01/27/2012 06:05 EST | Updated 03/28/2012 05:12 EDT

Why We Need to Reform Deportation Rules for Bad-Doers

Leon Mugesera and Abu Qatada have lived oddly similar lives. Both men are from troubled countries: Mugesera is Rwandan; Qatada is Palestinian-Jordanian. Both are refugees; Mugesera arrived in Canada in 1992, while Qatada immigrated to the United Kingdom a year later. Both are accused of major crimes: Mugesera is alleged to have incited genocide; Qatada has been convicted in absentia of conspiracy to commit terrorism. Both have been subject to deportation attempts; while Mugesera was deported from Canada on Tuesday, Qatada won an appeal of his deportation last week.

And both are emblematic of troubled Western immigration systems.

Mugesera was deported after more than 16 years of legal proceedings. During this time, various Canadian courts ruled in different ways about whether Mugesera could be deported, with the cases bizarrely turning on competing interpretations of the "context" in which Mugesera spoke of the Tutsi minority in Rwanda as "cockroaches" to be eradicated.

Finally, in a 2005 decision, the Supreme Court of Canada made the altogether sensible determination that Mugesera was both ineligible for entry to Canada and fit to be tried for crimes against humanity. The government seemed to have won the right to deport Mugesera.

But it didn't happen. At the time, Rwanda had the death penalty, and Canada (quite rightly) does not deport people to face execution. Then, between 2007 and 2012, Mugesera and his lawyers ran the full gamut of additional and extrajudicial appeals, arguing to government officials and judges alike that Mugesera faced possible torture or other brutality in Rwanda. These arguments were rejected by multiple courts, but they bought Mugesera five more years in Canada.

Meanwhile, Qatada, a radical Islamic cleric based in London, has been fighting deportation for six years. As with Mugesera, his past speeches are quite well-documented, and they call for acts including the killing of apostates, the use of suicide attacks, and the waging of jihad. After 9/11, Qatada began to attract more attention from media and police. He was detained for a time, and then released without charge. Then the deportation hearings began. As noted above, he also has an outstanding conviction in Jordan.

He too has exhausted his options for appealing his deportation -- and on the last one, his last chance, he has been successful. The European Court of Human Rights ruled that Jordan's well-established use of torture put Qatada at risk -- not of being tortured (the court accepted that the UK government had obtained diplomatic guarantees that he would not), but of being tried on the basis of evidence collected using torture.

To be clear, it's perfectly reasonable to refuse to send someone to a place where they will be acquitted or convicted on the basis of unreliable evidence and inhumane treatment. Western liberal democracies should allow refugees to appeal their deportation, and countries that believe capital punishment is wrong shouldn't send people to face the death penalty, and nobody should face justice in an environment of torture. There's nothing wrong with these policies -- they help prevent miscarriages of justice and they protect human decency and human rights.

Still, the two cases bring to light reforms that could and should be made. The deportation process should be streamlined so that decisive factors such as risk of torture are established earlier, before large amounts of time and money are spent on legal hearings. If and when the highest court in the land rules in favour of deportation, individuals should only be allowed at most one subsequent final appeal to the government.

Most important, if we're going to take the position that our governments are responsible for the future fates of all those who enter our countries, we should make very sure that we know who we're letting in. It's good and mutually beneficial that Western countries accept refugees. But once someone crosses our borders, we do and should have certain responsibilities for their well-being. What's truly unfortunate is that the proceedings against Mugesera and Qatada were only prompted by tragic events: the Rwandan genocide and 9/11. Western immigration systems should be more forward-looking; those who support atrocities should not be admitted, even if the violence has not yet taken place. They should consider what a person's past tells us about who they are, and whether they deserve to be admitted, even for the time it takes to deport them.