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N
E W S October
26, 2003: California, USA continuation
from Harpal
Singh had friendships and acquaintances with many key players in the Khalistan
movement which were in place long before any of them became politically
involved following the 1984 attack on Darbar Sahib. With their long-standing
trust for him, Harpal Singh was able to successfully walk between two
worlds - that of the moderate Khalistanis and the militant Khalistanis.
The U.S. government had been aware of Harpal
Singh's presence in the United States since his first arrival in 1989,
but it was eight years later that they arrested him. The government, under
the Immigration and Naturalization Service claimed that he was a threat
to national security, a charge Harpal Singh denies. After an appearance
with an Immigration judge in 1997 and a subsequent appeal before the Board
of Immigration Appeals in 2000, Harpal Singh's case is now under another
appeal with the 9th U.S. Circuit Court of Appeals in San Francisco. If
this decision does not go his way, Harpal Singh and his attorney will
file a petition to be heard by the Supreme Court of the United States. Secret evidence The INS is seeking to deport Harpal Singh
back to India. To defeat his applications for asylum, the INS brought
in secret evidence. Neither Harpal Singh nor his attorney have ever seen
the secret evidence against him. Any discussion of that evidence in the
successive court rulings is also a secret. Professor David Cole of Georgetown University
Law Center, Washington D.C., an attorney who has defended 13 noncitizens
in such cases, told the Bay
Guardian newspaper, "There's just no way to have a fair proceeding
when the government presents its evidence behind closed doors and the
foreign national then has to try to respond to what he thinks might be
back there - without knowing what the evidence is, who said it, when it
was said, or what it's about." "One of my clients said it was like
fighting shadows." The INS brought some serious charges against
Harpal Singh. Court documents made available from his attorney, Robert
Jobe, reveal that the INS's case centered around charges that Harpal Singh
was engaged in terrorist activities - that he provided "material
support" to terrorist organizations and that he was a threat to the
security of the United States. They also claimed that Harpal Singh was
instrumental in the kidnapping of Romanian diplomat Liviu Radu in October
1991. When this case was finally heard in April
1997, Immigration Judge Dana Marks Keener stated: "[The INS] leveled
serious allegations against Harpal Singh…but they have calculatedly
done so in a forum that requires the least amount of evidence for such
charges." A spokesperson for Robert Jobe told The Sikh Sentinel that they believe a good deal of this evidence consists of FBI analyses of conversations Harpal Singh had from his own home telephone and from secret witnesses who testified in the case. Retroactive law In the early 1950s, the U.S. Supreme Court upheld the
use of secret evidence in cases involving immigrants suspected of crimes
or political associations that posed a threat to national security. When
President Clinton signed the Antiterrorism and Effective Death Penalty
Act (AEDPA) in 1996, the use of secret evidence was further expanded to
include cases involving alleged terrorists. AEDPA had a direct impact
on immigration law. Before its passing, the only condition which would
bar an asylum grant was if the applicant were a convicted felon. With
AEDPA, the INS can use secret evidence to charge an applicant with terrorist
activity and detain immigrants for years without filing criminal charges
against them. The biggest issue with using AEDPA in this case is that
the vast majority of the activities Harpal Singh is being tried for preceded
its passage. Harpal Singh's actions were perfectly legal at the time they
were committed. Jobe argued that there was nothing in the wording of AEDPA
that specifically states it could be applied retroactively, it is prominent
by its omission and intentionally left out. Yet that is exactly what the
Immigration Judge did in judging Harpal Singh. The first decision - 1999 In asylum cases, the Judge must consider whether the applicant
is a "refugee." A refugee is a person who would face persecution
if returned to the country they fled. In Harpal Singh's case there was
no doubt, considering the horrific torture he had endured in India. The Judge described Harpal Singh as an "impressive
witness." His detailed testimony was supported, undisputed, by medical
evaluation. Professor Cynthia Mahmood testified that Harpal Singh was
among a select group of Khalistani activists who would be at serious risk
if returned to India, even killed. The INS argued that the country conditions in India had
changed dramatically in the six years since Harpal Singh left Punjab because
of the successful suppression of the Khalistani movement by the Indian
authorities, often by brutal force. And because of the improved conditions,
Harpal Singh should be deported back to India. The Judge sided with Harpal Singh. She was convinced that Harpal Singh had endured "truly
despicable persecution at the hands of the Indian authorities." And
to ensure compliance with the 1967 United Nations Protocol Relating the
Status of Refugees, the Judge decided Harpal Singh could not be deported
even if he were involved in terrorist activities. She stated: "[Withholding
deportation] would fulfill our moral and statutory obligation as a nation
to afford protection to refugees without regard to political considerations."
