Tuesday, August 24, 2004
Ninth Circuit Will Review Panel Ruling on Extradition of Indian Man
By a MetNews Staff Writer
An en banc panel of the Ninth U.S. Circuit Court of Appeals will review the March decision of a three-judge panel that a person accused of killing a civilian bystander in the course of anti-government activity cannot claim the benefit of the “political offense” exception under an extradition treaty, the court’s chief judge said yesterday.
Chief Judge Mary M. Schroeder, in a brief order, said that a majority of the active, unrecused Ninth Circuit judges had voted to rehear the case.
“In nations where democratic institutions and the ballot box provide a peaceful means for evolutionary change, it is unacceptable to circumvent the system and to pursue political or other goals by unlawfully raining down violence on a society and its citizens,” Judge Stephen Trott wrote for the panel in March. Such violence, the judges said, cannot be held “incidental” to efforts for political change and thus cannot fit within the exception.
The panel ruling affirmed a 2002 decision by U.S. District Judge Oliver Wanger of the Eastern District of California that the government may extradite Kulvir Singh Barapind to India to face charges related to clashes between government forces and Sikh separatists in the 1980s and early 1990s.
Barapind, according to testimony, was at one time a popular leader of a Sikh student movement in the state of Punjab. One of the charges is that he was one of a group of men who invaded a residence shared by several Sikhs who had allegedly collaborated with the government and shot dead the wife of one of them.
The violence escalated dramatically following the “Golden Temple Massacre” of June 1984.
The government launched an all-out attack on rebels who had taken refuge in the Golden Temple, the Sikhs’ holiest shrine. The temple was badly damaged, at least 500 people were killed, and many civilians were caught in the crossfire.
The assassination of Prime Minister Indira Gandhi by two Sikh bodyguards the following October was said to be an act of revenge for what happened at the temple. In the next 10 years, between 30,000 and 100,000 people are estimated to have been killed in related violence.
Barapind was a college student in Punjab and a Sikh activist accused of having been involved in a series of violent activities in 1991 and 1992. An Indian magistrate issued warrants for his arrest in connection with 11 alleged incidents of murder, attempted murder and robbery.
Barapind arrived in the United States in 1993, traveling under a passport bearing another name. He was detained by the INS and later asked for asylum.
He was in detention in Bakersfield when the Indian government asked for his extradition pursuant to the 1931 extradition treaty between the United States and Great Britain, which was made applicable to India in 1942 and continues to govern offenses committed before the U.S.-India extradition treaty was entered into in 1997.
The Board of Immigration Appeals ruled over Barapind’s objection that his asylum application would be held in abeyance until the extradition proceedings were completed, a ruling that the Ninth Circuit upheld.
After six days of hearings, Wanger ruled that five of the incidents fell within the treaty’s exception for political offenses. Such offenses are not defined in the treaty but have been defined in past federal cases to be crimes “committed in furtherance of a political uprising, movement or rebellion” in the country where the crimes allegedly occurred.
As for the other six incidents, Wanger ruled that evidence pertaining to three of them had been discredited by a showing that it had been obtained by torture, coercion, or extrajudicial detention. But he found Barapind to be deportable with regard to the other three incidents, including the murder of Kulwant Kaur.
According to affidavits submitted by Indian authorities, Kaur and her husband were in the home of his extended family when Barapind and three other men entered. Barapind, the witnesses said, shot and killed Kaur’s brothers-in-law before the other men searched the house and found and killed Kaur and her husband.
While Kaur’s husband may have been a collaborator, the judge ruled, there was no evidence that she had any connection to the dispute between the separatists and the government.
The exception, Wanger wrote, is “inapplicable to shield the knowing effort to kill or injure unarmed, uninvolved, innocent civilians who are non-combatants in the struggle.”
Wanger found Barapind extraditable and remanded him to custody pending a final decision by the State Department, which has the last word in all foreign extradition cases.
In upholding that ruling, the three-judge panel rejected Barapind’s argument that the Kaur murder should be deemed political, and that the case against him is so tainted by police misconduct he should not be extradited on any of the charges.
The latter argument fails, Trott explained, because the treaty incorporates the rule of specialty. Under that doctrine, if the country from which extradition is requested agrees to return the accused to face some but not all of the charges, the requesting country must agree to try the defendant only for the offenses specified.
It is up to the executive branch, not the judiciary, to enforce the rule, Trott said.
With regard to the Kaur murder, Trott rejected dicta in an earlier Ninth Circuit opinion suggesting that crimes against innocent persons could, at least in some cases, be classified as political offenses if committed with a political objective.
The suggestion that tactics are “simply irrelevant,” Trott insisted, was wrong. “This overindulgent approach indiscriminately and unwisely delegates to the Timothy McVeighs, the John Wilkes Booths, and the Mohammed Attas of the world the final legal decision as to what conduct is cognizable under the ‘incidental to’ test pursuant to treaties recognizing the political offense exception,” the judge wrote.
Trott’s opinion was joined by Ninth Circuit Senior Judge Jerome Farris and visiting Senior Judge Charles R. Weiner of the Eastern District of Pennsylvania.
The case is Barapind v. Enomoto, 02-16944.
Copyright 2004, Metropolitan News Company