accommoda *453 tion between the humanitarian goal of accepting into this country those immigrants who seek to build a new life here and a variety of reasons for restricting immigration. 11 In retrospect, one cannot be proud of all the measures taken by Congress in the past. For many years, the immigration laws explicitly discriminated against persons of various races and nationalities. Fortunately, such provisions are now gone from the immigration statutes. In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” 12 This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper. In the face of such a decision by Congress, INS has no authority to discriminate on the basis of national origin or race-except perhaps by promulgating regulations in a time of national emergency. 13

B. Asylum Rights: Substantive

Morally, persons fleeing political persecution have long had a special claim on this land of freedom. In 1952, Congress explicitly recognized this claim by granting the Attorney General the power to withhold the deportation of aliens who would face “physical persecution” if they were deported. 14 In 1965, this provision was rewritten and broadened to include “persecution on account of race, religion, or political opinion.” 15 In 1968, the United States became a party to the United National Protocol Relating to the Status of Refugees which defines refugees as persons who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” 16 The Protocol prohibits the deportation of a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 17 Moreover, it also requires that the United States apply the provisions of the Protocol “without discrimination as to race, religion or country of origin.” 18

In March of this year, Congress enacted a statute entitled the Refugee Act of 1980 19 which seeks to deal with the admission of refugees in a comprehensive fashion. Neither party has argued that the present plaintiffs come within the scope of the 1980 Act and the court declines to so hold. The court merely observes that Congress declared in the Act “that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” 20 Just as the old provisions on asylum did not discriminate on the basis of country of origin or race, neither does the new statute. 21

*454 Irrespective of the 1980 Act, the plaintiffs had a right to the Attorney General’s nonarbitrary, nondiscriminatory consideration of their individual claims for political asylum pursuant to⁸ U.S.C. Sec. 1253(h) and the United Nations Protocol.

C. Asylum Rights: Procedural

An alien in this country who seeks political asylum here may have his application considered by either of two routes. On the one hand, he may apply for asylum before the local INS District Director, who will grant or deny the application in the Director’s discretion.⁸ C.F.R. § 108.2 (1978). An alien may also raise his claim for asylum during a deportation hearing as a claim for discretionary relief under⁸ U.S.C. § 1253(h) or the United Nations Protocol. However, the application to the District Director is the alien’s primary means of obtaining asylum. It is something he can initiate. Moreover, under the regulations and operating instructions in force during the time period at issue in this case, if the application was made after a show cause order had been issued but before the hearing on that order, or even if it was made for the first time in an actual deportation hearing, the issue of asylum was to be referred to the District Director for his initial consideration. 21a

See 22 The evidence adduced at trial tended to show that the immigration judge’s decision on an asylum application never differed from the local District Director’s decision. Hence, although it is true that the alien may resurrect his asylum application before an immigration judge, he must have asylum from the District Director if he wants to avoid deportation.

The Constitution states flatly: “No person shall be ... deprived of life, liberty, or property, without due process of law.” Amend. V. This constitutional guarantee of due process of law protects an alien within this country’s borders as well as a United States citizen. The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 615, 47 L.Ed. 721 (1903). Both are persons. Cf. Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971). Nonetheless, due process is a flexible concept which mandates varying procedures and different degrees of formality in sundry contexts. See Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) quoted in Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 953, 55 L.Ed.2d 124 (1978). The Supreme Court has observed that deportation, while not a criminal penalty, can realistically deprive an individual of all that makes life worth living. See, e. g., Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922) quoted in Bridges v. Wixon, 326 U.S. 135,147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). Hence, the Constitution requires that before a person may be deported he must be afforded most of the protections provided to citizens *455 who face serious deprivations of life, liberty, or property. For instance, an alien facing deportation has the right to a fair hearing before an unprejudiced arbiter. 23 He has the right to be represented by counsel. 24 In sum, his hearing-while it need not conform to all of the punctilious requirements of a criminal trial-must conform to our society’s standards of fundamental fairness. See, e. g., Wong Yang Sung v. McGrath, 339 U.S. 33, 50-51, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950).

In considering a request for asylum, the District Director must weigh various issues which realistically involve the applicant’s life, liberty, and property in a most direct fashion. In a very graphic sense, the political asylum applicant who fears to return to his homeland because of persecution has raised the specter of truly severe deprivations of life, liberty, and property: in this case, harassment, imprisonment, beatings, torture, and death. Moreover, if granted by the District Director, the asylum application will prevent the alien from having to face the rigors of deportation proceedings.

Clearly then, just as a deportation hearing must conform to the flexible standards of due process, so too must the processing of the application for asylum. Moreover, lest due process get lost in the shuffle between District Director and immigration judge, the requirements of due process must be met in the initial proceeding before the District Director. Of course, this conclusion does not mean that proceedings before the District Director must be as formalized as the deportation hearing before an immigration judge. 25

This court need not decide all the ramifications of applying due process to asylum applications before a District Director. However, a good starting point for an examination of procedural fairness is the relevant statute and the agency’s own regula-f tions and operating procedures. Indeed, de- \ partures from the statute, and regulations, \ and the standardized operating procedures l must be studied quite closely since such ■ departures, especially if willful, systematic, j and cumulative, may amount to a breach of j the fundamental fairness which due process j guarantees. See, e. g. United States ex rel. [Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 504, 98 L.Ed. 681 (1954).

Neither⁸ U.S.C. § 1253(h) nor the United Nations Protocol specify a procedure for deciding on asylum applications. In the absence of the specification of any particular procedure, it is assumed that Congress intended that the procedure used by INS would comport with due process:

The constitutional requirement of procedural due process of law derives from the same source as Congress’ power to legislate and, where applicable, permeates every valid enactment of that body.

Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950). Where, as here, the Attorney General is authorized to promulgate regulations, issue instructions, delegate his authority, and “perform such other acts as he deems necessary for carrying out his authority” under the immigration laws,⁸ U.S.C. § 1103, clearly he or his designated subordinate has the power to specify procedures for granting asylum, generally subject only to the constraints of due process and the substantive provisions of the immigration statute.

The procedures specified by INS, the Attorney General’s delegated authority, encompass both formal regulations and INS Operating Instructions. As they pertain to this case, the regulations require the alien *456 to submit his application for asylum on Form 1-589 and later to appear in person before the immigration officer who will handle the application.⁸ C.F.R. §§ 108.1 & 108.2. 26 When the applicant appears before the immigration officer, he is to be “given an opportunity to fully present [sic] his case” and the immigration officer is to double check that “the applicant has no additional factors he may wish to have considered.” Operating Instruction [hereinafter O.I.] 108.1.

The District Director, generally operating through his subordinates, is to classify the application into one of three categories: (1) Cases clearly meriting asylum, (2) Doubtful cases, and (3) Asylum cases that do not appear to have substance or are clearly lacking in substance.⁸ C.F.R. § 108.2; O.I. 108.1. The views of the State Department on the application are to be sought in all doubtful cases. Id. If the application is denied as clearly lacking in substance, the State Department is to be notified and the alien’s departure is stayed for 30 days or until the State Department responds. Id.

Although the District Director may grant or deny the application in his discretion, the regulations and operating instructions make it clear that his discretion is to be an informed one. No administrative appeal lies from the District Director’s decision unless he denies an application in spite of a State Department recommendation to grant. Id. The State Department statement is to be made part of the record and the applicant has an opportunity to examine and rebut the State Department statement. Id. The District Director’s decision on the application is to be made in writing. Id.

As already noted, a denial by the District Director does not preclude raising an asylum claim in a later deportation hearing before an immigration judge. Id. Moreover, if the asylum claim was advanced between the issuance of a show cause order and the hearing thereon, the matter was to be referred to the District Director and the deportation hearing postponed. I.O. 108f(l). If the asylum claim was made during a deportation hearing, then the hearing was to be adjourned so that the District Director could process the asylum application. O.I. 108.1f(2). The rationale for these last two procedures is clear: the District Director should uniformly be given the first opportunity to rule on the asylum application and the applicant for asylum should not have to prejudice his other defenses to deportation in order to raise an asylum claim. Cf. 8 C.F.R. § 242.-17(d).

The procedures outlined above clearly provide a good foundation for procedural due process even if they do not necessarily exhaust the requirements of due process or are not explicitly required by the Constitution. Unfortunately there is many a slip between the cup and the lip, and proper procedures must be implemented properly before the particulars of due process are satisfied.

II. THRESHOLD LEGAL ISSUES

The threshold legal question is whether each of the sixteen causes of action is properly before the court. The defendants have asserted several reasons why various of the plaintiffs’ causes of action should be dismissed without reaching their merits. First, the defendants argue that the district court does not have jurisdiction to entertain causes of action¹, 2, and³, asserting that the court of appeals has exclusive jurisdiction over those three claims pursuant to⁸ U.S.C. § 1105a(a). Second, the defendants raise four issues which may be considered together as questions of justiciability: mootness, the timing of judicial review, the political question doctrine, and standing.

Each of the defendants’ challenges will be addressed in turn. In the course of examining each of these arguments, however, it is essential to understand and bear *457 in mind the unusual nature of this case. The plaintiffs are not trying to litigate the merits of any single decision by INS or a particular immigration judge. Rather, the gravamen of the plaintiffs’ complaint is that INS instituted a program “to achieve expedited mass deportation of Haitian nationals” (Complaint, ¶ 3) irrespective of the merits of an individual Haitian’s asylum application and without regard to the constitutional, treaty, statutory, and administrative rights of the plaintiff class. Causes of action 1-14 each allege some aspect of this program. Cause of action 15 further alleges that the entire program constituted impermissible discrimination based on national origin. Finally, cause of action 16 alleges that the cumulative effect of all of the various practices in the program deprived the class of fundamental fairness in processing their asylum claims.

A. Jurisdiction

The plaintiffs aver that this court has jurisdiction to hear their claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (mandamus jurisdiction), and⁸ U.S.C. § 1329 (jurisdiction over causes arising from the Immigration sub-chapter). The defendants do not contest this court’s general jurisdiction, 27 but they contend that causes of action 1-3 cannot be raised in the district court because of the grant of exclusive jurisdiction to review final orders of deportation vested in the court of appeals. See 8 U.S.C. § 1105a(a). 28 In this instance, then, the question of jurisdiction becomes one of statutory construction.

Prior to 1961, Congress had specified no particular procedure for the judicial review of deportation proceedings. See e. g., C. Gordon & H. Rosenfield,² Immigration Law and Procedure § 8.1 (1980). As a result, the courts devised various means of reviewing deportation proceedings, including the application of the review provisions of the Administrative Procedure Act to deportation proceedings. See, e. g., Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). In 1961, Congress added the present provision codified at 8 U.S.C. § 1105a which inter alia limited the review of final orders of deportation to the appropriate court of appeals. In doing so, Congress sought to eliminate the abuse of the prior avenues of judicial review. Primarily, Congress concluded that judicial review had been abused by aliens whose sole motives were dilatory. Exclusive review by the courts of appeals was chosen as an efficient and just means of expediting judicial review of these final deportation orders. 29

*458 The Supreme Court has construed Section 1105a in a manner which realizes the Congressional goal of efficient judicial review but does not stretch the phrase “final order of deportation” beyond its linguistic limits. 30 All of these cases have involved the review of an individual deportation proceeding. In this context, the Court opined that all determinations incident to the deportation hearing and reviewable by the Board of Immigration Appeals were committed to the court of appeals’ exclusive jurisdiction. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963). On the other hand, the Court later decided that a District Director’s denial of a stay of deportation which is not entered in the course of a deportation hearing and is not appealable within INS does not come within the exclusive jurisdiction of the court of appeals. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). In this latter case, the Court reasoned that the District Director’s denial was not encompassed by a “final order of deportation” but rather was purely discretionary relief external to deportation hearings. As such, judicial relief would be available first in the district court. Id. 392 U.S. at 210, 88 S.Ct. at 1973.

The analytical framework advanced in Foti and Cheng Fan Kwok was followed, for example, in Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 68, 89 S.Ct. 1519, 1523, 23 L.Ed.2d 101 (1969) where a District Director’s denial of a political asylum claim was properly reviewed by the district court. See also Fleurinor v. Immigration and Naturalization Service, 585 F. 2d 129, 134-36, n.6 (5th Cir. 1978) (political asylum determination by the District Director cannot be reviewed by the court of appeals, but procedural irregularities therein are reviewable in the district court). Most of the claims now before this court allege irregularities in the procedures used by the District Director in processing asylum claims, and as such they are clearly within this court’s jurisdiction. However, because causes of action 1-3 allege, at least in part, irregularities in deportation hearings themselves, the government contends they are beyond this court’s oversight. The Government’s interpretation of Section 1105a and the above Supreme Court cases, is neither required by the statutory language nor supported by Congressional intent.

Various statutes dividing judicial review responsibilities between the district court and the court of appeals have provoked a substantial amount of confusion in administrative law recently. See K. Davis Admin *459 istrative Law Treatise § 23.03-1 (1980 Supplement). Professor Davis has argued that “[t]he law on choice between court of appeals review and district court review is becoming inordinately complex, and much of the complexity stems from judicial departures from clear statutes.” Id. at 191. Apparently, even in the face of a clear statute giving the court of appeals exclusive jurisdiction, the courts of appeal would construe the statute to vest review initially in the district court if the appeals court concluded that it would otherwise have an insufficient record upon which to base its review. Id. (and cases cited therein). Compare PPG Industries, Inc. v. Harrison, 587 F. 2d 237, 244-45 (5th Cir. 1979) (review not appropriate in court of appeals because, in part, the record is inadequate for such review) rev’d 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) with United States Steel Corp. v. United States Environmental Protection Agency, 595 F. 2d 207, 212 (5th Cir. 1979) (review proper in the court of appeals because it may be based on a substantial record).

The Supreme Court’s reversal in PPG Industries halted jurisdictional construction which is unsupported by legislative intent and which flies in the face of explicit statutory language conferring jurisdiction on the court of appeals. 446 U.S. at 589-595, 100 S.Ct. at 1896-1899. In the instant case, however, district court jurisdiction over causes of action 1-3 would not be contrary to the clear wording of Section 1105a. That section confers exclusive jurisdiction on the court of appeals only to review “final orders of deportation,” as opposed to the general jurisdiction of the district courts over other causes of action arising from the immigration laws. See, e. g.,⁸ U.S.C. § 1329; 28 U.S.C. § 1331. Causes of action 1-3 do not ask this court to review final orders of deportation. Thus, a literal construction of Section 1105a would leave no doubt that this court has jurisdiction to entertain causes of action 1-3.

Causes of action 1-3 cannot be categorized as simply as the defendants propose. Certainly, cause of action¹ “relat[es] to the decision of an immigration judge during the course of a deportation hearing to grant a continuance when a political asylum claim not previously decided by the district director is made.” Memorandum in Support of Defendants’ Renewal and Supplement to Motion to Dismiss at 3. The pertinent consideration, however, is how this cause of action “relates” to the immigration judges’ decisions. The plaintiffs contend that the immigration judges consistently refused to suspend deportation hearings promptly-even though they were supposed to do so under I.N.S. Operating Instructions-as part of a discriminatory policy directed solely at Haitians. The object of this policy, as alleged in the complaint, was to expedite the mass deportation of Haitians. The evidence reflects that this “judicial” practice was adopted at the instigation of the INS Central Office. 31 Such a practice could never be effectively demonstrated in the record of any single deportation hearing, and so it would completely escape judicial review if-just because it “relates” to an immigration judge’s decision-it cannot be raised in a class action before the district court. 32 *460 Causes of action² and³ would similarly escape judicial review. 33

Congress did not intend that Section 1105a produce the anomalous result that meritorious claims of agency misconduct escape effective judicial review. Congress made it clear that Section 1105a “implements and applies Section 10 of the Administrative Procedure Act.” H.R.Rep. No. 1086, 87th Cong., 1st Sess., reprinted in [1961] U.S.Code Cong. & Ad.News pp. 2950, 2966. The House Report explicitly sets out the pertinent provision of the A.P.A., adding that Section 1105a was drafted “precisely as is contemplated” by the A.P.A.:

The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute

or, in the

absence or

inadequacy thereof,

any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction.

Id. U.S.Code Cong. & Admin.News 1961 at 2971, quoting Section 10 of the Administrative Procedure Act now codified at 5 U.S.C. § 703 (emphasis added). The conclusion is inescapable that Congress intended that “any court of competent jurisdiction” be able to hear a claim which cannot be adequately presented to the court of appeals under Section 1105a. 34 Clearly, the district court is otherwise a court of competent jurisdiction.

Congress’ broader intent of efficient judicial review of administrative action also supports jurisdiction over causes of action 1-3 in this court. In the context of a single individual’s deportation hearing, the Supreme Court has recognized that this goal of efficiency can be best realized by consolidating judicial review in the court of appeals. See, e. g., Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). However, in the context of a proper class action contesting initial actions in deportation hearings which are alleged to be part of a plan to deprive the class of rights otherwise available independent of the deportation *461 hearings, the Congressional policy of efficient judicial review can be best, and solely, realized by jurisdiction in the district court. 35 Congress conferred broad jurisdiction on the district courts to hear cases arising under the immigration subchapter.⁸ U.S.C. § 1329: see also 28 U.S.C. § 1331. Neither the language nor the intent of Section 1105a supports the conclusion that this court has been deprived of its jurisdiction to hear causes of action 1-3. 36

B. Justiciability

The defendants raise four issues of justiciability: mootness, the timing of judicial review (both exhaustion and ripeness), the political question doctrine, and standing. New areas of the law present a court with less of an understandable and coherent framework than justiciability. Although this court cannot undertake to synthesize a coherent justiciability theory from this conceptual morass, a few prefatory words are in order. Federal courts are not roving engines of justice careening about the land in search of wrongs to right. Rather, federal courts were designed to be much like all other courts: passive entities resolving only the quarrels which are properly put before them by interested parties and which are within the competence of courts in a tripartite system of constitutional government. Questions of justiciability are all related in that the various justiciability doctrines are intended to keep the courts within their proper constitutional and prudential bounds.

At the same time, one cannot lose sight of the fact that throughout our nation’s history, and increasingly in the last quarter of a century, litigants have confronted the federal courts with real and palpable cases of individual and systemic injustice for which the courts are the only realistic source of relief. 37 In the face of such litigation, the courts have-often with great re *462 luctance-measured up to their historic constitutional task of declaring what the law is and enforcing the law between the parties. Although it is almost tautological to so state, questions of justiciability do not impede a case proper for adjudication.

