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Court: Barapind's Crimes May Have Been "Political"

By KENNETH OFGANG

metnews.com, Mar. 10, 2005

Photo: Kulvir Singh Barapind

A Sikh activist accused of participating in the killing of agents or former agents of the Indian government may be exempt from extradition under the 'political offense' exception to the applicable treaty, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a 6-5 en banc ruling, the court ordered partial reconsideration of a 2002 decision by U.S. District Judge Oliver Wanger of the Eastern District of California. Wanger said 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.

The issue to be reconsidered, the court said in a per curiam opinion, is whether the killings were 'incidental' to efforts for political change, as that term was defined in a 1986 Ninth Circuit opinion.

The ruling was a very limited victory for Barapind, however, as the court unanimously ruled that he may be extradited to face other murder charges regardless of what happens on remand.

Student Leader

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 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 I.N.S. 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.

Asylum Bid Foiled

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 alleged killing of four men in a shootout between Sikh insurgents and an Indian government officer, a former officer and their bodyguards.

In reaching that conclusion, Wanger rejected as dicta language in Quinn v. Robinson (1986) 783 F.2d 776, suggesting that crimes against innocent persons could, at least in some cases, be classified as political offenses if committed with a political objective.

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. A three-judge Ninth Circuit panel, in an opinion by Judge - now Senior Judge - Stephen S. Trott, affirmed Wanger's decision in its entirety.

But the en banc majority - Chief Judge Mary M. Schroeder and Judges Alex Kozinski, Michael Daly Hawkins, Sidney Thomas, Susan P. Graber, and William Fletcher - said the Quinn language was controlling law.

Under Quinn, the majority explained, an offense committed in connection with a political 'uprising' falls under the exception if its 'causally or ideologically' related to that event. In so holding, the court implicitly rejected Trott's conclusion that the political exception will never apply to the killing of an innocent bystander, at least in a country where democratic means of change are available.

The court did, however, conclude that Barapind is extraditable for the murder of Kulwant Kaur, adopting Wanger's result although not his reasoning.

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, Wanger ruled, there was no evidence that she had any connection to the dispute between the separatists and the government. Since Barapind offered no explanation at all as to why Kaur was killed, the majority said yesterday, it cannot be said that her killing was incident to the political struggle.

The court also rejected Barapind's argument that because some of the offenses were political, and because the case was tainted by police misconduct, he should not be extradited on any of the charges.

The argument fails, the court 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.

Judge Pamela Ann Rymer - joined by Judges Andrew Kleinfeld, Richard Tallman, Johnnie B. Rawlinson, and Consuelo Callahan - argued in a separate opinion that 'attacks on non-combatant civilian targets' should be excluded from the political exception.

'I believe we must overrule Quinn, because indiscriminate violence against innocent persons should not qualify for the political offense exception to extradition, even if politically motivated,' Rymer wrote. 'Nor should the propriety of committing common crimes be left to the perpetrators' discretion. And civilians are different from the military.'

The case is Barapind v. Enomoto, 02-16944.