The Judge also concluded that Harpal Singh was likely
to be tortured in India and therefore, eligible for relief under the Torture
Convention. Emma Winger, a spokesperson for Harpal Singh's lawyer, told
The Sikh Sentinel that the requirements for getting relief under the Torture
Convention - which means that Harpal Singh cannot be deported for fear
of torture and possibly death - are very strict; and because he was given
relief, it makes a strong statement about the seriousness of human rights
abuses by the Indian government. Harpal Singh was deemed a refugee who would not be deported
back to India, but withholding deportation did not mean he could be released
into the United States. That could only happen if he were granted asylum.
With asylum, a refugee is granted permission to bring immediate family
to the United States, work in the United States, obtain a Green Card for
permanent residence status, and eventually become a citizen. Essentially,
the refugee is given a new life in the U.S. The only thing in his way now was the new immigration
rule under AEDPA which the Judge decided to apply to this case. If an
applicant is found to be engaged in any terrorist activity that threatens
the security of the United States, the Judge could deny asylum. Both Harpal Singh and the INS presented witnesses and
documentation to support their interpretations of the scope of his activities,
but many of the differences in their views of the evidence were a matter
of perspective and political opinion. The Judged found Harpal Singh to have engaged in terrorist
activity by providing "material support" to militants. The Judge said Harpal Singh provided potential donors
with the telephone number of a money transfer service used to funnel money
into Pakistan, he gave a small amount of his own money to the leaders
in Pakistan, and "he crossed the legal line when he raised funds
for individuals he knew (or should have known) had committed or might
be planning to commit terrorist activities. The Judge stated, "He
cannot hide behind a 'don't ask, don't tell' legal fiction." He had
"a duty to monitor the use of funds… if he wanted to be assured
they were being used only for humanitarian purposes." The Judge deemed
Harpal Singh's fundraising activities constituted "material support." The Judge also stated that Harpal Singh provided communication
support when he worked out ways to connect phone calls to Daljit Singh
and Paramjit Singh in Pakistan while avoiding detection by the Indian
government. The communications support, she said, also constituted "material
support." The Judge did give him a break when she stated: "His
decision to view this action through rose colored glasses is a rationalization,
not an outright lie." The Judge did not agree, probably because these groups
were militant. Based on all the evidence presented, unclassified and
classified (secret), the Judge found that Harpal Singh "distorted
or minimized situations where he agreed with militancy and where his actions
crossed the acceptable line." In the December 19, 1999 decision,
the Immigration Judge concluded that Harpal Singh was a refugee who did
"engage in terrorist activities" and could be barred from asylum
because of his fundraising activities and his work as a communications
link. But this was not the end. The Judge could reserve favorable discretion in considering asylum if she concluded that Harpal Singh was not a danger to the security of the United States. The INS offered a surprising statement for the security
argument. They said that the level of danger to national security need
not be very significant "because the government of India is a government
friendly to the United States, any of [Harpal Singh's] activities that
endanger the security of India present a danger to the security of the
United States. This statement said it all. The INS was pursuing Harpal
Singh for purely political reasons. The purpose of the United States asylum law, she said,
is humanitarian, not political in nature, and any political fallout from
any particular decision should be ignored. In fact Professor Cynthia Mahmood
provided uncontested testimony that militant Khalistanis were not a threat
the United States government, nor to Indian officials visiting the United
States. She based her opinion on the "respect Khalistanis have for
the United States." The Judge concluded that Harpal Singh was not a danger
to the security of the United States. Harpal Singh is a Khalistani. He was educated and trained
as an attorney and has assisted pro bono in human rights cases while in
the Punjab. The Judge felt that Harpal Singh played a constructive role
in the community. He had openly campaigned for the United Nations to recognize
the Punjab as a disputed territory. She also acknowledged that although
the Khalistani movement's use of violent tactics was neither endorsed
nor condoned, those tactics were not simply incidents of random lawlessness,
but rather deliberate political maneuvers. "A de facto civil war
has raged in the Punjab, with military and strategic targets. The struggle
for Khalistan is an example of where one side calls those involved freedom
fighters and their opponents call them terrorists." The Judge recognized
the political legitimacy of this struggle and factored that into considering
a favorable exercise of discretion. The Judge considered Harpal Singh a credible witness,
she believed he was viciously tortured in India and blocked his deportation,
and she did not consider Harpal Singh a threat to the security of the
United States; but in the end she took a leap from that opinion and made
an upset ruling. In the remaining items of the ruling, the Judge ruled
in favor of Harpal Singh in deciding that instead of participating in
the kidnapping of the Hungarian diplomat Radu, he was actually key in
getting him released. And Rajwinder Kaur, Harpal Singh's wife who was
accused of much the same allegations, was granted everything - asylum,
withholding deportation, and relief under the Torture Convention. The
Judge went so far as to call the INS allegation that she was a national
security threat "preposterous." Appeal Both Harpal Singh and the INS appealed the Immigration
Judge's decision. Harpal Singh appealed the denial of asylum decision
and the INS appealed the blocking of deportation decision. Harpal Singh's lawyer, Robert Jobe, held a press
conference in February 2000 after filing the appeal. Robert Jobe: "If there were any substance to these
charges, any real substance, and if the FBI could prove [Harpal Singh's]
involvement in a court of law without relying on the sleazy secret evidence,
they would bring criminal charges, I'm sure… In this particular case,
it's a miraculous thing, but [Harpal Singh] prevailed, despite the use
of their classified [secret] evidence. He convinced the Immigration Judge
that those allegations had no merit, that he was not a danger to the security
of the United States. And despite the fact that he prevailed, even though
he didn't see the classified evidence, he was able to rebut it. The immigration
service is continuing to press this classified evidence and its appeal.