For six years now, the black Haitian nationals who have sought refuge in Florida have protested to the courts their treatment at the hands of the Immigration and Naturalization Service. The courts-including this court-have pursued a policy of utmost restraint. The courts have continued to believe that once they declared the law, the Immigration and Naturalization Service would follow that law. For example, Haitian litigants have repeatedly asked INS and the courts to consider the political and social conditions in Haiti when deciding and reviewing, respectively, their applications for political asylum. In general, courts-including this court-have skirted such issues or determined them adverse to the Haitians. 38 Indeed, the courts have been willing to seize on the tiniest scintilla of evidence that administrative actions were justified. 39

The allegations in the present complaint are so troubling that not to reach the merits of this case would be an exercise in judicial abdication rather than judicial restraint. Most issues of justiciability stem from the constitutional restriction of judicial power to “cases” and “controversies.” As the late Chief Justice Earl Warren observed, “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government.” Fl ast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). The defendants urge that the plaintiffs’ case is as leaky and unseaworthy as most of the decrepit boats used by the plaintiffs to arrive on these shores, and can be sunk by the submerged complexities underneath the tip of justiciability icebergs they sight. However, the justiciability dangers sighted by the defendants are no more than mirages; the waters of this litigation are as free as ice floes as are the warm Caribbean waters of the Gulf Stream.

1. Mootness

The defendants cite a single case for the proposition that the plaintiffs’ claims are moot: Sannon v. United States, Case No. 74-428-Civ-JLK (final order entered January⁷, 1980, as amended April 11, 1980). The Sannon case was decided by this court and is presently on appeal to the Fifth Circuit on the limited issue of whether the additional notice required of INS by the court was within the court’s authority. 40

See Brief for Appellants, Sannon v. United States, Case No. 80-5088 (filed May⁵, 1980). The defendants’ reliance on Sannon is misplaced.

*463 In Sannon, the three hundred Haitians in the plaintiff class were excludable aliens whose claims for political asylum had been denied by the District Director and who had been found excludable in hearings before immigration judges. The plaintiffs complained inter alia that the immigration judges had refused to consider their asylum claims. This court concluded that the plaintiffs were entitled to present their asylum claims also to the immigration judges and granted relief on that basis. Sannon v. United States, 427 F.Supp. 1270 (S.D.Fla.1977). Three weeks after the decision in Sannon, the Fifth Circuit decided Pierre v. United States, 547 F. 2d 1281 (5th Cir. 1977), which rejected claims similar to those upheld by this court. Sannon was then appealed to the Fifth Circuit. Thereafter, the Pierre plaintiffs petitioned for a writ of certiorari from the Supreme Court. At the Solicitor General’s suggestion that the Pierre petition was moot because INS intended to promulgate new regulations granting the petitioners the hearing they wanted before immigration judges, the Supreme Court granted certiorari, vacated the Fifth Circuit decision, and remanded the case for consideration of the mootness question. Pierre v. United States, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977). See also Pierre v. United States, 570 F. 2d 95 (5th Cir. 1978) (remanding to district court for consideration of mootness question). Similarly, Sannon was remanded to this court. Sannon v. United States, 566 F. 2d 104 (5th Cir. 1977) (mem.). Upon remand, this court initially held that the new regulations were improperly promulgated by INS in violation of the Administrative Procedure Act. Sannon v. United States, 460 F.Supp. 458 (S.D.Fla.1978). Thereafter, the regulations were repromulgated.

*464 8 C.F.R. §§ 108.1 & 108.2 (1978).

*463 In its final order, this court decided that the new regulations-once properly promulgated and with some added notice requirements-rendered the Sannon litigation moot. No appeal was taken from the decision on mootness.

Mootness contentions require an intensely factual inquiry. During its five year history, the Sannon litigation focused on one major issue: What consideration should be given asylum claims in exclusion hearings before immigration judges? With that issue effectively decided in the plaintiffs favor in the new regulations the court declined the plaintiffs’ invitation to rule on various matters not squarely presented by that case. In sum, the case was adjudged moot because the plaintiffs had been granted by the new regulations the primary relief they had sought from the court.

In the case now at bar, the defendants argue that the new regulations promulgated by INS similarly moot the present plaintiffs’ claims, contending that the difference between this case and Sannon “is purely a legal distinction.” Defendants’ Memorandum in Support of Defendants’ Renewal and Supplement to Motion to Dismiss at 2. However, even in an intensely factual inquiry, “purely legal” distinctions are quite important to a court of law. Moreover, there are distinctions between the two cases which are more than “purely legal.”

Under the regulations in force during the time period at issue in this lawsuit, the plaintiffs had a right to have their asylum applications considered by the District Director, whose decision was unreviewable within INS.⁸ C.F.R. §§ 108.1 & 108.2. 41 A District Director’s denial of asylum would *464 not preclude the alien from applying for asylum during the course of a later deportation hearing before^an immigration judge.⁸ C.F.R. § 108.2. As amended effective May 10, 1979, these regulations were changed to eliminate any application to the District Director unless the alien’s presence in the United States “is authorized” by INS, 42 or other exceptions not pertinent here. Under the new regulations, then, asylum applications are to be considered by the immigration judge only. The defendants contend that this new procedure is available to all members of the class. 43

*465 Unlike Sannon, which turned on the question of what an immigration judge should consider in an exclusion hearing, the essence of the complaint in this case is that the procedures before the District Director were contrived to deny the Haitians’ asylum applications despite their individual merits. Sannon was rendered moot because the new regulations granted those excludable plaintiffs the right they sought, the right to present their cases to immigration judges. In contrast, the amended regulations no longer afford a deportable alien the right to a District Director’s determination of his asylum claim prior to any litigation before the immigration judge. Because the defendants’ state that the plaintiffs can elect to have their asylum applications reprocessed under the new unified procedure before an immigration judge, the defendants argue that the plaintiffs’ claims are moot. In essence, the defendants assert that because these plaintiffs can elect to give up a right they had, a right which INS now denies new applicants for asylum, their claims of past wrong are moot. The logic of this position escapes the court.

Mootness is a constitutional doctrine which has both mandatory and discretionary applications. See generally C. Wright, A. Miller & E. Cooper, 13 Federal Practice & Procedure § 3533 at 263 (1975). In its mandatory aspect, it ensures that disputes in the federal courts-throughout their passage in those courts-remain the “live” disputes envisioned by the “cases” or “controversies” limitation on judicial power contained in Article III of the Constitution. On the other hand, its discretionary aspect often leads courts, based on considerations of judicial administration, to dismiss as moot litigation which otherwise meets the “cases” or “controversies” test. Consequently, there is no precise rule to be applied in determining whether a particular case has been rendered moot. The court is unpersuaded by the defendants’ mere reference to Sannon. On the contrary, the court finds the following four considerations persuasive.

First, the rights which the plaintiffs seek to vindicate have not been in any manner extinguished by the new regulations. The new regulations are not on their face retroactive and this court should not interpret them to deprive the plaintiffs of their vested rights. See Greene v. United States, 376 U.S. 149, 158-60, 84 S.Ct. 615, 621-22, 11 L.Ed.2d 576 (1964). The plaintiffs in this case all applied for political asylum prior to the effective date of the new regulations; and the prior regulations gave them the right to have their applications considered by the District Director before undergoing the rigors of proceedings before an immigration judge. This right vested upon the making of the application for asylum. 44 This court does not understand the defendants’ contention that the plaintiffs may elect to be reconsidered under the new procedure as an assertion that their right to fair consideration under the old procedure has somehow vanished.

Second, this case is not one in which the defendants have voluntarily ceased the allegedly illegal activity and can show that (1) the allegedly illegal activity will not recur and (2) events have eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625, 630-31, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The plaintiffs complain that the defendants adopted a systematic program designed to deport Haitians without regard to the merits of their individual asylum claims through initial proceedings before immigration judges and later actions by the District Director. The mere fact that the plaintiffs are now offered the opportunity to proceed entirely before the immigration judges does not indicate that the defendants have abandoned any plan to effect deportation of Haitians despite their assert *466 edly valid asylum claims; the plaintiffs may properly suspect that the defendants have merely shifted the focus of their plan to a new setting: the hearings before immigration judges. Moreover, even if the defendants’ conduct might somehow be deemed a voluntary discontinuance of allegedly illegal activity, they have not met the “heavy” burden of demonstrating “that there is no reasonable expectation that the wrong will be repeated.” United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). If this case were deemed moot, the defendants would be able to return to their old ways, either under the altered procedure or under still more recent regulations promulgated pursuant to the Refugee Act of 1980, Pub.Law 96-212 (March 17, 1980.) 45 Also, it would be incredible to contend that the plaintiffs are no longer suffering the effects of the defendants’ alleged misconduct. As alleged by the plaintiffs, the District Director failed to consider fairly their applications for asylum which resulted in those applications being arbitrarily denied. Had those applications not been so denied, as alleged, some number of the plaintiffs would now be enjoying political asylum in the United States rather than facing deportation hearings arid possible return to a nation where they contend they may be beaten or killed. 46 Clearly, the effects of the defendants alleged misconduct persist.

Third, while it is true that a challenge to a statute or to administrative regulations may be mooted by the enactment of a new statute or the promulgation of new regulations if the new statute or regulations satisfy all the bases for the attack on the old regulations, such is not the case here. See generally C. Wright, A. Miller & E. Cooper, supra at 276-79. Rather than challenging the regulations which were amended by the defendants, the plaintiffs here rely in part on those regulations to challenge the practices of the defendants. To hold that subsequent changes in the regulations moot this case would be one sure way to insulate from judicial review INS actions which are in derogation of its own regulations. Cf. id. at 279 (legislature should not be able to contrive methods for avoiding Supreme Court review). Any time anyone challenged such actions INS could simply amend its regulations. Moreover, as noted above, the amended regulations do not satisfy the specific challenges to agency practices which could easily be transferred to the new asylum procedures.

Fourth, courts have often examined whether any remedy they could grant would be meaningful in cases challenged as moot, and this court concludes that it could grant meaningful relief if the various alleged violations-which include constitutional violations-are proved. Although remedial measures must be carefully tailored to the past violations proved, see, e. g., Dayton *467

Board of Education v. Brinkman, 433 U.S. 406, 419-20, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 85 (1977), this court believes that Chief Justice Burger’s forceful admonition remains good law and applicable to this case:

Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. . . .

[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.¹, 15-16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). Although a rehearing of asylum claims before immigration judges rather than the District Director might be one method of remedying proven constitutional violations by the District Director, such an option might be particularly inappropriate in this case if it is proved as alleged in causes of action 1-3 that the immigration judges participated in the systematic denial of the class members’ rights.

In sum, this court can see no possible constitutional or prudential rationale for holding that this case has been rendered moot by INS’s amendment of its own regulations. This case of manifest public importance has been vigorously contested by advocates representing the opposing parties. The parties contest alleged violations of the plaintiffs’ unextinguished rights to fundamentally fair consideration of their asylum applications by the District Director. The court can think of few cases or controversies more “live” or more deserving of judicial resolution.

2. Timing of Judicial Review

In their original motion to dismiss, the defendants sought the dismissal of the entire action on the grounds that (a) the plaintiffs had failed to exhaust their administrative remedies and (b) this litigation was otherwise unripe. In their renewal and supplement to their motion to dismiss, the defendants appeared to abandon their claim that the litigation was unripe and they narrowed their exhaustion of administrative remedies claim to causes of action 1-3.

The doctrines of ripeness and exhaustion of administrative remedies, though distinct, are clearly interrelated when courts are called upon to review administrative decisions. Professor Davis has written:

When a court determines at what stage of administrative action judicial review may be sought, the court is either applying the requirement of ripeness, the broad doctrine that governs the kind of functions that courts may perform, or the relatively narrow doctrine of exhaustion, which focuses not upon the functions of courts but merely upon the completion or lack of completion of administrative action.

K. Davis,³ Administrative Law Treatise § 20.01 at 57 (1958). Since the defendants have raised both issues of ripeness and exhaustion in arguing that judicial review is inappropriate at this time, the court will address both issues, taking the more narrow question of exhaustion first.

a. Exhaustion

By not pressing their exhaustion argument with respect to causes of action 4-16, the defendants have implicitly admitted the obvious: the exhaustion contention with respect to those causes is frivolous. Causes of action 4-16 assert unlawful conduct in the District Director’s consideration of asylum applications. Under INS regulations, “no appeal shall lie” from the District Director’s decision on asylum applications. Hence, with respect to decisions of the District Director, there exist no more administrative remedies for the plaintiffs to pursue and the plaintiffs have exhausted their administrative remedies on causes of action 4-16. Moreover, this same rationale applies to cause of action 2. As alleged in cause of action², immigration judges required Haitians to present their asylum claims to the District Director within ten days. As alleged, if the applications were not filed within the ten day period, the District Di *468

rector dismissed the applications as untimely. Because it was the District Director who dismissed the application, a Haitian could obtain no review of the dismissal within INS and his administrative remedies are exhausted.

With respect to causes of action 1-3, the defendants contend that the plaintiffs have failed to appeal within INS the actions of the immigration judges in allegedly refusing to suspend deportation hearings upon the making of an asylum claim (cause of action¹), allegedly requiring the presentation of asylum applications to the District Director within ten days (cause of action²), and allegedly scheduling deportation hearings en masse (cause of action³). As an initial matter, the court concludes that these causes of action are so intimately entwined with the other fourteen causes of action as to make the application of the exhaustion requirement improvident, even if technically permissible. Cf. NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1723 n.8, 20 L.Ed.2d 706 (1968) (exhaustion requirement “is a matter within the sound discretion of the courts”); Ecology Center of Louisiana, Inc. v. Coleman, 515 F. 2d 860, 865-66 (5th Cir. 1975) (exhaustion is a flexible concept tailored to administrative statutes and circumstances).

Exhaustion of administrative remedies is generally required to avoid the premature interruption of the administrative process. 47 By letting the administrative process run its course several policies are advanced: (i) a more complete record is developed, (ii) the agency is allowed to exercise its discretion or expertise, (iii) the agency is given the chance to correct its own errors, and (iv) the agency is not weakened by easy circumvention of its procedures. See generally McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969); Ecology Center of Louisiana, Inc. v. Coleman, 515 F. 2d 860, 866 (5th Cir. 1975). Of course, these cases recognize that the exhaustion doctrine is subject to numerous exceptions. For example, a plaintiff need not exhaust administrative remedies if such remedies would be inadequate to resolve his complaint. See, e. g., NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1723 n.8, 20 L.Ed.2d 706 (1968). See generally K. Davis,³ Administrative Law Treatise § 20.-07 (1958). This court has already concluded that traditional judicial review in the court of appeals would be inadequate to detect the violations of law alleged in causes of action 1-3. This court similarly concludes that the limits of internal agency review would be inadequate to resolve a class-wide complaint such as alleged in causes of action 1-3.

The Supreme Court has recognized a second exception closely analogous to the inadequate administrative remedy exception. An individual challenging the Social Security Act’s administrative procedures as violative of constitutional due process need not present his constitutional challenge to the administrative agency or exhaust his administrative appeals to the Secretary thereon. See Mathews v. Eldridge, 424 U.S. 319, 328-30, 96 S.Ct. 893, 899-900, 47 L.Ed.2d 18 (1976). The Court noted:

It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context. The Secretary would not be required even to consider such a challenge.

Id. 424 U.S. at 330, 96 S.Ct. at 900. This rationale applies to the case at bar as well. Here, although the complaint is ambiguous, the evidence reflects that individual class members sought to have their deportation hearings suspended (cause of action¹), pro *469 tested the ten day limitation on presentation of asylum applications to the District Director (cause of action²), and protested the mass scheduling of hearings and interviews (cause of action³). Their objections received short shrift. The plaintiffs allege that they were treated thus as part of a single unconstitutional plan and a systematic practice of accelerating their deportation proceedings in such a manner as to have them deported regardless of the merits of their individual asylum applications. Even if the internal appeal procedures were adequate to consider such a claim, the court believes that it is unrealistic to expect that such a challenge would receive serious consideration by INS. Indeed, the Board of Immigration Appeals refuses to hear constitutional challenges or challenges to INS regulations. See C. Gordon & H. Rosenfield,¹ Immigration Law and Procedure § 1.10e at 1-77 (1980). See also Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959).

For these reasons, causes of action 1-3, as well as causes of action 4-16, come within clear exceptions to the doctrine of exhaustion of administrative remedies. In addition, even if the exhaustion doctrine might otherwise be applicable, the balancing approach outlined by the Fifth Circuit in Ecology Center of Louisiana, Inc. v. Coleman, 515 F. 2d 860, 865-66 (1975) would make a dismissal on that basis unwise.

b. Ripeness

In their renewed motion to dismiss, the defendants did not renew their earlier contention that the issues in this case were not “ripe” for adjudication. Again, the implicit abandonment of this contention arises from good cause. The claim that this litigation is not ripe for adjudication is patently frivolous.

The Supreme Court has outlined a two step process for determining whether a particular case is ripe for adjudication: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). However, the Court did not intend that every federal court had to apply this two step procedure in every case; before a court is obligated to explore “the intricacies of the ripeness doctrine,” id. at 148, 87 S.Ct. at 1515, the party suggesting unripeness ought to be able to articulate why the case may be unripe.

To test whether the party suggesting unripeness has articulated a proper reason to arouse judicial concern that the litigation may be unripe, a court need look no further than the late Justice Harlan’s summary of the ripeness doctrine:

[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Id., at 148-49, 87 S.Ct. at 1515.

As alleged by the plaintiffs, there is nothing unripe about this case. The procedures leading to the decisions of the District Director denying asylum to the members of the plaintiff class are final decisions from which no appeal lies within INS. Judicial review is obtainable only in the district court. 48 Hence, this case does not involve “abstract disagreements over administrative policies” but real life complaints about past agency actions. The administrative policy challenged has not remained unformalized; rather this case involves an alleged agency policy of depriva *470 tion of the rights of aliens allegedly put into practice. Moreover, the plaintiffs allege that they have felt the effects in a concrete way: they complain that they have been rushed through processing before the District Director at a rate and in a manner which prevented any reasonable consideration of their asylum claims. They charge that the resultant denial of their asylum applications now subjects them to deportation proceedings and likely deportation. In short, this is a concrete controversy about past agency conduct which the plaintiffs challenge as unconstitutional.

Ripeness doctrine has evolved into a “stable and satisfactory” body of law. See generally K. Davis, Administrative Law Treatise § 21.00 (1980 Supplement). Generally, it is applied when some party wants to challenge prospective administrative action, and the doctrine assists courts in determining which such challenges to prospective conduct should be entertained. Ripeness doctrine has no application to cases contesting past administrative action against the very individuals who challenge that action.

3. Political Question Doctrine

The defendant Secretary of State has moved that he be dismissed from this litigation and, implicitly, that cause of action 11 be dismissed as well. In support of this motion, the Secretary urges that the performance of his duties as challenged in cause of action 11 fall within the scope of the political question doctrine and thus are immune from judicial review. In addition, all defendants in this case have urged the court to refrain from making any findings of fact on conditions in Haiti. Although the defendants have made no formal motion to this effect, their counsel has repeatedly argued that to make such findings would be beyond the bounds of the judicial role. To the extent that this latter argument rests on one particular doctrine, it would appear to rely upon the political question doctrine.

