Torture Logic

A former law clerk of U.S. Supreme Court nominee Samuel Alito has been touting his opinion in Fatin v. INS, 112 F.3d 1233, as an example of Alito’s progressive stance toward women. In Fatin, Alito held that Iranian women who had deeply held objections to Muslim customs about women, such as being required to wear a veil in public, could qualify for political asylum in the United States.

Buried in the opinion, Alito made an observation that could haunt the administration that has nominated him. He wrote, “In considering whether the petitioner established that this option would constitute persecution, we will assume for the sake of argument that the concept of persecution is broad enough to include governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individual’s deepest beliefs. An example of such conduct might be requiring a person to renounce his or her religious beliefs or to desecrate an object of religious importance. Such conduct might be regarded as a form of ‘torture’ and thus as falling within the Board’s description of persecution in Acosta.?

This could make for some interesting discussion at Alito’s confirmation hearing, given the Bush administration’s insistence that while abuse may have occurred in America’s detention facilities, there has been no torture.

Oh, and the Fatin opinion is not really such a “progressive? ruling. In the end, Alito refused to grant asylum because the woman, although she may have found the veil “objectionable? or “offensive,? did not find it so abhorrent that she would refuse to wear it on pain of imprisonment and public whipping.

Scott Graham

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