President Bill Clinton’s embrace of a policy that candidate Clinton had unambiguously denounced is immoral and "illegal" is a discouraging sign for those of us who have looked to him to restore executive-branch respect for the rule of law.

Last July 29, Clinton said: "The [U.S.] Court of Appeals [for the 2nd Circuit] made the right decision [today] in overturning the Bush administration’s cruel policy of returning Haitian refugees to a brutal dictatorship without an asylum hearing."

But on March 2, President Clinton sent a Justice Department lawyer to the Supreme Court to urge reversal of the 2nd Circuit and to bless his perpetuation of the Bush policy, which critics have aptly dubbed a "floating Berlin Wall."

President Clinton, like President George Bush before him, is blocking Haitians from fleeing their island prison for the United States or anywhere else, by seizing them on the high seas and forcibly returning them to their persecutors, without even a cursory hearing for those seeking refuge from political terror.

Here’s how the president explained this flip-flop, on March 2: "I mean, you know, something that was never brought up before , but is now painfully apparent, is that if we did what the plaintiffs in the court case want, we would be consigning a very large number of Haitians, in all probability, to some sort of death warrant." Many would swamp and drown after setting sail in rickety boats, he suggested.

President Clinton’s claim that the danger of drownings "was never brought up before" is simply false; the Bush administration had proclaimed that danger since the May 24 executive order that created the floating Berlin Wall.

Moreover, the president has ample means at his disposal to prevent mass drownings without sending Haitian boat people back into the jaws of persecution-and even without admitting large numbers of them into the United States.

Bill Clinton’s flip-flop was no mere abandonment of a casual campaign promise; it was an explicit adoption of a policy that the president himself had said was illegal. Now the Supreme Court is told by the president’s counsel that even if it agrees with candidate Clinton’s view, it has no power to order President Clinton either to obey the immigration law or to honor the nation’s treaty obligations.

The facts admit of only three possible interpretations:

(1) Bill Clinton’s flip-flop is (as he claims) justifiable response to changed circumstances, in particular a vast increase in the number of desperate Haitians preparing to embark on the perilous 700-mile sail to Florida.

(2) He never really believed what he said last May 27, when he pronounced himself "appalled" by Bush’s "callous response to a terrible human tragedy," and said that he would give Haitian refugees "temporary asylum until we restored the elected government of Haiti." Ditto for Clinton’s July 29 statement calling the Bush policy illegal.

(3) He was right last year, and his reversal represents a lawless and craven capitulation to political pressure from Floridians fearful of a mass influx of poor Haitian refugees.

The correct answer is, alas, No. 3.

President Clinton’s "changed circumstances" rationale is bogus. He has not claimed-because it would be a transparent lie-that either the relevant immigration statute or the reign of terror by murderous thugs in Haiti has changed.

It’s true that a big spurt in the number of boat people-prompted by Clinton’s own campaign statements-was expected to occur when Clinton took office in January. But estimates of a mass exodus of 150,000 Haitians were wildly exaggerated. There is no reason to believe that refugee flow under President Clinton would have been much greater than the 34,000 who set sail during the eight months between the bloody coup that ousted Haiti’s first elected president, Jean-Bertrand Aristide, in September 1991, and George Bush’s May 1992 creation of the floating Berlin Wall.

President Clinton cannot plausibly claim that he knows better than the boat people whether the risks they face at sea are greater than the risks of imprisonment, torture, and death in Haiti. As Deputy National Security Adviser Samuel Berger admitted on March 2, "People are prepared to take these horrible risks obviously because their lives are worse if they don’t take these risks." These are the people who are being taken into custody on U.S. vessels and forcibly returned-in some cases being driven ashore with fire hoses.

Nor can the president deny the assertion of the American Jewish Congress, in an amicus brief, that "never before has this country,… adopted a systematic policy of direct return to the country of origin without even elementary screening to identify those who are in genuine danger."

Nor can he deny the observation by Professor Harold Hongju Koh of Yale Law School, representing Haitian refugees in the Supreme Court, that the new Clinton legal position theoretically would allow him to order U.S. forces to get rid of boat people by drowning or shooting them.

President Clinton’s view of the law clashes with that of three recent Democratic attorneys general-Nicholas Katzenbach, Griffin Bell, and Benjamin Civiletti. In their amicus brief, they asserted that the relevant statute "unambiguously forbids executive officials from intercepting aliens on the high seas and returning them to another country without first determining that those aliens would not be returned to conditions of persecution." Former Secretary of State Cyrus Vance took, the same position in another brief, as has a host of human-rights groups.

The legal case hinges on §243(h) of the Immigration and Nationality Act. It 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.

President Clinton has now adopted the strained Bush argument that this clear command is implicitly limited to aliens who have reached U.S. shores and that the president can do as he pleases with those grabbed at sea.

This view is refuted not only by the statute’s plain language, but by its history. In the Refugee Act of 1980, Congress amended §243(h) by deleting the words "within the United States" from the earlier version, while substituting broad new mandatory language ("the Attorney General shall not deport or return any alien….") (emphasis added) for the old permissive language ("the Attorney General is authorized to withhold deportation of any alien within the United States."). Thus, it is now clear that the law is intended to protect aliens outside the United States.

As Judge Jon Newman said in an opinion concurring in the 2-1 2nd Circuit decision, 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 when it acceded to the United Nations Protocol Relating to the Status of Refugees in 1968. The Justice Department held in 1981 that the treaty requires asylum hearings for Haitians intercepted at sea.

When that view became inconvenient, the Bush administration ditched it. And now President Clinton, following suit, has implicitly adopted the morally untenable doctrine that even the deliberate return of refugees to face genocide in death camps would be perfectly legal.

The revised Clinton legal position would be more plausible if his floating Berlin Wall really were the only way to prevent thousands of Haitians from drowning at sea. But it is not.

Rather, it is well within the capability of the U.S. forces now ringing Haiti to pick up all the Haitian boat people and take them to the U.S. naval base at Guantanamo Bay, Cuba, for asylum screening. There is room to provide temporary safe havens, at Guantanamo and in other nearby countries (which would be amenable to determined U.S. pressure to help).

And if diplomatic efforts to end the terror in Haiti remain stalled for so long, that the safe havens fill to overflowing, the president has two other options: let some of the refugees into the United States or seek multilateral authority to send in the Marines to restore the elected Aristide government. That would end the refugee crisis once and for all.