Basically, the political question doctrine holds that some questions by their very nature are beyond the competence of the courts to decide because they have been committed to Congress and the President, the “political” branches of our government. As such, the political question doctrine encompasses much more than questions about politics. Clearly the conduct of foreign affairs has been committed to the President and to Congress. 49 As was stated over sixty years ago:

The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative-the “politicaP’-Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.

Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726 (1918). This court could no more order the President to sign a treaty or the Secretary of State to negotiate an international agreement than the President could direct the court to decide an issue in his favor. See United States v. Nixon, 418 U.S. 683, 704-05, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974).

Immigration and naturalization matters implicate the conduct of foreign relations and thus pose the subtle risk that a decision on such questions might intrude on the political domain of the President and the Congress. Cf. Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976) (considerations underlying the political question doctrine also dictate a narrow standard of review of congressional and presidential decisions in im *471 migration and naturalization matters). However, all review by the courts is not improper. For example, although the federal government may discriminate against aliens and amongst aliens in various contexts, id. at 80-84, 96 S.Ct. at 1891-93, to be constitutional such discrimination must be approved by the proper executive or legislative body. See Hampton v. Mow Sun Wong, 426 U.S. 88, 103-05, 96 S.Ct. 1895, 1905-06, 48 L.Ed.2d 495 (1976). Just as clearly, immigration officials must comply with their own regulations, the various statutes enacted by Congress, the treaties adopted by the President and the Senate, and the limited constitutional protections afforded aliens in this country. 50 To ensure that individuals are not injured by unlawful action in the immigration and naturalization context, courts rarely apply the political question doctrine when such challenges are brought. As one treatise notes:

Finally, the pervasive influence of the political question doctrine in fields touching on foreign affairs has not led courts to surrender their power to protect individuals against government action. To the contrary, individual rights are protected carefully, although within a framework that takes account of the broad substantive powers of the other branches.

Harisiades v. Shaughnessy

[342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952)] provides a much-invoked illustration. Ultimately, the Court upheld the challenged deportation order, and it spoke tenderly of the threads weaving policy toward aliens into the pattern of political judgments dealing with foreign affairs. But it decided on the merits challenges based on due process, the First Amendment, and the ex post facto clause. Respect for the political branches affects, but does not preclude, decision on the merits. '

C. Wright, A. Miller & E. Cooper, 13 Federal Practice and Procedure § 3534 at 314 (1975) (footnotes omitted).

Cause of action 11 sweeps broadly. As read by the defendant Secretary of State, it asserts that the Secretary improperly let foreign policy considerations influence the State Department review of political asylum applications when referred by INS. The defendants “strenuously oppose any efforts to subject the State Department’s role to judicial review. That is too much. The actions of the State Department bear too directly on foreign affairs and too indirectly on the adjudication of INS to permit judicial review.” Memorandum in Support of Defendants’ Motion to Dismiss Cyrus Vance at 2-3. This court agrees with the defendants that it should not be in the business of instructing the Secretary of State on how to conduct foreign affairs. However, cause of action 14 can be read much more narrowly. To the'' extent that cause of action 11 claims that \ the State Department has violated the pro- j cedures, regulations, and laws to which the I Secretary concedes the Department isjj bound in participating in political asylum/ ,: decisions, it survives a political question / challenge. Cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (Attorney General will be bound to delegation of power extant in his departments’ regulations); United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3100-01, 41 L.Ed.2d 1039 (1974) (same).

Because the defendants only argued orally that the court should not make findings of fact on the conditions in Haiti, the court does not have the benefit of any detailed analysis of the government’s argument. Presumably, it too rests on the contention¹ that to do so would violate the political ¡question doctrine by usurping the function of either of the coordinate branches of *472 government. The issue, the court concedes, is one not free from difficulty.

The litigants concede that the general political and social conditions in Haiti should be considered by the District Director when he evaluates an asylum application made by a Haitian refugee. 51 In this case, the plaintiffs allege that the District Director and his subordinates arbitrarily and capriciously denied virtually all of the asylum claims of thousands of Haitians because of the cumulative effects of an alleged INS accelerated deportation program and because the District Director’s subordinates were allegedly unschooled or erroneously schooled on conditions in Haiti. The plaintiffs charge that, as a result, unequivocally meritorious asylum applications were summarily dismissed as completely lacking in substance. To ascertain whether the alleged INS deportation program caused the District Director to deny arbitrarily and capriciously Haitian asylum claims, one must examine the alleged stark results of that program against the evidence presented in the District Director’s proceedings. However, to understand the evidence before the District Director, one must have a grasp of the general conditions in Haiti.

The defendants contend that this background inquiry is barred. They nonetheless concede that this court is supposed to review the decisions of the District Director on asylum applications. 52 With all due respect to the defendants, the court does not comprehend how it is to review the District Director’s decisions without some understanding of the conditions in Haiti. The government appears to reply that the court may only consider the evidence the government presents on conditions in Haiti, i. e. the State Department report.

A hypothetical example exposes the untenable nature of the government’s position. Let us suppose that there exists a nation X whose leaders have decided to exterminate all members of one religion. Some members of the religion manage to flee such genocide and make their way to the United States. Relying in part on information from the State Department, the District Director decides that no persecution exists in X and rapidly denies all asylum applications. These denials are appealed to the district court. The refugees from X argue to the court that they can prove that deportation to X means certain death despite the assurances of the government to the contrary. The government argues that the court cannot consider and evaluate such evidence because to do so is a political question. This court doubts that the hypothetical court would have to assist in possible genocide by denying the refugees their offer of proof.

The political question doctrine is founded on the judiciary’s refusal to interfere with activities committed wholly to the other branches of government. By definition, the court cannot offend the political branches of government when they have provided for judicial review of the arguably “political” administrative decisions. 53 The presenta *473 tion of evidence on conditions in Haiti flows from the command of both statute and treaty. The United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, to which the United States is a party, incorporates the United Nations Convention Relating to the Status of Refugees. The Convention prohibits the deportation of “a refugee ... to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group of political opinion.” Article 33. Refugees are defined inter alia as having a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Article 1. Similarly,⁸ U.S.C. § 1253(h) authorizes the Attorney General to withhold the deportation of any alien “to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion.” Both the protocol and the statute are implemented, in part, in⁸ C.F.R. §§ 108.-1-.2 (1978) which prescribes the procedure before the District Director. Both the protocol and the statute on their face require an examination of the conditions in the country from which the applicant fled and to which his deportation is sought. The District Director’s decision is reviewable solely in the district court. 54 Judicial review presumes some limited examination by the district court of the evidence on which the District Director based his decision. 55 Examining that evidence and opposing evidence to ensure that the District Director’s decision was neither arbitrary nor capricious and that the procedures were fundamentally fair is the duty of the district court. 56 Since that duty rests upon a solid statutory and treaty foundation, it is outside the political question doctrine. 57

In short, it cannot offend the coordinate branches of government for the judiciary to review administrative decisions in a manner contemplated by the statutory and treaty provisions adopted by the legislature and the executive. One cannot be said to have usurped that which one has been told to do.

4. Standing

The defendants move to dismiss the Haitian Refugee Center (HRC) as a plaintiff on the ground that HRC lacks the requisite standing to assert causes of action 13 and 14. Although questions of standing produce some of the most esoteric issues in the federal courts today, no such puzzling problems are posed by the present motion.

The court need not reach the defendants’ argument with respect to cause of action 14. This cause of action alleges that the defendants engaged in the practice of intimidating Haitians who sought to exercise their Fifth Amendment right to remain silent, including but not limited to the incarceration of Haitians who sought to exercise that right. The defendants reason that named plaintiffs Dormeus and Sennecharles are barred by res judicata from presenting this cause of action. In turn, the defendants contend that HRC has no standing to *474 litigate this cause of action on behalf of unnamed class members and therefore the cause of action should be dismissed. This court has already ruled from the bench that Dormeus and Sennecharles are not barred from litigating cause of action 14 in their own right and on behalf of the class. 58 Thus, cause of action 14 should not be dismissed irrespective of HRC’s possible standing to assert this cause on behalf of unnamed class members.

Cause of action 13 alleges that the defendants have declined to inform indigent Haitians of the availability of free legal services and have prevented HRC from so informing Haitians in the INS waiting room. The plaintiffs contend that this practice violates HRC’s free speech and its members’ associational rights. The defendants’ argument that HRC lacks standing to litigate an arguable violation of its free speech is frivolous.

HRC is an unincorporated association of more than 1200 Haitians who seek to assist themselves and other indigent Haitians with the problems faced by Haitians in this country. At this time, the primary problems faced by Haitians revolve around their uncertain immigration status and therefore the work of HRC focuses on the representation of members and prospective members before INS. HRC is supported by the National Council of Churches and donations from private persons. It also collects a three dollar membership fee from those of its members who can pay such a fee. Most cannot. For several years HRC had had an application pending before INS for official recognition as a non-profit entity endeavoring to represent Haitian indigents in immigration matters.

Corporations enjoy independent first amendment rights. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). This court concludes that unincorporated associations similarly enjoy such first amendment rights. Clearly, HRC has the standing to assert its own free speech rights in federal court. Of course, whether HRC has proved a violation of those rights is another matter. In addition, given the fear Haitians have of being deported to Haiti where they allege they will be persecuted for having sought asylum in the United States, HRC has standing to assert the associational rights of its members. See NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

III. FINDINGS OF FACT: CONDITIONS IN HAITI

Each of the plaintiffs in this case has sought asylum, and none have received it. They have been told they have no “well founded fear of persecution” on return. Yet the evidence is uncontradicted that those among them whom the Haitian government classifies as political opponents face grave dangers.

Serge Donetien ... had fled the country by boat, and he was deported to his country of origin; that is to say Haiti.

He was coming back from the torture chambers of Casernes Dessalines, covered with wounds.

The accusation that was pending against him was traitor because he asked for asylum abroad.

*475

The word camoquin is used by the Ton Tons Macoutes, to designate all of those against which they can find to abuse, according to the order of the National Palace.

The man stayed at the prison, which with his wounds, which progressively became infected, he died of the consequence of his torture chamber by the absence of medical care and by the common treatment inflicted upon all prisoners incarcerated at Fort Dimanche.

Marc Romulus, Tr. at 83-84.

59

No asylum claim can be examined without an understanding of the conditions in the applicant’s homeland. Similarly, the uniform rejection of the claims of the present⁵,000 member class cannot be reviewed, regardless how lenient the standard of review, without inquiring into the conditions in Haiti. The evidence on that topic has been stark, brutal, and bloody.

The central question can be rather specifically drawn: How would these plaintiffs be treated if returned to Haiti? But that question cannot be fully answered without a more searching inquiry. The treatment of returnees in Haiti is part of a systematic and pervasive oppression of political opposition which uses prisons as its torture chambers and “Tonton Macoutes” as its enforcers. The extent of that political oppression must be established in order to review the INS’ uniform conclusion that the plaintiffs are economic refugees.

Haiti has been accurately described as “the most oppressive regime in the hemisphere.” Dx 25 at 10 (quoting Jerry De-Santillana, State Department Country Officer for Haiti); accord Dx 74 at Tab E (International Commission of Jurists, The Review³, 4 (Dec. 1977)) (“the most ruthless and oppressive regime in the world”).

(My husband) was working at Customs in Port-au-Prince, ... He kept telling me that they were talking to him about politics, that he should join the Ton Tons Macoutes....

In ’75 at midnight he left work.. .. Night had come and it was time to go to bed. They came and got him, the Ton Tons Macoutes came and took him away. ...

... They left with him. They left with him. They took him on Wednesday night. Thursday at 1 o’clock I went to Fort Dimanche. I went to the police station.. ..

They told me they knew of no such person.

I knew that if he was not released, he would be killed. So I didn’t go anymore. I never saw him....

My son (was) in school. He was finish-^ ing up.

He was complaining while he was in school. He képt complaining that if his father was still alive, his mother would not suffer so much and go through such misery.... He was complaining that his father was there, and that the Ton Tons Macoutes took his father away.

They took him. His schoolmates came and told me that they had picked him up at school.

I started screaming, saying that the child’s father had died. They took my child away from me. I have no more hope.

The next day three Macoutes came and arrested me. They started knocking on the door.... They didn’t allow me to speak. They took me and stuck me in a dungeon.

*476 ... They took me before the Chief of the Ton Tons Macoutes.... When I got there, he asked me what was wrong with me, what was my problem that I was screaming at the top of my lungs like that.... He said okay, and then he would send me home if I would shut my mouth and never wanted to hear anything out of me. ... Well, if I did not shut my mouth, I would have gone the same way my child went.

I could not go selling anymore because I was scared. I did not have a husband or child. I was scared. I stayed there and spent a month.

After a month, I saw I could no longer live.

Augusta Germain, Tr. at 1219-27.

The story of present-day Haiti is the story of Francois Duvalier and his son Jean-Claude. Francois became President of Haiti in 1957, and was succeeded by his son, who rules to this day, in 1971. Of Francois Duvalier, it has been said: “This rather short, mild, soft-voiced physician, harmless and even unattractive in appearance, vague in personality, bears within himself a genius for tyranny that has astounded the world.” Px 339 at 304 (Crassweller, Darkness in Haiti, Foreign Affairs 315, 317 (Jan. 1979)). Amnesty International recently concluded that “the apparatus of repression established by Francois Duvalier remains in place under Jean-Claude Duvalier.” Px 339 at 277. The dimensions of this tyranny, and its impact on the plaintiffs, were explored at trial.

I have problems.... when Duvalier and Desire were first trying to take power, my father voted for Desire and after my father voted for Desire-my father voted in 1956. After voting, in 1964 . . . they sent a truck full of Macoutes to my father’s home.

At that time, I was there, my mother was there, and they told my father, “Let’s go.” At that time, my father got up. They took my father and put him in a truck and they took off with my father. My mother was crying....

In 1965, she became gravely ill. She returned to the hospital. When she got to the hospital, they did not give her anything. They did not give her any tablets until she died.

When she died, my mother’s sister was crying. She went to the hospital and there a nurse told her-she told my mother’s sister there was no need for her to cry because Port-au-Prince had written to the doctor and told them not to take care of my mother. After that, my mother was buried. . ..

Two months after my mother died in ’65, there was a Mother’s Day party at the Baptist School where I was attending. I went to the party.

When I got there, all of the children were giving gifts to their mother. They were giving gifts to their father. I had no mother, no father. The children started bothering me. They asked where my mother was. They asked me where my father was. Because of that when they were saying these things to me, I became angry and I said to them: “Okay. Next month I am going to take my revolver. I am going to go to Port-au-Prince to shoot Duvalier, because of my mother and father.”

After three days, they came to my aunt’s house, three Macoutes. They came to pick me up. When they came to pick me up, I was not there....

And my aunt cried. She told me that I had to leave the house. At that time I left. . ..

Merilien Mezius, Tr. at 1174-78.

A. Haitian Refugees: Treatment on Return.

1. A Pattern of Persecution.

Hundreds of thousands of Haitians have fled their country during the twenty-three years of the Duvalier regime. This flow of *477 humanity has led to many places, including the United States and, more importantly, South Florida. For a variety of reasons, some of those Haitians have been returned to their country: some have returned voluntarily; many have been deported. This case involves the potential deportation of several thousand more. The flow of humanity thus runs full circle, from Haiti to the United States, and back. And whatever conditions those Haitians experience on return are ultimately conditions to which they are exposed by INS.

Substantial evidence was presented at trial concerning treatment of returnees in Haiti. A largely uncontradicted pattern emerged. Upon return to Haiti, persons whom the Haitian government views as political opponents will be mistreated. Persons who have fled Haiti and sought asylum elsewhere are seen as opponents of the Duvalier regime. They are taken to Casernes Dessalines for questioning. Many are further imprisoned and persecuted. Of those allowed to return home, many more are later imprisoned or persecuted.

One piece of evidence stands in stark contrast to this pattern. The State Department sent a Study Team to Haiti to interview returnees in 1979. The team concluded there was no pattern of abuse. This Court, however, has concluded that the Study Team report is unworthy of belief. It is the subject of a separate section below.

Daniel Voltaire was a member of the Presidential Guard until he fled Haiti in 1979. He was stationed at the Presidential Palace in Port-au-Prince. To him, persons returned from abroad were described by the use of the Creole word “Camoquin.” That word, to Duvalier and his followers, describes a traitor, spy, or invader. 60 Nonetheless, those who oppose Duvalier consider the term a badge of honor, “[i]t means you are against the injustice of the country.” Tr. at 1948.

... They said that they have been deported from the United States, it’s not true, they came over to spy. They received money from the traitors in Miami.

. . . everybody that comes from abroad is a Camoquin.

Daniel Voltaire, Tr. at 1924, 1969.

Voltaire stated that it was his duty to spy on everyone talking two-by-two, and that if he was “even suspicious” of a returnee, he should report it. Tr. at 1970. He stated that it was in his interest to denounce someone from the United States, that he would be rewarded for doing so. Tr. at 1968-69.

Similarly, a former member of the Ton-ton Macoutes said that everyone entering Haiti illegally was to be arrested and sent to Fort Dimanche. 61 Tr. at 414. Moreover, he stated that those who had claimed asylum while abroad were treated worse than other returnees. They were guilty of insulting the Duvalier family. Tr. at 420-21.

The policy of treating returnees as traitors did not originate with these two men. It came from a higher source, and was communicated to many. The Tonton Macoutes received orders from their local commanders, communicated through the echelons from the President, to arrest everyone from foreign countries. This order came secretly, while the Government simultaneously announced over the radio that Haitians abroad were free to return. Tr. at 414. The Presidential Guard received their orders in groups as large as 500, gathered in the palace courtyard to hear speeches by General Jacques Garcia, their Commander. See Tr. at 1920, 1942.

When General Jacques holds his conference, he says that everyone returned from the United States, they were not returned but came to prepare the grounds-they have money that they received from the camoquin in the United *478

States to come and spy in the country, and the reason is that these people themselves that are the heads of the camoquin abroad, they have come to invade, and it is the duty of those returned to spy. Tr. at 1969.

The existence of orders such as these was corroborated by a witness who worked from 1961 to 1975 as an archivist at the Greater General Headquarters of all of Haiti’s armed forces. Tr. at 455-56. One of the documents which came across his desk for storage in 1974 was an order written by Luc Desir, Chief of the Secret Police, to General Jean Baptiste Hilair. Tr. at 458. The order stated that persons returning to the country after an illegal exit were to be arrested, sent to Casernes Dessalines for interrogation, and then to Fort Dimanche. Tr. at 460.

