How desperate must people be to leave their homes and families, crowd into rickety boats, and brave death at sea in the forlorn hope of drifting hundreds of miles to foreign shores, where prison camps await them? Are they driven by poverty? Or by persecution?

President Bush doesn’t want to know. He just wants to send Haitian boat people back to whatever fate awaits them, no questions asked. And so, it seems, do most of the rest of us.

The Bush policy, aptly termed a "floating Berlin Wall" by critics, is to intercept all Haitian boat people on the high seas and return them promptly to their island prison-perhaps to be murdered by their persecutors-without pausing for even a perfunctory hearing of their claims to political asylum.

Announced on May 23, this policy was found illegal by the U.S. Court of Appeals for the 2nd Circuit on July 29 but remains in force by virtue of a 7-2 Supreme Court vote to issue a stay while weighing the administration’s appeal.

Illegal or not, the naked inhumanity of the Bush policy goes largely undenounced, even by Democrats. It rates only perfunctory press attention and far less public outcry than, say, the plot to move the Washington Redskins to Virginia. Most voters in South Florida want to keep the Haitians out. The rest of us would rather not think about them.

Why are we so callous?

A confession: When I force myself to focus on the boat people, my first impulse is to let them in-all of them. But then irresolution creeps in.

The first impulse is that the entire distinction between political refugees and economic migrants, which has been used for years to fence out most Haitian boat people, seems obscenely legalistic in the face of their desperate flight. The Bush administration’s relentless tightening of the screws, and the fact that these unwelcome refugees all happen to be black, only makes an ugly situation worse.

Then I start worrying about what we would do with thousands of uneducated Haitians once they got here. And I think about all the poor Mexicans who keep coming, and the Central Americans, and the Cambodians, and others from all over this teeming globe. Then there are the starving Somalians, dying in droves but too distant to set sail for Florida.

Such thoughts can overwhelm compassion with fear-the fear that this no-longer-confident land’s fragile prosperity will in the long run be engulfed by the encroaching misery of the Third World. It’s akin to the fear that motivates suburbs to fence out low-income housing and deters us from opening our homes to the homeless. Maybe new generations of immigrants, like their predecessors, will prosper and enrich us all. Maybe not. Nobody knows for sure, but the nagging fear remains. Will Los Angeles become more and more like Mexico City, New York more and more like Calcutta, South Florida more and more like Haiti?

Our immigration-control system has long been built on such fears. It amounts to a coldhearted repudiation of the invitation held out by the Statue of Liberty. We don’t want your tired, your poor, your huddled masses; we’ll take your scientists, your computer nerds, your ballet stars, your entrepreneurs.

But the law has set some limits to our coldheartedness, at least until now. Chief among these is the time-honored tradition of asylum for refugees from persecution, which lies at the core of what this nation of refugees stands for, if it stands for anything.

This tradition embodies a mix of compassion-people fleeing persecution are often more severely and imminently at risk than those fleeing poverty-and pragmatic calculation. The calculation is that-in many cases-refugees can be sheltered with relatively little strain because they tend to be less numerous, less poor, and better educated than other would-be immigrants.

While the Haitian boat people are numerous, poor, and uneducated, there is overwhelming evidence that thousands do qualify as refugees from persecution.

Political violence in Haiti became rampant in the wake of the bloody September 1991 coup that overthrew the elected government of Jean-Bertrand Aristide. Hundreds have been killed and tortured, and thousands are in hiding. The exodus of boat people soared between the coup and the May 23 Bush order, with the Coast Guard intercepting 34,000 people in eight months, compared with 25,000 over the previous decade. Some 30 percent of the boat people who were interviewed by U.S. immigration officials-a skeptical audience-were found preliminarily to have credible fears of persecution.

Against this background, the "floating Berlin Wall" erected by Bush around Haiti compounds heartlessness with unconscionable lawlessness.

So did the earlier Bush policy of holding thousands of Haitians with credible asylum claims incommunicado from their pro bono lawyers, in a prison camp at the U.S. Naval Base at Guantánamo Bay, Cuba. When that policy was challenged by the lawyers, the Justice Department brazenly sought to intimidate them by seeking sanctions for "frivolous" litigation. Frivolous indeed: Both U.S. District Judge Sterling Johnson Jr., a Bush appointee, and the 2nd Circuit (on June 10) held it illegal for the government to reject these Haitians’ asylum claims and send them back with no access to their lawyers.

The evidence shows not only that these policies have blocked Haitian refugees’ sole means of escape-to the United States or anywhere else-but also that "specific plaintiffs who had been returned have since been abused, were tortured, and were hiding in fear of their lives," in the 2nd Circuit’s words.

Solicitor General Kenneth Starr gives a passel of reasons why the Bush policies are legal or, at least, why courts must defer to the president’s powers to exclude aliens.

The lawyers for the Haitians, led by Yale Law School Professor Harold Koh, have a simple reason why the Bush policy is illegal: Section 243(h) of the Immigration and Naturalization Act, as amended by the Refugee Act of 1980, says that "the Attorney General shall not deport or return any alien… to a country if the Attorney General determines that such alien’s life or freedom would be threatened" by persecution.

A 2nd Circuit panel held by a 2-1 vote on July 29 that "Congress meant what it said" and the government cannot circumvent the statutory command by blinding itself to evidence of persecution. As Judge Jon Newman wrote in a concurrence, the statute "forbids our country from laying hands on an alien anywhere in the world and forcibly returning him to a country in which he faces persecution."

This interpretation is bolstered by the international-law ban against returning refugees to their persecutors, to which the United States subscribed by acceding to the U.N. Protocol Relating to the Status of Refugees in 1968. The Justice Department held from 1981 until last December that this amounted to a binding treaty obligation to give Haitians intercepted at sea "an opportunity to substantiate their claims" to asylum.

When that view became inconvenient, Justice reversed it. Now the department argues that the U.N. protocol and the statute show an intent to confer rights only on aliens who have reached U.S. shores; the president can do as he pleases with those grabbed at sea.

This argument, based on the structure of the statute and the history of the protocol, was upheld by the 11th Circuit in another Haitian case earlier this year. But it points toward a morally untenable conclusion: Under the law according to Bush and Starr, even the deliberate return of refugees to face genocide in death camps would be perfectly legal.

On the facts, the administration says its policies are necessary to avert "another massive upsurge" of boat people that would lead to "certain loss of life" at sea. In effect, it argues that Haitians desperate enough to try escaping by sea should be deprived of that chance because they don’t know what’s best for them-nor do their lawyers, nor the U.N. High Commissioner for Refugees, nor all the international human-rights groups that have joined in attacking the Bush policy as illegal and inhumane.

We know what’s best for them, says the administration: They should just stay put, in a nation that, according to the same administration, is run by a junta of murderous thugs. If Haitians insist on seeking asylum, the argument goes, they should apply at the U.S. Embassy; never mind that this would entail running a life-threatening gantlet of security officers.

The administration boasts that its policy has been effective, because the exodus of boat people has largely stopped since the president announced that he would just send them back. True enough. The Berlin Wall was pretty effective at stopping the exodus of East Germans, too.