We find that to be just despicable, frankly. Given the circumstances of
this case, when a man's life is at stake, the only way that I could describe
their tactics in this case…is, it's despicable." David Cole, a constitutional lawyer at Georgetown University,
has represented a number of people who faced detention based on secret
evidence. He says that in his experience the U.S. government uses this
tactic against people who are not in any real sense a threat to national
security. David Cole: "I've represented, over the last decade
or so, thirteen people, against whom the government has sought to use
secret evidence. The government alleged that all thirteen were threats
to national security and should be detained and deported for that reason…
And what it ultimately came down to in almost every case was that the
government said: these people are a threat to national security, not for
what they did, but for the organizations with which they are affiliated
or associated. Not that they did anything bad, but that the groups have
done something bad and we want to attribute the acts of the group to the
individual where we have no evidence whatsoever, that the individual's
actually furthered any illegal or terrorist activity. And that's obviously
a power that makes the FBI's job easier, in a sense. They don't have to,
you know, do the hard work to figure out if someone is engaged in criminal
activity if they just establish that the person has affiliates with the
wrong people, they can turn the matter over to the INS and seek to deport
the person." INS spokesperson Russell Bergeron said it's the agency's obligation, however, to present this evidence to the court. "In these rare instances where pertinent, important classified evidence is presented to us by outside agencies, this is the only mechanism currently provided to us, under the law to present this important evidence, this admissible evidence, to the courts. He was not clear about what "outside agencies" meant, but it is probable that it refers to agencies outside the United States. Impact on Sikhs and minority communities According to David Cole, virtually all secret evidence
cases are against Arabs or Muslims or those perceived to be Arab. They
wonder whether they are being singled out because of their political affiliations
or personal associations. This only furthers the anxiety or suspicion
that these communities have against authority - the FBI - and it makes
the work of government officials more difficult; there is less cooperation
between the government and the community. An additional serious concern is that the impact of secret
evidence use constitutes an impediment to free speech in the communities.
The Arab-American and American-Muslim communities are aware of the political
nature of the secret evidence deportation. These secret evidence deportation
procedures also affect Sikhs, although the Sikh community may not be very
aware of it yet. People are not willing to engage in political debate
if their views are not popular or do not mesh with those of the government.
It is political repression of whole communities. The stunning second decision, 2001 The Board of Immigration Appeals overturned all the favorable rulings by Immigration Judge Keener. According to Emma Winger from the attorney's office, the Board reviewed the Judge's decision and made its own decision. They did not review the evidence, not even the secret evidence, independently. They denied asylum to Harpal Singh and his wife Rajwinder Kaur, and they seek to deport them back to India. What's next Currently, the Ninth U.S. Circuit Court of Appeals is
reviewing Harpal Singh's case and has ordered the Department of Homeland
Security (under which the INS is now incorporated) to share its classified
evidence with the court. Both the INS and Harpal Singh have completed
making their arguments before the Court. A decision is expected soon. Meanwhile, Harpal Singh is still in a Northern California
jail. Rajwinder Kaur works in a factory, just making ends meet. She lives
in Seattle, Washington, north of California, with their eight-year-old
son. Rajwinder told The Sikh Sentinel that she was "just passing
time." She comes to visit her husband often after work. Neither Harpal
Singh nor Rajwinder Kaur has seen their daughter whom they left behind
in India over ten years ago. Only with an asylum verdict can they bring
her here. Harpal Singh said, "This has been very painful. The U.S.
government tries to pin any movement to terrorism. We are freedom fighters." His last thoughts in our final 15-minute conversation were of his kids. His last statement was: "The worst part is I cannot wear my turban." When asked if he would leave the U.S. if he were released, he said, "No, I want to stay here." Comment:
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©The Sikh Sentinel 2003 |
Harpal
Singh considers himself a non-violent activist who can influence prominent
figures in the movement. But his influence and activism got him in trouble
with the Indian authorities. After enduring several episodes of barbaric
torture, Harpal Singh escaped from India with his wife Rajwinder Kaur
in 1993.The couple applied for asylum upon landing in New York. While
their asylum petition was being processed, Harpal Singh continued to work
on the Khalistan movement from the United States.