Both Voltaire and the former Macoute observed, even participated in, the execution of these orders. The Macoute personally arrested a returnee by the name of Sylvain Martin. Tr. at 417. Martin was arrested in October of 1978 because the witness had heard a “rumor” that he was a returnee. Id. After he was imprisoned and beaten at the Macoutes barracks, Martin was transferred to a larger prison in Cayes, and then to Fort Dimanche. Tr. at 418. He was never taken before a judge or given an attorney. Tr. at 423-24..

The witness registered those brought into the Macoutes barracks, and testified that he received two or three returnees per month. Tr. at 421. 62 Aside from Martin, the witness remembered the name of two other returnees who were arrested: Herman Landiche and LeShay Belford. Dx 58 at 65. Belford was one of several persons who attempted to leave the country in the same boat as Martin; they were all arrested at the same time. Id. at 61-64. Landiche was arrested upon his return to Cayes even though he had already been imprisoned at Fort Dimanche. Tr. at 422.

Although Voltaire did not participate in any arrests, he witnessed several events which demonstrate that detaining returnees is a widespread practice.

I have a friend that is working on the wharf. I went to see him to discuss something personal with him. He told me that he could not speak to me that day because he was expecting a boat to come in, and that I should come to his home later. I saw a bunch of S.D. in front of a boat with a whole lot of people handcuffed, tied with rope and handcuffed, and I asked the S.D. what the matter was with the people. He said, man, these are people that are making them talk badly about the President in all countries.

During that time I was interested and I went to talk to one of them that was tied up with a rope. I asked him where do you come from, and he said, “This boat was in distress, we had almost arrived to Miami and the boat was going to Portau-Prince, and our food was finished, and they took us and put us here. Right now, this rope I am tied with is almost cutting into my hands.” He asked me if he could give me his address to go tell his family that he had not arrived and that he was arrested in Haiti. I said no, as I left, I could not do him that favor. I went home. As soon as I left home at 2 o’clock, I went to answer roll call. As I was passing by in the room of the musicians at Cassernes Dessalines, where they hold rehearsals, I saw that very same man point his finger at me. He pointed his hand at me and told me that what are they going to do with him?

I said, man, I don’t know, and I left. Tr. at 1973-74.

Voltaire’s observations are essentially uncontroverted. The State Department Study Team concluded that returnees are detained and questioned for some period of time upon arrival, often at the Casernes Dessa *479 lines. Dx 20 at 9-10. The interpretations of those actions differ, however. While the State Department concluded that the detention constituted only minor information gathering by Immigration officers, Voltaire saw it as apprehension of the Camoquin.

I myself have lived the fact that the big trucks used to come back from the airport.

63

(W)hen I was at the palace, sometimes on my way home I would stop at the Cassernes and sometimes I would see four or five trucks filled with people in the courtyard.

These people would come out of the trucks and sometimes they would have a chance to come with a radio. Some would come with other things.

This is one of the reasons why I took a chance, because I was curious as to what these people were doing in the Cassernes.

64

I took a chance and spoke to one at the Cassernes and I asked them, “Where are you coming from?” and they told me that they came from Nassau, “And they started beating me up ever since.” I glanced and I saw that they were in handcuffs. And when I saw that they were in handcuffs, the one that I spoke to, he told me that the handcuffs were hurting his hands.

As a soldier, you’re not allowed to speak to (Camoquin), and these people are (Camoquin). I wasn’t supposed to continue the conversation with them.

If I had been seen, I would have been judged in front of a court-martial.

65

The evidence presented at trial demonstrated that a substantial number of returnees suffered abuse following their initial detention. Two witnesses-Solives Romet and Merilien Mezius-fled Haiti for what they believed were political reasons. Both were living in the Bahamas for better than ten years before seeking to return to Haiti, and both returned voluntarily to aid ailing relatives. Tr. at 1120,1179. Although both received permission to return to Haiti and assurances that they would not be mistreated, Haitian officials were waiting when they arrived. Their stories are identical in most every detail, and stated most succinctly by Merilien Mezius.

As soon as I arrived and got off the plane, Immigration in Haiti took my passport. They called Mezius. I said present. They told me, sit down here.

After a few minutes, they called Cassernes Dessalines. When I looked around, the police car had arrived there. They took $1,700 from my wallet. They took my radio system, they took my suitcase, they took my clothes.

They went with me to Cassernes Dessalines.

It was when I arrived at Cassernes Dessalines they told me that my father was into politics, that they didn’t believe that I could leave and come back to this country one more time, that God had sent me to them.

When they told me that, I didn’t say a word. I just stayed there mute.

After a few minutes, they removed me from Cassernes Dessalines, they took me to Fort Dimanche.

When I arrived at Fort Dimanche, they started beating on me twice a day. Merilien Mezius, Tr. at 1180-82; accord Tr. at 1125-1180.

The ultimate issue here is what percentage of returnees receive the type of treatment experienced by Mezius. The defendants do not dispute that some returnees may encounter some form of governmental action; but they conclude that only a very few persons may face trials. This conclusion is founded on two broad categories of evidence: interviews conducted by the Team with returnees in Haiti; discussions with Haitian government officials. The interviews will be the subject of extended discussion below.

*480 Officials of the Haitian government informed the Team that persons who had been actively involved in political resistance prior to leaving Haiti might be subject to prosecution before a security tribunal upon return, and that claims of asylum made abroad by those persons might be considered defamation of the Haitian Nation. Dx 20 at 12. In reaching the conclusion that this statement demonstrated a risk of abuse for only “a very small number” of returnees, the Team relied on two further representations. First, the Team noted that no cases had been brought or were pending before the security tribunal. Second, the Team accepted the notion that the average refugee “[b]y virtue of lack of education ... is viewed as politically unaware and therefore excluded from actual or potential participation in anti-government political activities.” Id. at 12. The problem with these assertions, and therefore with the Team’s conclusions, should be apparent.

The absence of trials of returnees from the security tribunal does not mean that no returnees have been imprisoned. The evidence at trial clearly showed that the Haitian legal system lacks any form of protections. 66 The logical conclusion from the absence of trials is that the returnees are being sent to prison following their initial questioning without trial. That is precisely the treatment given to Solives Romet, Merilien Mezius and many others. For example, one witness testified that during his two years at the National Penitentiary returnees sometimes “came from the Casernes by a group of 20,15, and sometimes 30 in a day.” Tr. at 472.

The Team’s conclusion on what constitutes “political resistance” in Haiti is even more troubling. To the Team, only the intellectuals and the leaders of political parties would be so classified. The fallacy of this presumption is abundantly clear. The uncontradicted evidence at trial, evidence which the State Department has often recognized, demonstrates that the “political opposition" is quite broadly defined. Moreover, the Team’s conclusion fails to consider the possibility that the claim of asylum itself may cause one to be classified among the political opposition. The Haitian Government conceded that an asylum claim may be regarded as defamation of the nation. The evidence is clear that returnees are regarded as traitors, and that asylum claims are regarded as an insult to the Duvalier government. In a country where talking bad about the government is a crime, those who have fled the country are considered guilty of making the rest of the world talk bad about the President. In this context the statements made by the Haitian government lead logically to a conclusion opposite from that reached by the Study Team-returnees who have claimed asylum encounter a substantial risk of abuse.

Nearly every person who testified regarding Haitian jails recalled observing returnees who had been incarcerated. Aside from telling the story of Serge Donetien, Marc Romulus testified regarding the population of Fort Dimanche during his stay there from 1974 to 1977. He stated that approximately 40 percent of the prisoners were there solely because they had requested asylum abroad, and slightly more than one-third of that group, or 14 percent of the total population, had been returned from the United States. Tr. at 89. Daniel Voltaire testified that during a disciplinary stay at the National Penitentiary, he spoke with about 20 persons who had been returned from the Bahamas. Tr. at 1947, 1953. Patrick Lemoine recalled the names of four fellow prisoners from his stay at Fort Dimanche whose only offense had been leaving Haiti. One of those men died while in prison. Tr. at 503-08. Paul DeJean brought the Court affidavits from an individual who, during 1979, was incarcerated at Fort Dimanche with two persons returned from Miami. Finally, Jocelyn Marcelus recounted the following story of a returnee brought to his cell in early 1978.

*481

Q While you were in Fort Dimanche, did you meet anyone who said they had been returned from the United States?

A Yes.... Franklin Jocelyn.

Q Could you describe his condition when he arrived in your cell?

A The man was normal. He was in pretty good physical condition.

Prison finished with the men completely, completely.

Q When he arrived at your cell, did he appear to have been beaten?

A His whole body was covered with blood and he was totally disfigured in his face. His eyes could not be seen at all. His ears were swollen and his neck was swollen.

When he thought he was really going to die is when he got diarrhea and kept losing consciousness and with the things he was breathing into his brain.

He said while he was returned from Miami, accompanied by thirty-four people, he was the thirty-fifth. The other people, he did not know where they put them, but he, himself, this is where they put him.

He said that when he arrived, they blindfolded him and handcuffed him.

For myself, I don’t know if he is alive or dead. But in the physical condition that I left him in, even if those criminals don’t shoot'him, he will die of disease, regardless.

Tr. at 1281-88.

Although some returnees are released after their initial questioning, that does not mean they have absolute freedom. For example, Sebastian Francois testified that when he arrived in Haiti after deportation from the United States he was taken into custody, questioned for half a day, and released. Tr. at 1888. Significantly, however, that was not the end of Francois’ troubles with the Haitian authorities. He further testified to continuing suspicion: “those guys in the Tonton Macoutes .. . kept questioning me and talking to me.” Id. This testimony corresponds with Daniel Voltaire’s explanation of what happens following the denouncement of a returnee:

For example, people come from the United States and sometimes they don’t arrest you right away. But five or six days later, nobody sees you. Your family never sees you.

Tr. at 1970.

Constant Louis, whose encounter with the Macoutes is quoted at length below, apparently experienced the consequences of such a denouncement several days after his return to Haiti. Tr. at 1196-97. 67

The pattern of harassment and abuse described in this section has been found by every group which has investigated the treatment of returnees, with the notable exception of the State Department. Michael Posner, Executive Director of the Lawyers Committee for International Human Rights, testified regarding a report his Committee is preparing for publication. Preparation of the report has involved interviews with eighty Haitians presently living outside of their country. On the basis of that research, he has concluded that “it is quite possible” that those who have claimed asylum will be considered to have defamed the Haitian Nation. Tr. at 1043. He further stated that “a significant percentage of [returnees who have claimed asylum] may be subject to the system of arbitrary arrests, prolonged detention [and] mistreatment.” Tr. at 1042. He stated that asylum applicants would be viewed with considerable suspicion and, most troubling to him, confronted with a system of justice which offered them no protection. Id. at 1042, 1043-44.

*482 Amnesty International (AI), a group which State Department witnesses agreed was “quite reliable,” Tr. at 848, has consistently criticized human rights practices in Haiti. See Px 334 at 273-81. Most notably, AI published two position papers in the fall of 1978 after the beginning of the speed-up of Haitian deportations in South Florida. In the first report, AI stated that, in view of conditions in Haiti, the United States should “not deport any of these persons to Haiti without fully assuring itself that they will not face imprisonment or persecution on their return.” Id. at 275A. In December of 1978, AI issued its observations specifically on the treatment of returnees. Although it did not find that returnees were “systematically” abused, it did find cause for great concern.

Repeated assurances by the Government of Haiti that no retaliation will be taken are not persuasive in light of the evidence which (AI) has obtained, and we are concerned that many Haitian returnees and their relatives may be liable to arrest, detention, and persecution in Haiti.

IcL at 277.

Against this wealth of evidence, only the statements of the Haitian government offer solace to returnees. But those statements clearly can be given little weight. Two of the witnesses at trial returned to Haiti only after receiving permission to enter the country, and personal assurances that they would not be harmed. Both were met with brutality. Past statements by the Haitian Government have not been carried out.

This court cannot summarily conclude that each and every returnee will be imprisoned and abused. The evidence presents a pattern one step removed from that. Returnees, particularly those who have claimed asylum abroad, will be greeted with great suspicion upon their arrival. The political climate in Haiti is such that they will most likely be viewed as opponents of the present regime. Given the Haitian legal system, that status means they face a substantial danger. Many will go to prison, their sole offense having been an attempt to gain asylum. In prison, many will be beaten, perhaps even tortured, and some will die as a result. See Section III B infra. Even those who are not imprisoned will not be entirely free. They will undergo harassment, and live with the continuing threat of a midnight visit from the Macoutes.

2. The State Department Report.

The State Department Report stands out in stark contrast with all other evidence presented on the treatment of returnees. It is the only evidence suggesting that returnees are not mistreated. The defendants relied upon the Report during the hearings on the preliminary injunction to argue that the plaintiffs would suffer no irreparable injury if returned to Haiti. Again, at trial, the Report served as the defendants’ sole evidence on the treatment of returnees.

The State Department organized the mission to Haiti for the purpose of reviewing “the situation of these [Haitian] returnees and to assure continued conscientious observance of U. S. obligations under the United Nations Protocol Relating to the Status of Refugees ... . ” Dx 20 at 1. The goal of the mission was to develop as much information as possible through face to face interviews with returnees on the situation surrounding their return to Haiti. This information was then, in turn, to be used by the State Department in reviewing political asylum claims filed by Haitian refugees. Tr. at 735. In addition, the Team held two days of discussions with Haitian officials.

Based upon the data collected during a twelve day mission, the State Department issued a Study Team Report reaching two conclusions on Haitian refugees. First, the report concluded, there was no evidence of a pattern or policy of mistreatment or punishment of returnees from the United States. Second, it concluded that Haitians come to the United States for economic as opposed to political reasons.

Despite the honorable intentions of the State Department and the Study Team members, the conclusions drawn by the Team lack foundation. The statements *483 made to the Team by members of the Haitian government, as noted above, lead inexorably to the conclusion that returnees face great danger. The evidence obtained through interviews with returnees is neither reliable evidence on how they were treated nor an accurate predictor of what would happen if the plaintiffs should be deported.

The idea of a Haitian human rights assessment project originated within the State Department’s Bureau of Human Rights and Humanitarian Affairs. In light of allegations it began receiving on the mistreatment of Haitians upon their return to Haiti, 68 the Bureau became concerned with whether its own information was reliable. Tr. at 719. The United States Embassy in Haiti had conducted a limited followup investigation on returnees in the Portau-Prince area; however, there was no available means of verifying the treatment or mistreatment of returnees in outlying areas. Following discussions between the Bureau for Human Rights and Humanitarian Affairs and the Inter-American Affairs Bureau, the decision was reached to send a team of State Department personnel to Haiti. Tr. at 719-721.

Patricia Darían, Assistant Secretary for Human Rights and Humanitarian Affairs, selected six members of the State Department to be members of the Study Team. 69 Tr. at 723. In preparation for the mission, several of the Team members and Secretary Darían held a number of organizational meetings in which they discussed the method for collecting the data sought by the Team. Px 310, Vol. II, at 39-40. They decided to conduct face to face interviews with returnees in Haiti.

In April of 1979 further meetings were held with nongovernmental human rights organizations. Px 331 at 65, 67, 71. As a result of the criticism and opposition to the Team’s proposed trip voiced at these meetings, the mission was postponed until further meetings could be held with groups in Florida. Tr. at 724, 725, Px 275, Px 276, Px 310, Vol. II, at 32-34. The groups in Florida also opposed the proposed mission. Their primary objection was the likelihood that the lives of the individuals interviewed would be placed in jeopardy once the Team departed Haiti. The criticisms of other organizations centered more around the methodology the Team planned to utilize. Specific criticisms and recommendations were made by two prominent organizations: Amnesty International [AI] and the Lawyers Committee for International Human Rights.

Michael Posner, Executive Director for the Lawyers Committee, advised the Team to reconsider their plan to interview returnees. In his experience, he had found it very difficult to obtain accurate information from Haitians because they were often extremely cautious and suspicious, particularly of persons in positions of authority. Posner stated in a letter to Robert Maxim, Human Rights Officer for the Bureau of Human Rights and Humanitarian Affairs, that “[i]t is quite possible that you will find some of these people are unwilling to speak to you, while others may tell you things that are in fact not true in order to protect themselves from perceived future reprisals by the Haitian Government.” Px 275 at 1. In addition, he suggested emphasis on areas of inquiry, including in-depth discussions with United States Embassy officers presently monitoring returnees and an investigation of the procedures used by the Haitian Immigration Department for handling returnees. He also suggested an inquiry into the role of Weber Guerier, former Commandant of Fort Dimanche, now reportedly the Chief of the Haitian Immigration Department. Px 275 at 2.

Stephanie Grant, Director of the Washington Office of AI and an expert in the *484 area of human rights research, attended one of the Team organizational meetings. Px 331 at 2-4, Tr. at 723. In a letter to Maxim subsequent to this meeting, Grant related four specific areas of concern with the proposed Haitian mission. First, she pointed out that the treatment of returnees in the past is not a conclusive predictor or indicator of the policy towards present returnees, especially those who have sought political asylum. She suggested that a more reliable predictor of treatment of returnees would be the present policy and practices of the government with respect to returnees and the present law in this area. She also expressed her concern with the method chosen by the team for the collection of data, that is, face to face interviews with Haitian returnees. She also pointed out that inherent problems lie in the use of a self-selected sample. Due to the sensitivity of the matter, she therefore recommended that the State Department publish their results only if they were confident that the investigation had yielded adequate data on which to base a conclusion of a clear pattern of treatment. Further, the letter contained a strong recommendation for obtaining the fullest assurances that interviewees would incur no repercussions for speaking with Team members. Finally, she stated that the proposed 30-60 minute interviews were inadequate to retrieve reliable and accurate information. Px 276.

These suggestions and recommendations went unheeded.

We took account of the concerns raised. They were valid ones, about the ability of people in our situation to come rolling into a town in another country and elicit accurate information.

We were aware of the concerns made. We did not incorporate all of the suggestions, but we worked hard on developing the series of questions we were going to use, and deal with the concerns as much as possible.

We decided to be explicit about our procedures in the final written reports. We were aware of some of the drawbacks in that kind of venture.

David Martin, Tr. at 725.

Q Is it your testimony that prior to the mission’s departure to Haiti you discussed with other members of the mission possible alternative approaches to assessing the treatment accorded Haitian Nationals returned to Haiti from the United States?

A Well, I’m not certain whether the word “alternatives” is really the appropriate word to use. Discussions were held as to a number of concerns that were raised regarding the proposed trip. I don’t think that there was any intention, since it had already been decided that a trip would take place and that it would be the best way of eliciting information as to the treatment of the returnees. There were discussion as to how that would be most effective. I don’t recall that there were any alternative methods of obtaining that kind of information. Lawrence Arthur, Px 310, Vol. II at 39.

