As the Trump administration ships migrants to countries around the world, it is abandoning a longstanding U.S. policy of not sending people to places where they would be at risk of torture and other persecution.
The principle emerged in international human rights law after World War II and is also embedded in U.S. domestic law. It is called “non-refoulement,” derived from a French word for return.
The issue came into sharp relief in the past month as the Trump administration has tried to deport migrants with criminal records to Libya and South Sudan, countries considered so dangerous that they are on the State Department’s “do not travel” list.
“What the U.S. is doing runs afoul of the bedrock prohibition in U.S. and international law of non-refoulement,” said Robert K. Goldman, the faculty director of the War Crimes Research Office at American University’s law school.
In a recent affidavit, Secretary of State Marco Rubio described the Trump administration’s efforts to send migrants to those two countries as part of a diplomatic push to improve relations. He acknowledged that the Libyan capital, Tripoli, was wracked by violence and instability.
To critics of the administration, the sworn statement shows that the United States is no longer considering whether a deportee is more likely than not to be at risk of abuse through repatriation or transfer to a third country.
State Department employees were also recently told to stop noting in annual human rights reports whether a nation had violated its obligations not to send anyone “to a country where they would face torture or persecution.”
The State Department said in a statement that it dropped that requirement to focus the reports on “human rights issues themselves rather than a laundry list of politically biased demands and assertions.”
“Enforcing U.S. immigration law, including removing those without a legal basis to remain in the United States, is critical to upholding the rule of law and protecting Americans,” the statement said.
A judge blocked the transfer of migrants to South Sudan, which is teetering on the brink of civil war, and the men were being held at a U.S. military outpost in Djibouti pending more court action.
The Trump administration is also in a showdown in another court over its transfer of Venezuelan deportees described as dangerous gang members to a notorious prison in El Salvador without due process.
“If they were sending them to Sweden, that would be a different thing than sending them to South Sudan, which is one of the most dangerous places on the planet,” said Michael H. Posner, the director of the Center for Business and Human Rights at New York University’s Stern School of Business.
Mr. Posner, who was the assistant secretary of state for democracy, human rights and labor from 2009 to 2013, said the United States could send someone from Cuba or Venezuela to another country if it had been determined at a hearing that the place was safe. “We should not be deporting people to third countries where they have no connections and where their lives will be in serious jeopardy,” he said.
The White House likens its crackdown on illegal migration to combating a national security threat from a hostile enemy. It has pressed military troops into service at the southwestern border and at a small detention operation for migrants at Guantánamo Bay.
But even after the Sept. 11 terrorist attacks, the United States abided by its non-refoulement obligation for prisoners it was holding at Guantánamo Bay, during a period when it flouted international law by torturing other detainees in secret overseas prisons called black sites.
In 2004, Secretary of State Colin Powell concluded that the United States would not repatriate Chinese citizens from the Uyghur Muslim minority who had been rounded up in the war against terrorism in 2001 and held at the military base at Guantánamo. The United States believed that the men would be at risk if they were sent to China.
Eventually, in 2013, the State Department found other countries to take in all of the Uyghurs.
In the past, State Department officials have essentially asked two questions to determine where a detainee could be sent: Would the destination be safe for the individual? Would the United States and its allies be safe if the person was sent there?
U.S. officials had to assess whether the receiving country could monitor the activities of the detainees to prevent them from endangering the United States or an ally. Officials were also required to assess whether a deportee would be subjected to torture or other inhumane treatment.
The United States adopted the same approach to its efforts to send home Islamic State members or their relatives who were being housed in camps in northern Syria.
“Consistent with both longstanding policy and its legal obligations, the U.S. government cannot send people to a country where there are substantial grounds to believe that they will be mistreated,” said Ian Moss, a lawyer and a former senior counterterrorism official at the State Department.
In his affidavit, Mr. Rubio accused the courts that were reviewing deportation challenges of undermining U.S. foreign policy. He also said that plans to announce “expanded activities of a U.S. energy company in Libya” had been postponed.
Mr. Rubio did not mention whether any diplomatic agreements surrounding the proposed resettlement included guarantees about how the migrants would be treated.
“If these individuals are as dangerous as the administration represents them to be,” Mr. Moss said, “sending them to a conflict area or country where there is a lack of capacity to manage them undermines the national security justification.” Mr. Moss said.
The State Department statement referred questions about “the removals process, including screening for credible or reasonable fear,” to the Homeland Security Department.
The eight men who were to be sent to South Sudan were at a holding site in Texas when they were informed of their destination. An immigration division official, Garrett J. Ripa, said in a sworn statement on May 23 that none of the men declared himself afraid to go.
Court records showed that an immigration officer gave the men a form that listed their intended place of deportation. None signed the document.
“By not signing, people are protesting being sent to a third country in the only way they know how,” said Trina Realmuto, a lawyer for the migrants in the case.
Administration officials had previously planned to deport one of the men to Libya, which has been so unstable that Congress has since 2015 not allowed detainees who are cleared for release from Guantánamo Bay to be sent there.
Carol Rosenberg reports on the wartime prison and court at Guantánamo Bay. She has been covering the topic since the first detainees were brought to the U.S. base in 2002.
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