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Men Without a Country
by James Ottavio Castagnera,
October 22, 2004
A 19th-century writer, Edward Everett Hale, once
published a story called “The Man without a
Country.” The protagonist is Philip Nolan, a young
U.S. Army officer who unwisely deserted to join the
ill-fated effort of Aaron Burr to establish an independent
empire west of the Mississippi. In Hale’s yarn,
during his court martial for treason Nolan shouts,
“Damn the United States! I wish I may never hear of
the United States again!” The shocked presiding
judge obliges, handing down the following sentence on
September 23, 1807: “Prisoner, hear the sentence of
the Court! The Court decides, subject to the approval of
the President, that you never hear the name of the United
States again.” And for the next half century Nolan
lives out his life on board one U.S. Navy ship or
another, never permitted to read an American newspaper or
see his native soil — the man without a country.
Two hundred years later, life is emulating art. Last week
the U.S. Supreme Court heard the appeal of Daniel
Benitez, a 45-year-old Cuban immigrant, who has been held
in federal custody since 2001. Benitez, a Cuban national,
was among the thousands of “Mariel boat people”
who sailed from that Cuban port in 1980, when Fidel
Castro temporarily opened his island fiefdom to
emigration.
Granted an immigration parole shortly after landing on a
South Florida beach, Benitez was convicted of
second-degree grand theft in 1983. When he was released from
prison he applied for permanent residence in the United
States. The Immigration and Naturalization Service denied
his application on grounds of moral turpitude, citing the
1983 conviction. Benitez remained in migrant limbo until
1993, when he pled guilty in another Florida courtroom to
a laundry list of felonies, including armed burglary and
illegal possession of a firearm. The plea brought a
20-year sentence down on him.
This time around the INS ruled that continuation of
Benitez’s immigration parole was “against the
public interest.” And so the agency revoked it. In
2001 he was released into federal custody. The
agency’s Cuban Review Panel at first found him
releasable, when a suitable halfway house could sponsor
him. But in 2003, the U.S. Citizenship and Immigration
Service, a successor to the INS under the Department of
Homeland Security, revoked the Notice of Releaseability,
on the basis of an allegation of a planned escape from
jail. USCIS reached this decision without a hearing.
Bottom line: Benitez is an inadmissible alien so far as
the United States is concerned.
Now here’s the catch: although Benitez is a
native Cuban and still technically a Cuban citizen, Cuba,
like Uncle Sam, wants no part of him. The Cuban
government will not take him back. He is, quite
literally, a man without a country.
Daniel Benitez is not the only immigrant enduring
indefinite U.S. incarceration. The immigrant-advocacy
group Human Rights First estimates that more than 2,000
“Philip Nolans” from around the world are in
the same spot. And the federal courts are divided about
how all these cases should be handled. Consequently, the
Supreme Court consolidated two such cases from federal
courts of appeals into Benitez v. Wallis. In
an amicus curiae brief, Human Rights First, Amnesty
International, and Human Rights Watch wrote,
No misuse of government power is more clearly established
as a violation of international law than the practice of
prolonged arbitrary detention. The right not to be
unjustly detained, so central to our concept of ordered
liberty, is articulated in the earliest documents on
personal liberty as well as in the declarations,
covenants, treaties, and constitutions that embody modern
international law and the laws of free states. Indeed,
the right is universally recognized among the democratic
nations and among the international bodies that represent
the nations of the world.
Nobody is suggesting that Daniel Benitez is a martyr or a
saint. Like Hale’s Philip Nolan, he is a criminal
whose ill-considered words and deeds made him deserving
of punishment. But once having paid his debt to our
society, should he languish in prison for another 20 or
30 years — at our expense, fellow taxpayers —
because neither America nor Cuba wants him walking the
streets?
In the overcrowded, underdeveloped world in which most
members of our species struggle to survive, America
remains what Thomas Jefferson called our country — the last, best hope of the world. Since 9/11, we
are much more reluctant to play that role. But it’s
one which we should not avoid. Benitez v.
Wallis well may be a litmus test of how history
will remember us. Will ours be the era in which
America’s dedication to liberty, due process, and
the rule of law were relegated to history’s dustbin
for the sake of an illusory sense of security?
I hope not.
James Castagnera, a Philadelphia lawyer and writer, is
the associate provost at Rider University and president
of the Pinnacle Employment Law Institute. Send him email.
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