In the face of grave opposition to the mission, the Team traveled to Haiti on May 10, 1979 with a list of 600 names and addresses of Haitians returned to Haiti from the United States and a list of 100 names of those returned from Guantanamo. Tr. at 737-38, 743. The list was compiled by INS and supplied to the State Department by the Justice Department; the list contained the names of Haitians returned from the United States during 1977, 1978, and early 1979, and others returned from Guantanamo in September of 1977 and August of 1978. Dx 20 at 5, Tr. at 736, 737, Px 310 at 138.

The first two days of the mission were spent in meetings with Haitian government officials. Dx 20 at 4, Tr. at 736. It was during these meetings that the Haitian officials related their policy on returnees. Haitian officials stated that the emigrants are “generally allowed to depart freely from official custody, within hours of their return to Haiti, following processing that is limited to filling in a brief questionnaire.” Dx 20 at 12. The Haitian government believed that most Haitian nationals who departed Haiti illegally were motivated en *485 tirely by economic factors and the government had little interest in these people, as a group. The Haitian government did point out that there were Haitians in the United States who had been actively involved in “political opposition” to Duvalier and would be subject to “prosecution” upon return. In fact, Officials went so far as to say that the government would “feel obliged” to take action against “real opponents” even at the risk of intense international criticism. Dx 20 at 11-13, Tr. at 161, Dx 49 at 82.

Following these meetings, the Team split into two groups, with one traveling to the provinces in North Haiti, and the other to South Haiti. Tr. at 736. Edward McKeon, a Team member, served as the interpreter for one group, and the wife of the Country Desk Office (A Haitian National) was the interpreter for the other group. Tr. at 734, Px 310 at 172. The groups spent approximately five to six days interviewing returnees in the outlying areas of Haiti before rejoining in Port-au-Prince. Tr. at 936.

The list of returnees was broken down by geographical areas between the two groups. Each group excluded the names of individuals in remote areas and made no attempt to locate them. The groups then traveled to areas in which they felt the greatest number of returnees could be located. Tr. at 138-39. For example, Lawrence Arthur testified that his group’s list of returnees originally contained 200 to 300 names and that 100 to 250 of the names were eliminated because they were not accessible. Out of the names remaining, the group attempted to locate 35 to 50 returnees. Tr. at 138-41. The other group attempted to locate 65 to 70 and was successful in contacting approximately 50 to 55. Dx 49 at 61.

Well, your usual practice-it varied a little bit. It is laid out in the report.

I suppose the most common method was to take the address we had and ask people where the street or region of town was and go to the area and simply ask questions. “Do you know so-and-so, where do they live”. We would have two or three names and we would ask about that and frequently were able to find them through those names.

The other way we used would be, sometimes, to go to the local community figure such as a priest and ask that person’s help in locating the individuals. There were other ways also.

David Martin, Tr. at 744.

On two occasions, once in the North and once in the South, messages were broadcasted over the radio announcing the names of the returnees sought to be interviewed and requesting them to meet with the State Department Team. Tr. at 789-90.

The announcement was in Creole and I believe it said-it would say something like, “Attention, attention. For the following people, the American Consul is in Port de Paix and wishes to speak to you about your trip to America. Please contact the radio station,” and then it read a list of names of people from that area. Edward McKeon, Dx 49 at 71.

70

Once contacted, each returnee was interviewed according to an established outline. One Team member asked the questions, the interpreter translated the question and then the answer. Notes were recorded in English by the interviewer. Tr. 749, Px 310 at 171.

Each interview followed the same procedure. First, the interviewer explained the nature of the mission and promised that any information provided would be kept confidential. The respondents were then asked identifying demographic questions including name, age, occupation, and family information. Then each was asked a series of questions designed to have the interviewee relate chronologically his or her departure from Haiti, arrival and treatment in the United States or Guantanamo, and their return to Haiti and treatment upon return. The interview ended with an instruction to contact the United States Embassy should they incur any reprisal for speaking with the Team. Dx 20 at 6-7, Tr. at 745, 746. *486 The length of each interview averaged approximately 20 to 30 minutes with some lasting more than one hour. Px 310 at 42, Dx 49 at 61.

Eighty-six returnees were interviewed. Family members of 11 returnees “who were not themselves immediately available when the Team was in their area” were questioned. Dx 20 at 7. Thirty of those interviewed had returned from Guantanamo. Tr. 739.

The collection of data on human rights violations is a delicate process. It is especially delicate when the sources of the information are the very ones who may have suffered the violations, and are consequently reluctant to recount their experiences. The process is complicated even more when those persons remain subject to reprisals. These problems are compounded when the interviewees are Haitian-people who are by their very nature secretive and suspicious, and who are by experience fearful of their government. Exhibit 23 to Px 331, Px 275 at 1. The State Department project fell considerably short of dealing with this delicate process with any amount of expertise. Specific criticisms of the research are discussed below.

a. Composition of the Study Team.

The selection of interviewers is critical to survey research. Interviewers must be able to establish a relationship of trust with the respondent. If the respondent is unable to confide in the interviewer, especially when there is a risk of reprisal, then the interview results will be inadequate. Linguistic skills, for example, are particularly important because reliance upon an interpreter complicates communication and discourages trust. Exhibit 22 to Px 331 at 32. Moreover, the interviewer must be perceived as neutral, with no allegiance or connection to the government being investigated. Px 331 at 29-30. Amnesty International, a group with a great deal of experience in human rights research, selects researchers on the basis of knowledge of a particular country or region, linguistic skills, and ability to arrive at objective judgment. Exhibit 22 to Px 331 at 28.

Great discrepancies in the status or characteristics of the researcher and the subject may inhibit the researcher’s ability to elicit information; on the other hand, studies indicate that interviewer-respondent similarity increases the validity of interview data. Discrepancy in race has been found to inhibit responses from blacks when interviewed by whites. Exhibit 23 to Px 331 at 21-22.

The composition of the State Department Study Team reflects a critical lack of expertise in human rights and social research. All six members were white males with no training in survey research; this has special significance in Haiti, a country with a long history of racial distrust. None of the Team, with the exception of McKeon, had any significant prior contact with Haiti, any particular knowledge of the country, or any linguistic skills in Creole. Perhaps more important, the Team represented a Department of the United States-the primary supplier of aid to Haiti, Dx 49 at 80, and the same government which had threatened these returnees with “life imprisonment” and returned them to the watchful eye of Duvalier. 71

It is hard to imagine two groups more dissimilar than the Study Team members and the Haitian returnees. The Team members were white, in positions of authority, well educated and unable to communicate without an interpreter; the returnees were black, poor, and uneducated. In a situation in which the interviewer must be viewed as trustworthy, neutral and objective, these differences could serve only to thwart efforts to adduce information of the delicate nature sought.

*487 b. The Sample.

The returnees interviewed by the Study Team are not a representative sample of the entire returnee population. The Team attempted to locate only 17 percent of the people on the INS list. Therefore, only 12 percent of the returnees were interviewed and only 9.3 percent of the Haitians returned from the United States were interviewed. 72

The response rate was characterized by AI’s Stephanie Grant as “entirely unrepresentative.” The Court agrees. The returnees interviewed were not a large enough group upon which to base a conclusion on no “pattern” of mistreatment. A response rate of 12 percent is simply too low to form the basis for the sweeping conclusions found in the State Department Report.

The sample was unrepresentative not only because of the low response rate, but also, and perhaps more importantly, because it was self-selected. Inherent problems exist in using a self-selected sample because only the people who are willing to speak about their experiences volunteer to be interviewed. Those with the most traumatic experiences are the least likely to volunteer their stories.

This inherent problem reveals a critical flaw in the Study Team research methodology. The Team depended upon persons who reportedly had been physically punished to volunteer to tell another governmental body-a government friendly with their own-about those abuses. Moreover, the Study Team depended upon these persons to volunteer at the risk of reprisal by their own government. Logic dictates that people who feared reprisals would simply not volunteer information or would lie to protect themselves.

The Study Team attempted to explain away this failing. They reasoned that even if the allegations of returnee mistreatment were true and people were afraid to talk because of the threat of further reprisals, there would always be someone brash enough to speak out. Dx 49 at 89. Yet, when someone did speak out, the Team treated his case as the exception-an isolated instance of abuse.

Returnee “X” was interviewed. He mentioned nothing about being beaten. In subsequent interviews with other people, accounts of the beating of “X” were reported. The Team went back to “X” and in a secret interview learned his story. Tr. at 750. At least one conclusion which could have been drawn from that experience was that returnees were simply not willing to report their mistreatment because of the risk of retaliation. The Study Team, however, chose to treat this as an isolated instance of abuse.

In addition to these problems with the sample of returnees interviewed, the method used to locate returnees posed problems. Returnees were not provided with anonymity. The use of public inquiry and radio broadcasts focused attention upon the returnees and alerted the local Tonton Macoutes to the people the Study Team sought to interview. In light of the political conditions in Haiti, such exposure would certainly be unwelcomed by returnees and may well have inhibited truthful responses. The Study Team apparently did not recognize or appreciate the danger of public exposure. The Team members did not even discuss the dangers that radio broadcasts might pose. Px 310 at 145, Tr. at 792. The Team even failed to inquire into the ownership (governmental or non-governmental) of the radio stations used for the announcements. Dx 49 at 71, Px 333 at 72.

One of the most serious defects in the selection of the sample, and one this Court finds critical, was the failure of the Team to determine if any of the returnees were in prison. Px 331 at 20, Tr. at 856. The allegations which prompted the mission *488 stated that returnees were being transported to Casserne Dessalines where some were mistreated or imprisoned. Would not the prisons be the first place to seek returnees, especially if the returnee may have been viewed as a “political opponent”?

c. Assurances to Returnees.

Assurances that interviewees would not be punished for speaking truthfully is essential to obtain accurate data on mistreatment. See Px 331 at 20. Notwithstanding a strong recommendation by Amnesty International and the expressed concern for the safety of returnees by other organizations, the Study Team secured no formal guarantees or written assurances from the Haitian government that returnees would not be punished for supplying information. Px 331 at 20. What is more disturbing is that the Team did not even discuss the need to obtain written assurances. Px 333 at 98. This failure suggests a real lack of understanding of the regime under investigation.

The record does indicate that the Haitian officials agreed to let the surveys take place without governmental presence or participation.

Q When you met with the Foreign Minister, did he give you assurances that returnees were not being mistreated?

A No. He wasn’t asked for assurances, and he didn’t give any.

Q Did he give you assurances that the people the Team met with would not be mistreated?

A He gave me assurances that the Team would receive the fullest cooperation from the government.

Q Was he specifically asked: The people that we talk to, can we get your assurance that they won’t be mistreated when we leave? Was that topic brought up?

A I don’t recall that it was.

Q Do you think the Team did, in fact, receive the full cooperation of the Haitian Government, as he said it would?

A Yes.

Frazier Meade, Dx 20 at 4.

Because no specific guarantees were obtained from the Haitian Government, the Team could relay to interviewees only the assurances that the government had agreed to cooperate fully with the survey efforts and that they were unaccompanied by anyone from the Haitian government. Tr. at 747. Such an assurance could well have worked to the Team’s disadvantage. If the Haitian, government was perceived as supporting the Team’s efforts to collect information, there could have existed a basis for distrust and perhaps fear of the Study Team. Returnees may have reasoned that if the government trusts the Study Team, the Team should be distrusted.

In any event, it is rather doubtful that any assurances from the Haitian government would have been taken with confidence by the returnees. Only assurances from Duvalier would have had the force of law, and from past experiences, the people would have had little or no confidence in a promise by Duvalier. In a country where there exists no judicial system outside the major cities, where “justice” is carried out on a local level by the Tonton Macoutes, and where violations of human rights is notoriously widespread, a promise from the government or even Duvalier would have been meaningless.

The record indicates that the Haitian government’s promise of cooperation and no surveillance was not kept.

Q Could you explain to the Court the description of how they interviewed the people?

A The people were sitting at three tables. The investigators were sitting with the person. The others were sitting with some other people. And they were questioning them.

There was a guy by the names of Jean Claude Pierre Louis. He is the Assistant Commander of the Tonton Macoutes. He is the correspondent for the national radio, which is the government radio station. He was there to listen to the people’s statements and write them down and send them to the national radio.

*489

Q Did you observe as to whether or not he was anywhere near the interviewers while they were interviewing the returnees?

A Yes, he was there, because he was listening to what the people were saying and writing it down to send it.

Q You stated that there were three different tables?

A Yes. He was going back and forth, back and forth. He was trying to hear a little bit of everything that was being said.

Q ... How do you know this gentleman was a Tonton Macoutes?

A Because I saw that sometimes he wore a Tontons Macoutes uniform and I have seen him sitting at his office.

Q Do you know if other people were afraid to talk because he was there?

A Yes.... I arrived at 8 o’clock in the morning.... When I got there, I was standing waiting my turn because they started questioning others. After that, after those had spoken, they kept on calling our names.

Besides that, there were people that had got there and became afraid to talk because they saw the assistant of the Tontons Macoutes was present. They knew what they were stating, the assistant to the commander of the Tontons Macoutes would write it and send it to the national radio. They were afraid that he would take their names and put it before the President.

Q Why were they afraid of that?

A They were afraid of being arrested. Sebastien Francois, Tr. at 1866-1867, 1871.

The assurances that were provided by the Study Team were given at the conclusion of the interview. The interviewer “requested” that the returnee contact the United States Embassy if the returnee “met with harassment” as a result of speaking with the Team. Dx 20 at 7. No specific information was provided on how to contact the Embassy nor were any names of particular Embassy officials provided. Px 333 at 96, Tr. at 748.

Assurances to returnees that they would not be harmed was necessary to motivate truthful responses. Fear is not easily overcome, and telling a person that if he or she is mistreated they can report it to the Embassy of a foreign government does absolutely nothing to quash that fear. Retaliation by the Tonton Macoutes or other government force would be quick, and perhaps final; there would be no chance to travel to the Embassy in Port-au-Prince to prevent the retaliation. Once the incident occurred, what good would reporting it to the United States Embassy do? Probably nothing more than provoke another, and perhaps more serious, confrontation with the government. In any event, because the assurances were offered at the end of the interview, they could not have motivated truthful responses during the interviews.

Not only were adequate assurances not obtained, but no follow-up program was conducted by the State Department to determine if interviewees were in fact, harassed. Px 333 at 88-92.

After that (the Study Team interview), particularly in Haiti when you do an interview like that with a delegation, they always come by and question you, to find out what it was that you said, and when that happens, you are a person that is like, you know, unbalanced, because you may be sitting there and they come and arrest you.

Sebastien Francois, Tr. at 1889.

An effort to follow-up and re-interview these returnees was attempted by a nongovernmental group, and the results were alarming.

Raymond Alcide Joseph, publisher of the Haiti Observateur, in conjunction with a television station, sent underground reporters to re-interview some of the returnees the State Department had interviewed. The purpose of these follow-up interviews was to determine whether the interviewees had met with any mistreatment as a result of their conversations with the Study Team.

A ... (A) major television station here was concerned about the State De *490

partment report, and came to ask, because they know we have underground reporters in Haiti, and said let’s work together to find out what happened to these people. We will foot the bill.

We sent our reporters to talk to some of them. In everyone-they went to about five people, they said we cannot talk to you because we have been told not to say anything. And they have tried to find out who told them; and they would not answer. They said, we won’t talk to you at all.

Q Have you received any other reports concerning either the fate of returnees or the fate of those persons who have spoken to people who have come to Haiti to investigate matters concerning the conditions in Haiti, for example, in terms of the OAS (Organization of the American States)?

A In the OAS-that’s something else. People who have spoken to the OAS-quite a few of them have been arrested after that, two months after the OAS left Haiti. A house was machine-gunned, because some of the people in there-they were young people-had spoken to the OAS. And three of them were killed. This is a matter of record, newspaper record, at least.

Q Now, the OAS reports and those incidents occurred prior to the time the State Department-

A Yes. That is between the OAS and the State Department Team visit to Haiti.

Tr. at 310-11.

Sebastien Francois was forced to flee from Haiti as a direct result of his interviews with the Study Team.

Q Did anything happen to you subsequent to your interview by the American Study Team?

A After that, the Tonton Macoutes called me into the office to question me. He called me approximately three times. He kept on questioning me and kept asking me what kind of secret story I was discussing with the delegates, and why was it that he could not listen to it.

I had to tell him-I told him it was nothing important, he was just asking me information which I gave to him.

He asked me if I was not afraid of what could happen to me, so that if I did not really tell him what happened, he could cause something to happen to me. It was after that that I became afraid, and I exiled myself.

. .. Exiled myself. That is how come I went into hiding until I managed to leave. I knew they were looking for me.

They hid me and my family sent word to me to go to such-and-such place so I could leave, because they were looking for me, to arrest me. ...

Q When you had the interviews with the Tonton Macoutes, did he say to you why he was interviewing you?

A Yes. He said that to me, that he would like to know what serious matters I was discussing.

He said I was saying bad things about Haiti. He said that I was speaking of the government, and that is why he was so interested in me, and was I not afraid of what could happen to me. . ..

He asked me, wasn’t I afraid they would throw me in jail and never release me, or even kill me.

The first time he spoke to me he said he was going to talk to me seriously, and I had to tell him, and if I didn’t want to tell him, anything could happen to me. He said that I had to tell them truly what I was discussing with the man.

He called me many times to his office.

Q On the day the Americans came, did you speak to the Americans at any time alone, even if it was for a few minutes, and outside of the presence of the Macoutes?

A Yes.

Q But was it for a short period of time?

A Yes.

Q Okay.

*491

A That is exactly what caused him-like, because he saw-he was even upset with the person that was talking to me. After that he was quite angry and told me to stop by his office, and I did not stop by, and the next morning he saw me going by in a car. He stopped me and he asked me was I not afraid, and didn’t I fear after he told me to stop by his office and I did not stop by, and who was I that he had told me to stop by his office, and who was I not to.

Tr. at 1905-11.

d. The Interviews.

The interviews of the returnees were not privately conducted. “Most interviews ... were held in a relatively private setting, although in a few instances privacy could not be arranged and the interview was held within earshot of a number of bystanders.” Dx 20 at 7. Because the Team became the focus of attention as soon as they arrived in a village, the interviews were held while curious and interested villagers (and perhaps others with motives more than mere curiosity) stood nearby. Tr. at 1880.

Q Now, is it true that you weren’t able to have total privacy in the interviews you conducted?

A Yes.

Q Why is that?

A Well, I would say it was because the towns we went to were very backwards and anything outside of the day-to-day routine is an event. And our presence was an event.

Q Would townspeople kind of hang around to just observe?

A They would hang around, yes. Edward McKeon, Dx 49 at 61. felt they could have trusted the members of the Team, it is not at all clear that they felt they could have trusted other members of the village.

