Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States

TABLE OF CONTENTSABSTRACT...191INTRODUCTION.....192I. DETENTION AND DETERRENCE OF ASYLUM-SEEKERS 193II. THE CONCEPTUAL CHALLENGE OF DETERRENCE 195III.THE UNITED STATES: MATTER OFD-J- AND R.I.L-R V. JOHNSON.......198IV.ISRAEL: ADAM AND EITAN 205CONCLUSION 209INTRODUCTIONInternational refugee law is built on a paradox. The premise of refugee law is that people fleeing persecution should be protected. But refugee law might not be necessary if sovereign States did not insist on tightly regulating migration. The very idea that people fleeing persecution deserve asylum exists in perpetual tension with the prevailing inclination to exclude foreigners. That is, if governments did not control entry-and thus exclude or deport those who enter without permission-there would be little need to formally define refugees as a class of people for whom an exception should be made.1 As Professor James C. Hathaway wrote, the principle that refugees should be protected even if they enter without authorization may be the "most important innovation" of modern refugee law.2 The clash between these impulses fuels many of the great controversies in international refugee law.Often, this clash is expressed through a struggle to maintain the distinction between refugees and other would-be immigrants.3 But in other contexts, this clash is expressed more bluntly, and paradoxically, through a government stating openly that it does not want refugees and asylum-seekers to come, even as it grudgingly concedes that genuine refugees who arrive should not be deported. This Article examines the efforts of two governments-those of the United States and Israel-that have recently adopted this position in response to an influx of unwanted asylum-seekers. Both governments adopted a policy of mass detention of people with strong asylum claims, explicitly for the purpose of deterring other asylum-seekers from coming. In both countries, the governments have attempted to strengthen their deterrence arguments by linking the influx of asylum-seekers to grave concerns for national security.My focus here will be on how the judiciaries have responded to these arguments. Israel and the United States are quite differently situated in some respects with regard to asylum-seekers. Although the numbers of arrivals have been comparable in gross scale, Israel is a considerably smaller country, which may enhance a sense of being overrun or besieged by migrants. Perhaps more importantly, the United States has one of the best-established asylum systems in the world. Israel, by contrast, has resisted efforts to grant durable rights to non-Jewish refugees and has not set up a reliable administrative apparatus to fairly process their claims.4 But in both countries, the arrival of large numbers of asylum-seekers triggered an alarmist response from leading politicians, who established draconian policies to detain many of them.5 And in both countries the judiciaries resisted mass-detention policies and treated the governments' deterrence justification with considerable skepticism.I begin in Part I, by outlining the importance of detention and deterrence in global refugee policy. Part II sets out in brief terms why deterrence poses a conceptual challenge to migrant rights. Part III discusses the way American courts have dealt with the government's recent invocation of deterrence to justify asylum-seeker detention. Part IV discusses two high profile Israeli High Court cases that have grappled with the analogous problem. I conclude by pointing to potential legal questions that may emerge after these cases. Readers should note that the discussion reflects case law at time of writing, in June 2015. My primary goal is to identify the fundamental legal dilemmas inherent in deterrent policies, rather than to provide an up-to-date synopsis of the state of the law.I. DETENTION AND DETERRENCE OF ASYLUM-SEEKERSDetention of migrants is a widespread challenge to human rights law because it is widely used by States and poses a conflict between the individual right to liberty and the sovereign right to control borders. …