The lack of privacy could only inhibit responses. These people were asked to reveal mistreatment by their government; such statements would shed an unfavorable light upon Duvalier, something which Haitians know could be dangerous. What is more, they were asked to make these statements publicly. Even if the respondents

Q Approximately how many people were there being interviewed by the American Team?

A Oh, there were a lot of people.

Q Could you give us a rough estimate of how many?

A The number of people?

Q Yes, approximately.

A There were approximately 30 or 40 people. But there were a whole lot more that were afraid to come. They were afraid by that business of Tonton Macoutes, because if they had seen them talking they could later on call them to the office and ask them about the questions they were being asked.

Q During the time that you were at the hotel that morning, how many Haitians did you personally see talking to Americans?

A I saw people standing, but I did not take notice or count how many people talked, because they came with a list. They had called the names of a number of people to appear. Some they found and some they did not find.

They asked where the other people were, and some people answered. They said they did not know which way they went. They did not know if they were there or had gone with the number of people that they had cited that they had wanted to see. They could find approximately three out of those, because I think when they came, they called the names off of 20 or more people... . Perhaps they found maybe three, and they asked where the rest of the people were. They could not find them. They could not do anything.

Sebastien Francois, Tr. 1868, 1883-85.

The length of the interviews was totally inadequate to gather reliable information. Each interview lasted 20 to 30 minutes, 73 Dx 20 at 7; the use of an interpreter re *492 duced the interview time by one-half. Px 331 at 88. Therefore, the actual time spent exchanging information was 10 to 15 minutes. It is difficult to believe that within the span of 15 minutes the Study Team interviewers could gain the confidence of a returnee to the extent that he or she would provide life threatening information to total strangers, and also gather a complete story of the returnee’s experiences. The experts with whom the Team consulted considered two hours the minimum amount of time necessary to elicit truthful and complete information. Px 331 at 36-37.

Not only was the length of the interviews inadequate, but the questions asked were not designed to provide a method to check the truthfulness of the returnee’s responses. In survey research, one question which requires the respondent to provide “threatening” information which can be verified, should be asked. 74 This provides an objective method to check the accuracy and truthfulness of the responses. The Team did not intentionally include such a question. However, Stephanie Grant testified that there was an accidental accuracy check in the questions asked: whether the respondents applied for political asylum in the United States. 75

Every returnee interviewed answered that they had not applied for political asylum. Yet, the Report indicates that the State Department knows that some of the returnees did apply. Dx 20 at 9. Unfortunately, the State Department has conducted no follow-up to determine which returnees filed and which did not. The Department has failed its one (accidental) opportunity to verify the truthfulness of the interview responses.

Because the Study Team was gathering information from people of another culture, the questions should have been designed to compensate for social or cultural responses. They were not. For example, two social researchers collecting data from Haitian villagers concluded that Haitians will distort their histories to give the impression that they have not deviated from the cultural ideal. Exhibit 23 to Px 331 at 39-40. The State Department’s conclusion that Haitians come to this country solely for economic reasons was based upon the responses to the question of why the returnees left Haiti. The response given was that they wanted to find a job. This may well have been the response the Haitians thought the researchers wanted to hear and the response which they thought would deviate least from the American, and perhaps the Haitian, cultural ideal. Only careful questioning could have distinguished between a true and a cultural reply.

e. Conclusion.

In short, the State Department Study Team members did not achieve the goal *493 they set out for. They failed to obtain accurate, objective information on the treatment of returnees, and failed to comprehend the implications of that which they did learn. Ultimately, their conclusions can be given little weight, and do not provide a substantial contradiction to the pattern of mistreatment shown by the evidence.

B. Haitian Prisons: Persecution Exemplified.

To be marked as a political opponent in Haiti is to be sentenced, in most cases, to prison. In each of the stories told to this Court, the conclusion was death, flight, or imprisonment. The full consequences of opposition, therefore, are only revealed by examining the treatment of prisoners in Haitian jails. These are the conditions to which returnees are exposed when deemed part of the political opposition.

Fort Dimanche Prison, where I was incarcerated, myself, where I lived with prisoners which were deported from the United States, we lived in cells measuring nine square meters or ten square meters-square feet, pardon me.

The cells kept between 22 and 33 prisoners. These prisoners are detained in the nude, with no medical help. The receive a totally abject food.

At night no prisoners were allowed eight hours sleep. The absence of necessary vital space obligated them to rotate in order to lay down.

This great promiscuity, and the absence of medical care, condemned to a certain death, the majority of the prisoners. They suffered from tuberculosis, malnutrition and even vermin got them.

At the prisons, a great percentage of the prisoners died either of tuberculosis or the consequence of torture or wounds inflicted during their time there. Another method of torture utilized at the prison was that at night the cadavers were not buried. They were devoured by dogs in the back of the jail and the sinister barking of the dogs would take sleep away from all prisoners.

I could describe more definitely the conditions of tension, but I can only tell you, simply, that only during the year 1976, from a number of 150 prisoners, 96 died at that prison.

Marc Romulus, Tr. at 81-82.

There are three major prisons in Haiti, as well as a network of local jails. The major prisons are Fort Dimanche, Cassernes Dessalines, and the National Penitentiary. Of these three, by far the most notorious is Fort Dimanche. It was referred to by witnesses as a place of execution, Tr. at 455, and has a history of unrivaled cruelty dating to the first days of the Duvalier regime. See Px 334. The common presumption among the people of Haiti is that when someone is sent to Fort Dimanche, they will not be seen again. Tr. at 1194, 1221. According to the Duvalier government, Fort Dimanche was closed in 1977. The State Department failed to confirm this assertion when a study team it sent to Haiti did not request permission to visit the prison. See Tr. at 856. The testimony at trial clearly showed that Fort Dimanche remains open. One witness who had held various positions in the Haitian armed forces, including employment at Fort Dimanche from 1969-71, testified as follows:

A The prison at Fort Dimanche is a prison for political prisoners and a place of execution.

Q What year did you leave Haiti?

A February⁸, 1979.

Q Was it your understanding that Fort Dimanche is still a prison for execution and a political prison?

A Yes, to this day.

Anonymous # 2, Tr. at 455.

Jocelyn Marcelus testified at trial he was imprisoned at Fort Dimanche until March 17, 1979. Tr. at 1255. There was also testimony regarding two persons who reported that they were imprisoned at Fort Dimanche during 1979. See Tr. at 2055-57; 2076-77; 2085-87.

The prisons of Cassernes Desslaines and the National Penitentiary are fundamentally the same as Fort Dimanche. While the Cassernes was described as a place for in *494 terrogation, Tr. at 460, it is clear that interrogation in Haiti is normally accompanied by physical abuse.

Serge Donetien is a young peasant. He came to my cell at Fort Dimanche during August 1976. He was coming from the torture chambers at Cassernes Dessalines, where he was covered by wounds.

Tr. at 83; accord Tr. at 1946.

And while the National Penitentiary had somewhat better facilities for military personnel sent there for disciplinary purposes, Tr. at 1944-45, others were treated so badly that they died. Tr. at 1945.

Q While you were held as a prisoner at the National Penitentiary, did you have any contact with people who had been returned to Haiti from the Bahamas?

A Quite a few people I saw.

Q Were these people being held prisoners?

A Yes, they were held as prisoners.

Q Can you describe the physical condition of these people that were from the Bahamas?

A ... These people are being taken such bad care of that they have boils on them....

They sometimes died.

Every morning the ambulances would come from the General Hospital and pick them up. They would find them dead on the floor sometimes.

If you don’t have between¹,000 and¹,050 dollars to pay, you stay in jail.

Either they die or they transfer them to another prison.

Daniel Voltaire, Tr. at 1944-45.

The conditions in Haitian jails are inhuman. There is almost never sufficient room for the persons in a cell. Single persons are placed in individual cells as small as two feet by three feet, Tr. at 1131, and ones in which they can neither sit nor lie down, Tr. at 1183. Larger cells are overcrowded. Marc Romulus was held in a ten foot by ten foot cell containing between 22 and 33 persons, so crowded that they had to sleep in rotation. Tr. at 81, 97. One witness lived for two years in a twelve foot by twelve foot cell with as many as 40 persons. Tr. at 470-71. The testimony of all the witnesses was substantially the same. See Tr. at 512, 1279. Aside from the absence of space, the cells also lacked sanitary facilities. Prisoners were provided with metal cans for toilets, see Tr. at 1225,1255, or else they were provided with nothing at all, Tr. at 1132-33, 1187-88. The food was inadequate; most of the witnesses described having one meal a day of watered-down corn meal. See Tr. at 515 (practically no food at Fort Dimanche), 1263-64 (two meals: Biscuit in the morning and corn meal in the afternoon), 2064 (watery corn meal once a day), 2081 (watery corn meal once a day). One former prisoner testified that when he was given water it “had little things in it; little toads.” Tr. at 1264. The prisoners were kept in the nude. Tr. at 81-82, 513, 1179, 1257. When asked if he ever had any visitors while at Fort Dimanche, Jocelyn Marcelus stated, “For me, it was rats, all kinds of insects, mice, roaches, vermin, all kinds of bugs. ... ” Tr. at 1278. The effect, and perhaps intent, of this treatment is undeniable.

Q For how long were you held at Fort Dimanche?

A I spent three years and a month, approximately.

Q Was there any room for beds in you ceil?

A There was no way, in such a small cell, to put a bed.

Q Would all of the prisoners in your cell be able to sleep at one time?

A We had to rotate.

Q Why was that?

- A The cell was very small. It was twelve feet long and ten feet wide, and sometimes there were 30 of us in that small cell.

Q Did the prison provide you with clothing to wear?

*495

A Well, when I was transferred from the Cassernes to Fort Dimanche, I had clothes, in fact. But since we had almost no paper-excuse the expression-to wipe ourselves, we had to cut these clothes in small pieces and use them. And since for the most part we suffered of diarrhea, these clothes went by very fast. So, in fact, we spent most of the time-we were naked.

Q How much did you weigh when you went to prison?

A I would say approximately between 185 and 190 pounds.

Q How much do you weigh today?

A Approximately I would say the same weight, 180 pounds.

Q How much did you weigh just before you got out of prison at Fort Dimanche?

A In February of ’77, upon leaving Fort Dimanche, I estimate that I weighed about 80 or 85 pounds. I was in the state of a skeleton.

Patrick LeMoine, Tr. 512-13.

These conditions are not limited to Haiti’s major prisons. They appear to exist in each of the small police station jails throughout the countryside.

I was driving to a coastal town in the South. We were stopped at a police checkpoint.... The person who stopped us turned out to be a friend of one of my traveling companions, so he invited us in for coffee and we sat in the prison area and had coffee with this person, who was referred to as a Commander. ...

He, obviously, had control over this jail. It was a two-room and I’d say each room was approximately nine by twelve. It was not a very large structure.

... being in the prison, you know, local prison, ... was something not many Americans had the opportunity to do. And also, . .. sitting with him, we could see inside the cells. So we could see what the conditions were. And that was something we discussed among ourselves at the Embassy.

Q When was this, approximately?

A It was in May of ’77.

Q Just generally, what was your perception of the conditions in this particular jail?

A Well, I don’t know if I’m choosing the right word, but the word I think of in that sense is fetid. It was a very small-there were all men in each room and they were very, very crowded. I’m not good at guessing numbers but I’d say perhaps there were 40 people in each room. Certainly not enough that I don’t think everyone could have sat down at once. It would have been difficult. And they all looked pretty scraggly, like they had been in there for a while.

Dx 49 at 11-12 (deposition of Edward McKeon).

The mistreatment of prisoners includes torture and beatings. Four witnesses testified at trial concerning the beatings they received, Tr. at 88-89, 1130, 1182, 1247; three plaintiffs included stories of beatings in the sworn statements they gave INS, Dx² at 27-31, 100-01, 278; and several witnesses reported observing beatings or their effects, or hearing reports of beatings, Tr. at 83-86, 424, 2057, 2075. The details of a number of the cruelties were described to the Court. Merilien Mezius told how he was beaten twice a day during a five-day stay at Fort Dimanche. Tr. at 1182. Some aspect of this beating so damaged Solives Romet that to this day he is able to speak with only the greatest effort, and then with a pronounced stutter. Tr. at 1143-44, 1192. Marc Romulus learned by experience of several methods of torture.

A ...

This method consists of tying the arms and legs of the prisoner and to introduce between his arms and knees a stick, and then roll him up in a ball. They lift him between two tables and sometimes a pulley and they balance him according to the movement of a clock and the two extremities of the movement.

There are four groups of executioners. What I mean to say is two groups of four executioners; one armed with clubs and *496

the other with whips. The whips are made out of cows nerve. The prisoners are balanced thus between the two types of whips.

The length of torture depends on his physical resistance.

Second of all, he is kept standing without food, without the right to sleep, his arms tied behind his back, 24 hours upon 24 hours.

They kept me 15 days without sleep or eating and without drinking. During that time period one is kept in certain, specific cells at Cassernes Dessalines. The conditions are such that it seems after three months I did not have one black hair left.

Marc Romulus, Tr. at 88-89.

The treatment of prisoners is equally stark in rural jails. A State Department employee recalls observing the following event:

I went to a prison to see an American citizen who had been arrested. And while I was there

...

I didn’t talk to these particular Haitians. But approximately six women were brought in-poor women-dressed in somewhat raggy fashion. I had the thought that they were market women who were arrested for some infraction. And they were whipped with very large, ugly-looking-well, I believe they were horse whips.

Dx 49 at 8-9 (deposition of Edward McKeon).

The cumulative effect of the conditions in these jails is often death. In 1975, sixty persons died in Fort Dimanche. Tr. at 517. In 1976, the number of deaths was between ninety and ninety-six, out of a total population of 150. Tr. at 82, 101, 517. Amnesty International concluded in 1977 that, “Haiti has one of the world’s highest mortality rates among detainees.... ” Px 339 at 275 (press release issued November 14, 1977). The statistics are not surprising.

... They hit me with their hands and then they hit me with the clubs. Their hands were loaded with rings and things....

When my teeth came out, I put my head down.

I was looking at a lot of blood that was coming out of my nose, my mouth and my ears.

It was not only my teeth. My eye, also. To this day I have something wrong with my eye.

My vision is blurred, blurred, blurred. That was completely swollen, the eyelid was swollen out to here. My whole face.

For myself, the way I see it, I must have spent five, six, seven minutes laying on the ground, rolling in the blood.

When they came to pick me up, they picked me up from the back of my neck. They saw I was in bad shape. They saw I was like agonizing and they pushed me.

When I regained consciousness, that is when they started beating me fresh, once more.

They spent over two or three hours beating this guy.

They quit beating me when they saw I could not take any more at all, when they saw they were beating on a dead man.

Jocelyn Marcelus, Tr. at 1248-52.

There is substantial evidence that inhumane treatment continues to this day. Indeed, the quote immediately above comes from an individual who was not released from Fort Dimanche until March 17, 1979. Tr. at 1255. The State Department concluded, in its report issued February⁴,1980, that reports of torture in Haiti during 1979 were credible. See Dx 60 at 341. Furthermore, it concluded there was reason to believe that beatings were still being used for punishment, to extract confessions, and to improve prison discipline. Id. at 341. It also found seriously deficient medical care and diet. Id. There can be no doubt that someone imprisoned in Haiti is subjected to persecution.

Q ... when you regained consciousness, was your body sore? Did you feel whether you had been beaten on other parts of your body?

A It is not that I felt they had beaten me. I felt like I was not alive. I felt like I was dead.

Solives Romet, Tr. at 1181

*497 C. Haitian Power: The Rule of the Duvalier Security Forces.

The occupants of Haitian prisons are the political opponents of Jean-Claude Duvalier. Invariably, they arrive there through the actions of one of the several paramilitary security forces operating in Haiti. Those forces are an integral part of the Haitian political system.

Francois Duvalier’s rise to power in 1957 was accomplished with the aid of the military. His predecessors were removed from office through the use, or threat, of military force. Indeed, the military supervised the election by which Duvalier gained office. Tr. at 12-13. Much as Haiti’s military had helped bring Duvalier to power, however, it presented his greatest threat. The only consistent center of power in Haiti was the military; Duvalier was now subject to the actions which had unseated his predecessors. The inadequacy of the military’s support for Duvalier was demonstrated when it failed to resist an attempted invasion and overthrow in 1958. See Px 334 at 593-95. Duvalier’s solution was simple: Weaken the military. He disposed of the very military commander who had helped him obtain office, id. at 591-92, and set about creating a force loyal to him which could counterbalance the military.

Duvalier himself knew all his predecessor who’d been overthrown by the military and he set about (as) one of the-of his main tasks to make sure that didn’t happen to him by dividing the military, by shifting military officers around, sending them off, by setting up his own private (army) militia-as a counterbalance for military. This was the origin of the Tonton Macoutes which were basically set up by Duvalier, to counterbalance possibility of the military coup against him. Dx 25 at 10 (transcript of State Department briefing to INS employees) (quoting Jerry DeSantilliana, State Department Country Officer to Haiti).

“Tonton Macoute,” literally translated, means Uncle Knapsack, and is the character from Haitian fable counterpoised to Uncle Christmas, of “Tonton Noel.” Px 334 at 596 n. 9. Whereas good children receive presents from Tonton Noel at Christmas, bad children are carried off in the knapsack of Tonton Macoute, never to be seen again. Id. The name was quite appropriate, for the Tonton Macoutes, as the quotes above indicate, did indeed make persons disappear. The bad persons visited by the Macoutes, however, were not criminals, but enemies of Duvalier. A I worked for the Government of Haiti as a Macoute.

Q Were you still a member of that organization when you left Haiti in 1979? A Yes.

Q Could you tell us briefly what the purpose of the organization is?

A Organization is a body that watches over the security of the Haitian Government.

Q ... Do members of the Macoutes have the power to arrest people in Haiti? A Yes.

Q For what kind of reasons would the Macoutes arrest someone in Haiti?

A People that talk bad about the government.

Q As a member of the Macoutes did you wear a uniform?

A The uniform was blue shirt and blue pants.

Q ... were you given a weapon to carry with you?

A Yes.

Q Who is the head of the Tonton Macoutes in Haiti?

A Jean-Claude Duvalier. Q Did (the Macoutes) arrest any people who were charged with murder?

A People that are accused of murder do not have anything to do with the body of the Macoutes.

Anonymous # 1, Tr. at 413-15, 425, 432.

*498 Originating as the Tonton Macoutes in 1958, the paramilitary in Haiti has expanded and diversified over the past twenty-three years. The Macoutes, at least officially, are now referred to as the Volunteers for National Security (VSN). 76 Indeed, the individual quoted above is a member of the VSN. Dx 58 at 34. His identification of himself as a Tonton Macoute rather than a VSN was echoed by every Haitian witness at trial; they all referred to the Macoutes.

The Macoutes are perhaps the single most pervasive influence on Haitian life. The evidence indicated that they are present in every township of Haiti, and that their method of operation touches nearly everyone. Although many are not actually paid, the Macoutes are rewarded for their loyalty to Duvalier. There is continuing credible evidence that the Macoutes have, and exercise, the power to extort money and crops in rural areas, Dx 49 at 28 (deposition of Edward McKeon, former U.S. Embassy official in Haiti), and to dispossess the lands of peasants, 77 Dx 48 at 122-24 (deposition of David Martin, Office of Human Rights and Humanitarian Affairs, State Department). See generally Tr. at 14-20. They recruit, and control, through extortion.

Q How did you become involved with the Tonton Macoutes? Did you seek them out or did they seek you out?

A Well, they were sabotaging the business for the business people, big or little, and I didn’t want my business to be sabotaged, so I joined.

Anonymous # 1, Dx 58 at 20.

Each township group of Macoutes is somewhat autonomous. General orders come from the Palace, but the decisions to arrest or imprison are made on a local level. Tr. at 415-17. In addition, there is almost no communication between groups of Macoutes. This local independence prevents any concentration of force, lest the Macoutes themselves become a threat to Duvalier’s power. Tr. at 12-22. When a former Macoute was asked how many other members there were in the organization, he stated he had no way of knowing. Dx 58 at 21.

As a result of their means of operation and independence, the Macoutes essentially determine who is an enemy of the government. There is no appreciable judicial system in Haiti, see Section D, infra; their actions are accordingly unchecked and unreviewed.

Q Had you been charged with committing any crime in Haiti?

A What do you mean, accused of a crime?

Q Had you been charged with robbing someone, shooting somebody, or anything like that?

A If I shot somebody they couldn’t have accused me.

Q Why could they not have accused you if you had shot some?

A Because whatever a Macoute does in Haiti is well seen by the Government. Anonymous # 1, Dx 58 at 77.

Because the Macoutes are an organization created for political purposes, they bring politics to the villages of Haiti. To challenge the extortion by which the Macoutes exist is to challenge the underpinnings of the political system. Accordingly, to resist extortion is to become an enemy of the government. Moreover, it is not unreasonable to assume that when a single individual has the unfettered power to determine who is an enemy of the government, the individual’s enemies are soon classified as the government’s enemies. Several of the plaintiffs found themselves in such a situation. Solomon Jocelyn sought to stop expropriation of land, and found himself in prison for his efforts. 78 Odilius Jean sought only to protect his personal property:

*499

Well, what happened to me (in 1965) was-it was a Macoute that came to rent a bicycle from me for one dollar. When I looked around, I didn’t see him. I never saw him at all. I looked for him all over the place. I found him standing somewhere leaning on his bicycle. I went in and told him, “How come you didn’t bring the bicycle back to me?”

He told me, “Don’t you know that I bought it from you for a dollar?”

I thought he was kidding. I held the bicycle and took it away from him. Right away he hit me with a club. He had already hit me.

After that, when I was forcing to see if I could get away, four more came and started beating on me.

They started beating on me. They break my head over here to—

I ran. I went. I ran and hid in the woods.

While I was hiding in the woods, one of my cousins knew where I was hiding. He came and told me they had taken one of my brothers.

He said they were pressuring (my brother) to tell them where I was. When he couldn’t tell them where I was, they took him to a public place in front of everybody and they killed him.

I spent another two or three months, and the way I left-the reason I left the place was-I had another little brother. My cousin came and told me they held him and cut his throat with a knife, but he did not die.

Odilus Jean, Tr. at 1845-49.

Two other paramilitary groups are worthy of note for the role they play in Haitian society. 79 The “Service Detective,” more commonly referred to by its initials (S.D.) is Haiti’s secret police force. The S.D. operates principally from the Casernes Dessalines, a detention center in Haiti’s capital city of Port-au-Prince. Tr. at 89-90. Another group, the Presidential Guard (also referred to as Palace Guard) are headquartered at the Presidential Palace, also in Port-au-Prince. Tr. at 91. Unlike the Tonton Macoutes, these groups do not have country-wide impact; their actions appear limited to Port-au-Prince and its environs. Otherwise the groups are indistinguishable. The forces clearly work together, and one member of the Presidential Guard testified that they receive orders and attend speeches together. Tr. at 1942, 1988-89. All of the groups serve the sole purpose of protecting Duvalier. A I was a musician in the National Palace.

Q Were you in the Presidential Guard?

A Yes.

. . . The interest that I have each time that a person is denounced-you denounce a person, excuse me, either coming from the United States or some conspiracy against the government, not only are you given money but they also increase you in rank.

For example, if I see two young men speaking, I go and tell (my superiors) that they were speaking against the government, and they said to me, “You did your job.” They give you money.

Sometimes when you do that, they give you privileges. They send you to school. They say you should go to the academy, and you are going to be a Duvalierist. Daniel Voltaire, Tr. at 1919, 1938-39.

*500 The defendants have taken the position throughout this litigation that the conditions in Haiti are improving. The excesses of Francois Duvalier have faded, it is alleged, under his son Jean-Claude. But the evidence is clearly to the contrary. The State Department country report for 1980 stated bluntly that “[t]he influence of the relatively undisciplined militia increased” in Haiti in 1979. Dx 60 at 341. Indeed, throughout that report it is indicated that human rights declined in the past year. The testimony supports this conclusion. Edouard Franck stated that he was arrested by the S.D. on August 28, 1979 for his political opposition to Duvalier. Bernier Pierre, a Haitian national presently a naturalized Canadian citizen, testified that he visited Haiti in August of 1979, because he had heard such a trip would be safe. He met with friends in Port Salut, the city of his birth. After noticing persons listening to his conversations at a party, he decided “the atmosphere was unhealthy” and returned to the capital city of Port-auPrince. When he attempted to leave the country, however, the following events ensued.

Well, when I arrived at the airport with my wife, ... we had our luggage weighed, and the passport controlled the same way they control everything.

And at that moment, they gave my wife her passport back and they kept mine. They made me go into the cabin of the Immigration officers behind the glass doors, supposedly for a last minute control. But they reassured me I would not miss my plane, it was just a little control, nothing at all.

After I stayed in and waited three or four hours. Nobody spoke to me until such time they gave me the order to follow a man, a civilian, that appeared. He didn’t identify himself.

Immediately afterwards, another came and followed me, and together they took me to a Jeep that was parked in the back of the airport.

They took me directly to Cassernes Dessalines.

When I arrived at the Cassernes Dessalines, where the political police of Duvalier is kept, they took me in front of a major, who let me know they accused me of inciting a revolt, because of the way I was speaking to my friends.

He asked me what I had to answer. I told him I denied the whole thing, because I didn’t know anything about it.

. .. After that, they took me to the National Penitentiary.

Q Were you ever given the assistance of a lawyer?

A No. Q Were you ever officially charged with a crime?

A No. Q Were you ever taken before a judge?

A No, I never saw any judge.

Q How long did you remain in the National Penitentiary . ..?

A Well, altogether, I spent six days. . . .

Bernier Pierre, Tr. at 535-41.

The Rule of the Duvalier Security Forces is important to this case for two reasons. First, it must be understood that virtually any encounter with a member of the security forces is a political encounter. When determining whether someone has been politically persecuted, this must be kept in mind. Second, the security forces will determine whether someone is persecuted on their return; accordingly, their understanding of how returnees are to be treated is more important than the public statements of the Duvalier government. The uniform rejection of the plaintiffs’ claims for asylum must be viewed in this light.

D. Haitian Legal Systems: The Absence of a Rule of Law.

The existence of the Duvalier Security Forces is a clear indication of the lawless *501 ness of Haitian society. The freedom of the forces from review or restraint is a measure of the absence of law. Where there are no limits placed on the actions of certain individuals, there is no law. Haiti has inverted a famous quotation: Haiti is a nation of men, not laws.

The Constitution of Haiti is a good one, containing provisions for the guarantee of important liberties. But it is little more than a theoretical model. In practice, the Constitution is undermined by exceptions and neglect. Each year, the legislature enacts a Plein Pouvoir or “full powers.” This action effectively eliminates a number of articles of the Constitution for the seven or eight months a year during which the legislature is not in session. When the legislature is in session, a “state of siege” provision of the Constitution allows the President, with the approval of the legislature, to suspend constitutional protections. This exception was employed during the decade of the seventies, though not since 1977. Finally, and perhaps most insidiously, recent years have seen the emergence of a practice by the President of simply suspending selected provisions of the Constitution. Tr. at 1030-33. The implementation of these exceptions is somewhat redundant. The legislature is loyal to Duvalier; only one non-Duvalier candidate has ever been elected. See Section³ infra. As the State Department has concluded, “The legislature plays no independent role in formulating national policy.” Dx 60 at 346; accord Dx 49 at 30. The effect of this system is quite clear. The law in Haiti on any given day is what the President says it is.

The Haitian Constitution provides for a system of justice much like that in the United States. For example, a criminal suspect may only be arrested upon a proper warrant, and must be brought before a magistrate within forty-eight hours of arrest. 80 Dx 60 at 343. These provisions are not undermined by exception, they are simply ignored.

Q What happened to you when you were arrested? . ..

A They took me to Cassernes Dessiaines.

Q Were you then in prison from ’71 until 1977?

A Approximately, yes.

Q Were you ever released during these years?

A No. Q In any of the six years you were in prison in Haiti, were you ever taken before a judge?

A (No).

Q At any time during the six years, were you allowed to see an attorney?

A No. Patrick LeMoine, Tr. at 509-10.

Edward McKeon studied the Haitian judicial system while he was employed at the United States Embassy in that country. He stated that there was effectively no judicial system outside of Haiti’s major cities: Port-au-Prince, Cap Haitian, and Cayes. 81 Those persons who are swept up by the Tonton Macoutes, according to McKeon, are outside any judicial system. Dx 49 at 19.

Q The people who were arrested by the Macoutes for leaving Haiti, were they ever taken in front of a Judge?

A No. Q Are there any judges in Haiti in the countryside?

A No. Q Were these people provided access to attorneys?

A No. Anonymous # 1, Tr. at 423-24.

The absence of a judicial system extends to all persons accused of “political” crimes. In 1977, a law was promulgated providing, *502 for the first time, political prisoners with a trial before a State Security Tribunal. Although the establishment of the tribunal was greeted with some reservations, it was seen as a commendable step. See Px 345 at 4 (International Commission of Jurists, The Review No. 19 (Dec. 1977)). The step, however, was never taken. In February, 1980, the State Department reported that the tribunal had not yet convened. 82 Only one witness at trial reported seeing a judge, and he apparently misunderstood the role of the judiciary.

Q You said earlier that you thought that you remembered you had seen a Judge.

A Yes. There was a Judge, a person that investigates, that was conducting the investigation on me at that place where they took me where all of the big athletes were breaking men.

Q So the Judge or someone you thought was a Judge was asking questions in the room where you were being beaten?

A No. That man himself was the one giving the orders to the people to hit you. Jocelyn Marcelus, Tr. at 1253.

Crime in Haiti is loosely defined. Not only is it illegal to talk bad about the government, 83 but the criminal statutes are so broad and ambiguous as to encompass virtually any act (or thought). For example, the law “anti-Communiste” makes punishable by death “any declaration of belief in communism, verbal or written, public or private,” or the propagation of any “communist or anarchistic doctrines.” Px 339 at 275A; see Tr. at 1031. As recently as last October, a new press censorship law was enacted, creating “broad, vague categories of offenses,” Dx 60 at 345, and providing prison sentences for any journalist insulting the President. Dx 339 at 171.

A system of broadly defined crimes, unchecked by due process, results in an essentially lawless society. Guilt is a determination made exclusively by the person empowered to arrest. That person’s perception of what constitutes a crime, and what is necessary to commit it, controls. Arbitrariness is the rule. Guilt is often founded on association.

Q What reasons did they give you for your arrest?

A The first reason was that I was a friend of Ander Seraphin.

Q Do you know why your friendship with this person caused you to be arrested?

A Well, it is a common thing in Haiti, when a person is involved in something, that his friends are arrested.

Q What did they say that he was involved in?

A According to the accusation made by the government, he was the leader of a group.

Q To your knowledge, did any such group exist?

A ... positively, I would say no.

Patrick LeMoine, Tr. at 510.

The system of justice in Haiti allows the Duvalier Security Forces to be all powerful. It is their decision who should be punished, for what offense, and how the punishment should be carried out. They may act on orders, or on arbitrary whim. But their actions are conclusive. There is no law in Haiti, there is only the forces of Duvalier. I was laying down. It was nighttime.

I had finished saying my prayers at 7:00 o’clock, myself,⁷:301 was already in bed, because it was dark outside, and I didn’t have a flashlight.

And about approximately around⁷:301 heard a knock on the door. When my mother started to get up to open the door, they had already opened the door a long time ago. I saw four men appear in *503

front of me. They pulled out a piece of paper and asked me if I was Constant Louis. I said it was me, yes.

One of them took me by the right hand and flipped me as in judo; another one told me in ’62 I had attacked the President and I had killed a Macoutes; and in ’78 again I killed five people in the Bahamas, and I took $12,000 that my wife had. I couldn’t find an answer to that that will come to my lips to tell them.

I said wait a minute. One of them answered, are you insulting the man? One of them hit me in the face there, and another one hit me again on the other side.

I felt like I was on fire.

One hit me again. I lost five teeth. One of them, kicked me below my belt. I felt-I didn’t know anything else. I felt like my bottom half was going up to my heart.

When I regained consciousness, I found out my mother was screaming and she had a bucket of water and was wetting me.

Constant Louis, Tr. at 1198-99.

The absence of a legal system in Haiti has several implications. Crime is defined on an individual level: One man’s argument is another man’s treason. Accordingly, the Haitian legal system is institutionally incapable of protecting any person’s rights. The absence of a rule of law renders unenforceable claims that persons returned from the United States will not be harmed. Careful distinctions between those who might be persecuted on return and those who will not cannot be made. In the Haitian legal system, such assurances and such distinctions do not exist.

E. Haitian Politics: Suppression of the Opposition.

Politics may be. defined as the public discussion of ideas on a country’s government and future, the advocacy of one’s views. To “speak of politics in Haiti is therefore somewhat misleading: It presumes that there is public discussion, and that anyone other than Jean-Claude Duvalier might effect the country’s future. The contrary is true. The Duvaliers have systematically and thoroughly eliminated all dissent and opposition.

Two of the plaintiffs in this case are examples of that effort. Theodore Cadet was arrested and imprisoned in June of 1975 for his membership in “Le Ralliement Des Opposes.” 84 He came to the United States after escaping prison. Dx² at 323-37 (Administrative Record, Sworn Statement of Theodore Cadet). Prosper Bayard was arrested three times between 1962 and 1974, each time because he “was for a different party than Duvalier’s Party....” Dx² at 99 (Administrative Record, Sworn Statement of Prosper Bayard). In fact, his arrest in 1962 was for his vote in 1957, a story remarkably similar to that of Merilien Mezius, quoted above. Clearly there is a pattern of suppression.

The success of this pattern of activity is shown by the present status of Haitian politics. The State Department recently stated that, “Participation in the political process is severely restricted. Haiti is an authoritarian state and the President is chosen for life.” Dx 60 at 346.

Q Based on the two years that you spent in Haiti, what is your perception of the degree of political dissent that is allowed in that country?

A I’d say that there is not much political dissent allowed. . ..

... Many of my friends who were in groups that I would normally consider to be more politically aware expressed very strongly a desire to just keep away from anything political. So I don’t know that there was so much a lack of political opposition in terms of the government not permitting it, as it was a question of *504

people knowing that they'd just best not get involved.

Q Would the VSN be likely to play a role if somebody surfaced as a political opponent of the Duvalier regime?

A I would think they would be the most likely person to take control of the situation.

Q While you were there, was there ever an opposition political party to the Duvalier regime?

A I never sensed any political opposition to the Duvaliers while I was there. What opposition there was was very mild. It was just things that came out in the press, nothing serious.

Edward McKeon, Dx 49 at 28-29.

It is a measure of the political oppression in Haiti that independent political parties were not allowed to exist in Haiti until 1979. The appearance of those parties did not, however, signal any change in the basic nature of Haitian politics. The activities of parties were tightly controlled. Dx 60 at 346. Although legislative elections were held in February of 1979, they indicated more about the power of Duvalier and his forces than the will of the populace. Only one non-Duvalier candidate was elected, and he reportedly has been threatened and now requires bodyguards. Tr. at 139-40.

On January 1st, 1978, Jean-Claude Duvalier directed his speech to the nation. He said that he would hold legislative elections, a free election. But before that, the election was never free. They always proceeded by nomination.

After he made that statement on the air in his speech, many citizens in the Republic of Haiti decided to become candidates for the legislature.

For instance, there was Alexandre LeRouge in the north. There was Sylvio Claude in Mirebalais, as well as in Cayes we had Hughes B. Verrettes. Hughes B. Verrettes in Cayes is the President of the Soccer League in Cayes and he is also the President of an orchestra called Meridional. He is recognized in the population.

He felt that with the popularity he had behind him he could have access to the legislature.

When they decreed the election, there were many candidates that appeared, that I remember their names.

It was Anthony Milord, Hughes B. Verrettes, Willy Rameau, Willy Roland, Dieuveille Neptune, and Anthony Milord was the outgoing deputy. But among those five candidates, the most popular of them all was Hughes B. Verrettes.

A few weeks before the election the Government published a message through the Volunteers for National Security Barracks to the commander Gerard Valet, that he should give force and security to candidate Willy Roland secretly.

During the election, every time Willy Roland held a meeting they always sent the militia to go attend the meeting, and I myself used to go.

A week before the election, to the eyes of the people, everybody had already seen Hughes B. Verrettes as deputy. A week before the election, as I say, President Duvalier sent a message saying this is the person that will be deputy. That was Willy Roland. Secretly.

The election took place on Sunday, February the 11th. They closed the ballot box around²:00 in the afternoon, but all of the mass of the people that was for Hughes B. Verrettes, they already knew and they acknowledged the fact that their candidate was the deputy.

They started manifesting their joy in the streets. The local security police started putting pressure on them and they went home.

In Sunday evening they gave the results in all other parts of Haiti, but they didn’t give them for the town of Cayes. But us militians, a week prior to that, we already knew that Willy Roland was deputy.

Dx 58 at 83-85 (deposition of Anonymous #1).

The emergence of political parties, while on the surface a liberalization, ironically caused greater repression. It is undisputed that the leader of at least one of the parties was arrested, see Dx 60 at 341; Tr. at *505 1096-97. Silvio Claude, leader of the Christian Democratic Party, was arrested on August 28, 1979, along with members of his party including Edouard Franck, a witness at trial. Tr. at 1096-97. Since the time of his arrest, Claude has been imprisoned without formal charges or a trial. The State Department has deemed reports that Claude has been subjected to “severe beatings and torture by electric shock” plausible. Dx 60 at 341. Despite the concerted efforts of various international agencies, see Tr. at 1038, nothing is presently known about the whereabouts or condition of Mr. Claude. Evidence submitted at trial indicated that two other party leaders had been arrested. Tr. at 1037.

The absence of information available on Mr. Claude has several implications. First, it indicates that Haiti is essentially closed to information gathering from the outside world. Accordingly, it is quite difficult to determine at any time what is occurring there. Second, it is impossible to make effective inquiries regarding the treatment of individuals within or returned to Haiti. It would therefore be impossible to protect them.

One need not join a political party to be viewed as an opponent of Duvalier and potentially receive the same treatment as Silvio Claude. Indeed, one need do very little. Solives Romet testified that his paralytic grandfather and sick father were arrested and disappeared after they failed to attend a public celebration honoring Duvalier. To “talk bad” about the government is a crime.

Q Did they tell you anything at the time you were actually arrested?

A When they came, they said, “It is the club of traitors that are speaking badly of the government.

Q What were you doing at the time they arrested you?

A We were talking and things like that. We were in a group chatting.

Q Do you remember what you were talking about, the specific things you were talking about at the time you were arrested?

A (We were) saying that that man took power. Every since he took power, he didn’t do anything for the coúntry.

We were saying, well, look at it, people are sleeping in the streets. Look at all the money that he received as loans and he sends it to hideout in Switzerland. Jocelyn Marcelus, Tr. at 1238-42.

The declaration of political freedom which caused the rise of independent political parties was obviously hollow. There is no political freedom in Haiti, its absence self-perpetuating. A counterbalancing political force might have required Duvalier to provide the free elections he promised. But there is no such force, and as a result, from day to day Duvalier’s word-effectively, the law-may change. Duvalier declared an amnesty for political prisoners in Haiti in 1977, but as the quotes in this opinion and the defendants’ own evidence illustrate, that declaration was hollow. See Dx 60. In concluding that deported Haitians would not be mistreated on return, the defendants rely, in part, on the assurances by government officials that the returnees will not be harmed. Dx 20 at 2. That statement has the eerie sound of statements made before, statements proclaiming freedoms and liberalizations. Each such statement has proven to be an empty promise.

Duvalier’s assurance that returnees would not be mistreated had one exception. According to the State Department, those “who had been actively involved in political opposition might be subject to imprisonment or surveillance if they returned.” Dx 20 at 2. This is an exception which swallows the rule. The definition of “political opposition” in Haiti is potentially all inclusive. 85 One student of Haitian politics has commented that the opposition could be *506 defined as “the whole conscious population minus one citizen-the President.” Px 334 at 602 (quoting Remy Bastien).

F. Haitian Society: Suppression of Free Voices.

In a country where political opposition and dissent have been effectively outlawed, the repression inevitably turns to the vehicles by which such views are normally voiced. Free speech quite obviously has been curtailed, and the freedoms of press and assembly have likewise given way to the pressures of Duvalier’s rule.

The press was among the first institutions which Francois Duvalier sought to bring under his control upon seizing power. Within a year of the start of Duvalier’s presidency, “Haiti Miroire, Le Patrióte, Le Martin, and L’Independence; each for its own reasons out of tune with the regime, underwent midnight visitations or bombings that wrecked their plants.” Px 334 at 592 (R. Heinl & N. Heinl, Written in Blood: The Story of the Haitian People 1492-1971 (Boston 1978)). “The papers that were left were easily controlled by government subsidies (or lack thereof); by assignment of TTMs (Tonton Macoutes) to editorial positions; by access to electricity, newsprint, and labor; and by the force-feeding of boiler plate editorials and articles.” Id. at 602. The press was thus another victim of a familiar pattern: That which was not Duvalier’s was destroyed.

For a time it seemed that a liberalization would take place under Jean-Claude Duvalier. But each appearance of freedom has been cut short. In early 1978, the State Department reported that the news media had become more outspoken over a period of two years, only to have the Tonton Macoutes beat up the publisher of a paper which had accused the militia of abuses. Dx 34 at 175. In 1975, the State Department again noted improvement in press freedoms over the preceding year. Dx 43 at 275. This liberalization was also short-lived. In October of 1979, the government enacted a new press law. Dx 60 at 345. It legalized censorship, provided for prior review of publications, and made illegal a broad variety of statements. Id. at 345. The press is now prohibited from insulting the President, his mother, or other Haitian authorities. Px 339 at 171. Also included in the new law is the requirement that all journalists obtain an annual press card, to be issued by an apparently government controlled association. Dx 60 at 345. The obvious effect of this law is to destroy freedom of the press, and the Inter-American Press Association has stated that this would be the effect. Id. Although the law has not been implemented, it hangs as a threat over the Haitian press. Given the broad interpretation of other laws in Haiti, the effect of this one would be clear: To dissent is to invite a visit from the Macoutes. 86 This has, of course, happened in the past; the new statute is simply a reminder of how things work in Haiti.

... I recall there was one newspaper that sprang up-I don’t recall its name-that was going to print an article on human rights, I believe, and the editor was beaten several nights before the issue went to press and the issue never, in fact, came out.

The paper subsequently folded.

Dx 49 at 28 (deposition of Edward McKeon).

Warnings and reminders were also directed at another potential dissenting voice in 1979: The arts. A statute was enacted requiring prior approval of plays and films. Dx 60 at 275. Although the decree has not been “vigorously enforced,” id., it understandably need not be-the threat is enough.

The enactment of censorship laws could almost be seen as a liberalization, a touch of formality and due process when there had been only random brutality in the past. But the brutality continued to occur as *507 recently as November of 1979. Freedom of association is predictably restricted in Haiti. Organizations with membership larger than twenty may not exist without government approval. Dx 60 at 345. In November 1979, the Haitian Human Rights League called a meeting to inquire into the disappearance of Silvio Claude. Tr. at 1045. The League was characterized at trial as a “cautious and not outspoken” group. Tr. at 1044. The events which transpired at the meeting are best described by one who attended.

Q Have you ever attended any meetings of the Haitian Human Rights League?

A The last meeting I attended was in November 9, 1979.

Q Could you describe to us who-how many people were at that meeting and who they were, if you know?

A To tell the truth, I know very many Tonton Macoutes in Haiti. I saw from 200 to 250 of them in civilian clothes in this room.

Q Approximately how many people in total were in the room?

A 500 to 600 people.

Q Could you describe to us what happened at the meeting?

A Well, it was a meeting that had been announced over the radio and over the newspaper for eight months.

On that particular Friday, I was free at 5:00 o’clock ...

When I was free, I went home and then I went to assist. When I got there the speaker was going to start talking and I saw two Tonton Macoutes that told me, the military people are not Duvaliers. Look at the type of thing they are attending.

During that time, the speaker started to talk-

He was talking for about two minutes. The Tonton Macoutes had come along with a cassette recorder with a song say, “Go Get Them, Duvalier.” They put it behind the speakers.

Well, then, Gerard Gourgue (the President) said, the soldiers ,that came in assurance of peace, he was asking there be peace in the room.

At that time, a Tonton Macoutes whistled and everybody in the room started getting beaten.

When the Ambassador and the president entered the president’s place, they went in there and beat them up. They went inside of the priest’s place and beat them up.

Q I believe you referred to Ambassadors that were also beaten.

Do you know who the people were?

A I did not know their faces, but when their cars were coming in, they came in with their flags. There was one from Canada, France, America and Germany).

All these people were victims.

Daniel Voltaire, Tr. at 2006-09.

If those who try to inquire into the disappearance of a politician are beaten for their effort, then clearly there can be no group within Haiti capable of monitoring or protecting returnees. Moreover, the treatment of the League again demonstrates how little one need do to offend the Duvalier regime. If attending a meeting to inquire into human rights is a crime, then surely claiming asylum abroad because of human rights violations would be similarly treated.

G. Haitian Economics: The Economics of Repression.

The Duvalier family has maintained its rule by weakening its opposition. As the discussion above indicates, “opposition” is an all inclusive term, encompassing real, potential, and perhaps even imagined enemies. Consequently, the efforts to weaken others have been wide-ranging, even random. Haiti’s weak economy must be seen as part of this practice, its political implications understood.

Haiti is a country of dramatic poverty. It is one of the thirty poorest countries in *508 the world, Dx 33 at 3, and has the lowest per capita national income of any nation in the Western Hemisphere, Dx 56 at 12. The causes of this poverty are varied and complex. To be sure, Haiti has few exploitable resources, and the quantity of arable land per person is less than any other Western Hemisphere nation. Dx 33 at 5. But a recent Congressional Research Service Study-entitled “Impediments to Economic and Social Development in Haiti’-concluded that the natural causes of Haiti’s poverty could be overcome, were it not for sociological and political problems. Id. at 6. Those problems are the manifestations of oppression, their consequences the economics of Duvalier. The Congressional Research Service report identified five socio-political causes of Haitian poverty, and was substantiated in several respects by other evidence. Those five causes are as follows: Inadequate structure and planning of public administration; an absence of skilled professionals; an inadequate educational system; problems with aid from external sources; a disorganized and probably corrupt fiscal system. Each of these problems is demonstrably an outgrowth of Duvalier politics. See Dx 33.

It is safe to generalize that Haiti’s economy has been neglected while the Duvaliers concentrated their primary energies on maintaining power. Id. at 9; see Px 334 at 226-27. The emphasis on power above all else has had several more direct effects on the economy, however. First, there is a consensus that the reign of the Duvaliers caused a mass exodus of intellectuals and professionals from Haiti. Tr. at 15; Dx 33 at 13. While many of these persons may have left because they had supported other candidates, Tr. at 15, and therefore appropriately feared Duvalier, it is also true that Duvalier saw Haiti’s elite as his enemy. In part this animosity was racial: Duvalier was the black candidate in a country where the elite of society were largely mulatto. But it was also because the elite were perceived as the logical source of future opposition. To oppress the elite was to take yet another step toward assuring his power. Accordingly, noted members of the elite were visited with terror very soon after Francois Duvalier gained power. One author whose work is in evidence reports unprovoked beatings and savage, unexplained destructions of property. Px 334 at 602. These actions were not directed at revolutionaries or dissidents, but at historians and doctors, the very absence of rationale for the violence probably designed to stimulate fear among the elite.

The measure of the exodus was that, in 1976, 250,000 Haitians were in New York City alone, with large colonies in Montreal, Chicago and Washington. Robert Rotberg said that, by the mid-1960s, 80 percent of Haiti’s qualified professionals (doctors, lawyers, engineers, teachers, and public administrators) were in the United States, Canada or Africa. By the same year, 1963, over a thousand Haitian professionals were in the Congo. ... Of 70 schoolteachers trained by U.S. AID, none of whom Duvalier would hire, 38 went to the Congo-to fight illiteracy.... By 1963, over 300 Haitian professionals were working in Guinea.... Over 300 Haitian specialists-primarily doctors, teachers, public health nurses, engineers, and even judges-had been hired by or through the United Nations for jobs in the Congo, Dahomey, Guinea, Togo, Rwanda, and Burundi. With the lowest per capita income and literacy rate in the Western Hemisphere, Haiti nonetheless was contributing more technicians to the U.N. Technical Assistance Program than any other Latin American Nation.

... By 1970, there were more Haitian physicians in either Montreal or New York than Haiti. Montreal had ten times more Haitian psychiatrists than Port-auPrince. Of 246 medical school graduates from 1959 to 1969 from the University of Haiti, only three could be found in practice in the country in 1969. Some 50 public health nurses, trained by the United States, were all lost to Africa. The Organization of American States and the U.N. had more Haitian economists on their payrolls than the government of Haiti.

*509

One could go on but the point has been made.

Px 334 at 648-49.

The results of this exodus obviously permeate the crippled Haitian economy. It wholly explains the absence of professionals, which in turn helps explain the inadequacy of the educational system and the public administration. In a country desperately in need of education, medical care, and skilled workers in all fields, see Dx 33 at 12-14, those best able to provide that help have fled.

The pattern established by the Duvaliers of eliminating potential opposition affected the economy beyond forcing so many of the most able Haitians to flee. Virtually all decision-making in Haiti is concentrated at the highest levels. Dx 33 at 12 (quoting Organization of American States, Haiti: Mission d’Assistance Technique integree xi (Washington, D.C. 1972)). While this undoubtedly preserves Duvalier’s control and prevents establishment of centers of power elsewhere, it is terribly inefficient. Id. For similar reasons and with similar results, civil service agencies were placed in the hands of persons whose loyalty to Duvalier was their primary qualification. Dx 33 at 13 (quoting Agency for International Development, Development Assistance Program FY 1979: USAID Haiti 139 (1977)). As a result, the economy of Haiti suffered so that Duvalier could maintain power. The clearest problem in Haiti’s public administration is its fiscal system. The system is complex. Although there is a Ministry of Finance, it has influence over only 50 percent of public revenue. Dx 33 at 17. The uncontrolled 50 percent is unbudgeted and not subject to any form of accounting. Id. at 18-19. The result is disorganization, inefficiency, and charges of corruption. It is widely believed that substantial public funds in Haiti are used for personal, not public enrichment. Dx 33 at 19 (quoting various newspapers); Dx 43 (State Department Report for 1979); Dx 60 (State Department Report for 1980); Px 334 at 615-16. Although the Haitian government has announced its intention to account for all the money it receives, Dx 43 at 273-74, the plan has not yet been fully implemented. In early 1980, the State Department stated that, “Corruption is traditional at all levels of (Haitian) society, and significant amounts of domestic revenues continue to be diverted for personal enrichment.” Dx 60 at 344. Aside from draining the country’s already limited resources, this alleged corruption discourages foreign aid, an important portion of Haiti’s annual income. See Dx 33; Px 334 at 616-17. Of course, an equal discouragement of foreign aid has been the reputation of the Duvaliers for terrorizing their own citizens. See Dx 33 at 10; Px 334 at 623.

The purpose of this discussion has been to show the degree to which Haitian economics is a function of the political system. Much of Haiti’s poverty is a result of Duvalier’s efforts to maintain power. Indeed it could be said that Duvalier has made his country weak so that he could be strong. To broadly classify all of the class of plaintiffs as “economic refugees,” as has been repeatedly done, is therefore somewhat callous. Their economic situation is a political condition.

There are, of course, limits to the conclusions which may be drawn from the proposition. It would certainly be inappropriate to conclude that all poor Haitians are entitled to political asylum. Virtually the entire country could make such a claim. But against the background of this discussion, certain governmental actions (and therefore asylum claims) take on a political color. In 1963, for example, Solomon Jocelyn was the head of a farmers syndicate (labor union) at Plantation Dauphin outside of Fort Liberte, Haiti. Dx² at 25-27. The organization sought, among other things, to prevent members of the Tonton Macoutes from expropriating the lands of farmers.

I had written a petition to the Minister of Justice and also sent a copy to the President against the Prefect of the Macoutes that was taking away the land .. . from the farmers. The Prefect put me in jail and beat me up. I spent five months in jail (and) two months in the jail’s hos *510

pital. When I was released I did not have any security left in Haiti. By security I mean that they told me I couldn’t return to my home in Fort Liberte, Haiti. I had to spend different nights at different houses in different places.

Dx² at 6.

Without background evidence, this claim might be seen as a mere personal dispute between Jocelyn and a certain Macoute Prefect. Indeed, that is precisely the conclusion reached by the INS hearing officer who classified Jocelyn’s claim as “clearly lacking in substance.” Tr. at 2926-27. This is a remarkably shallow analysis.

Labor unions are another of the many institutions which Duvalier broke apart in his quest for total power. The reason for his action is obvious: A labor union exists to make individuals more powerful through group action. Duvalier could not tolerate such a concentration of power. Accordingly, in 1959, Francois Duvalier is reported to have said, “All popular movements will be repressed with utmost vigor. The repression will be total, inflexible, and inexorable.” Px 334 at 603. The process which ensued is now familiar: “One by one, unions were destroyed, driven underground, or simply taken over by Macoute leaders. By 1960, Haiti’s weak unions were paralyzed or moribund; by 1963, they were dead.” Id. Interestingly, it is precisely within this time span that Jocelyn’s arrest took place. As a leader of a union, he was undoubtedly identified as “opposition.” The complete suppression of organized labor continues to this day.

Organized labor accounts for less than one percent of the work force and the few unions have been permitted little freedom of action. The Labor Code gives considerable authority to the Ministry of Labor and Social Affairs in mediating disputes. Union-sanctioned strikes, but not wildcat strikes, are permitted. Since late 1977, there have been sporadic strikes and increased labor activity.

Dx 60 at 346.

There could be few persons more clearly the victim of “political persecution” than Solomon Jocelyn; 87 he was the subject of an organized system of oppression. Yet the activity for which he was sanctioned was essentially economic. His illustrates the cause of the disheveled Haitian economy, and the breadth of the political opposition. In rejecting Jocelyn’s claim, the INS demonstrated its failure to grasp the fundamental rules of Haitian politics and economics.

H. Conclusion.

The case is now well documented that the Haitians in this class deserved something more than they received from INS. Clearly their claims were more political than recognized, and the uniform rejection of their claims demonstrates a profound ignorance, if not an intentional disregard, of the conditions in Haiti. It is beyond dispute that some Haitians will be subjected to the brutal treatment and bloody prisons of Francois Duvalier upon their deportation. Until INS can definitely state which Haitians will be so treated and which will not, the brutality and bloodletting is its responsibility.

IV. FINDINGS OF FACT: INS TREATMENT OF HAITIAN ASYLUM CLAIMS

The INS established a Haitian Program during the Spring and Summer of 1978 for the purpose of disposing of a backlog of asylum claims filed by Haitian immigrants. The existence of the program, and its impact, are uncontroverted. All of the asylum claims were denied.

Plaintiff’s Exhibit 393 is a copy of INS records indicating, on a weekly basis, the disposition of deportation cases. On each weekly form, one line accounts for the disposition of asylum claims filed with the District Director. Perhaps the most revealing inference which can be drawn from those entries, reproduced in their entirety below, is that, on occasion, only the total number of dispositions was entered. The denial of all claims was understood.

*511

These numbers imply more than a coincidental uniformity. But results, in and of themselves, do not always signal unfair treatment. 88 Unfairness arises when such results are the intended result of prejudicial discriminatory actions, 89 and when the adjudication of claims violates due process. 90 That is precisely the case here. The Haitian asylum claims were prejudged as lacking any merit. Accordingly, they were reviewed with dispatch. An expedited process was set up for the sole purpose of expediting review of Haitian asylum applications, and expelling Haitians from the United States. By its very nature and intent, that process was prejudicial and discriminatory. In its particulars, the process violated the Haitians’ due process rights.

A. The Haitian Program: Intentional Discrimination