The American Inquisition

Camille T. Taiara

The charges are shaky. The evidence is secret. He's never had a fair trial. But Harpal Singh Cheema has spent six years in a northern California jail - and if he's guilty of aiding and abetting terrorism, you might be, too.

Harpal Singh Cheema and his wife, Rajwinder Kaur, stepped off an airplane at New York's John F. Kennedy International Airport May 5, 1993, with little more than a bag of clothes and hopes for a safe haven.

Indian authorities had detained Singh, a prominent figure in the Sikh nationalist movement, for nearly half a year, during which time they tortured him on a regular basis and subjected him to a mock execution. It was the fourth time that he'd been held on trumped-up charges and subjected to inhuman brutalities. Amnesty International helped procure his release, and contacts inside the Indian government warned Singh that he should leave the country as soon as possible.

Singh used another man's passport to board the plane to the United States (the Indian authorities had confiscated his), then ditched it before arriving. Neither he nor his wife had visas to enter the United States. Both applied for political asylum as soon as they touched down on American soil. The U.S. Immigration and Naturalization Service must have believed their story, because it allowed them to move freely about the country while their applications were being processed. They soon settled in suburban Union City, 30 miles southeast of San Francisco, where they lived peacefully for four and a half years and had a son, Daya.

Then in November 1997 the INS accused Singh of being a terrorist based on secret evidence and locked him up.

The U.S. government never filed any criminal charges against Singh - nor has the Indian government asked that he be extradited to face any charges in his home country. Nonetheless, should the INS prevail in its proceedings against him, Singh, now 45 years old, will have two choices: remain behind bars indefinitely in the United States or be sent back to India.

Currently, the Ninth U.S. Circuit Court of Appeals is reviewing his case and has ordered the Department of Homeland Security (under which the INS is now incorporated) to share its classified evidence with the court. Should the court find fault with the agency's use of secret evidence, it could send an important message to the federal government.

"When a man who faces certain torture in his home country is faced with deportation using evidence he can't see and facing general allegations of assistance to a group that isn't even now on the State Department's list of foreign terrorist organizations, you wonder what's left of due process and fairness - especially for immigrants," said Kit Gage, president of the National Coalition to Protect Political Freedom.

"Those with the fewest rights usually act as a template for the removal of those rights for citizens," she warned.

Indeed, the government has only expanded its definitions of terrorist activities and its use of secret evidence since Sept. 11, 2001. The USA PATRIOT Act, signed into law by President George W. Bush Oct. 26, 2001, allows for the detention and deportation of non citizens associated with groups that haven't even been formally deemed to be terrorist organizations - on expanded definitions of what constitutes support for such groups. It also empowers the State Department to designate domestic groups as terrorist organizations and amends the definition of terrorist activity to include "substantial damage to property."

Since then, Bush has issued executive orders designating terrorism suspects as "illegal enemy combatants" and allowing suspects to be tried through military tribunals. Both classifications have now been applied to U.S. citizens and condone maintaining the suspects incommunicado, without charges or the right to a lawyer, based on secret evidence.

Fighting Shadows

The case against Singh illuminates a combination of legal tactics used by the federal government in recent years to detain or deport foreign nationals with controversial political histories - without ever having to prove they actually committed a crime. The immigration agency simply accuses an immigrant of providing "material support" to a "terrorist organization" and bases its allegations on confidential evidence that neither the defendant nor his lawyer ever gets to see.

The maneuver is a direct result of the Antiterrorism and Effective Death Penalty Act, a law approved by then-president Bill Clinton April 24, 1996, that made it a crime to provide "material support to terrorist organizations." Immediately, critics were troubled by AEDPA's potential for politically motivated abuse.

Which groups are deemed "terrorist organizations," they've pointed out, changes over time and is largely a political determination. What's more, "material support" is broadly defined to include a wide range of acts previously protected by the First Amendment - even when undertaken in support of purely non violent or humanitarian purposes.

"Essentially, [to make it onto the State Department's list of foreign terrorist organizations] someone in the group has to commit an act which threatens human life and which is meant to intimidate a populace or a government," Gage explained. "At the lowest level, you could have a really nasty demonstration and fit the definition of a foreign terrorist organization. There are thousands of groups that fit the definition, theoretically. The selection process has gotten us to 34 groups [that are currently on the list].

"If in 1980 this had been in place, the African National Congress would've been on the list. That would've meant that I would've gone to jail, because I gave money to the ANC for what were, as far as I could tell, completely political, non criminal, humanitarian aspects of their work," Gage said. "[After AEDPA,] no longer is it about how serious are the acts that you're engaged in but rather what are the politics of whom you are helping."

And once the government relies on secret evidence to employ these kinds of allegations, you've got the perfect recipe for political persecution.

Professor David Cole of Georgetown University Law Center, an attorney who's defended 13 non citizens in such cases, is all too familiar with the results.

"One of my clients said it was like fighting shadows," he told the Bay Guardian. "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.... If one side gets to put its evidence on without any ability for the other side to test it, then the danger is that you're going to have erroneous results, because the judge is not going to have the full picture."

Cole said every court that's reviewed the use of secret evidence in immigration proceedings in the last decade has declared the practice unconstitutional. Each of his clients involved in such cases was eventually released: either the INS dropped the case once it was asked to make the evidence available to the defendant, or the defendant was able to prove his innocence after the evidence against him had been declassified.

"Judges have frequently ordered individuals detained or deported on the basis of secret evidence presented behind closed doors by the immigration service," Cole said. "And then, when we were able to force the immigration service to show its hand in one respect or another and were able to respond to the evidence, the judges have reversed themselves and found there was no reason to deny the alien release or to deport the alien."

In one such case, a stateless Palestinian by the name of Hany Kiareldeen spent 19 months in jail - much of it in solitary confinement - based on secret evidence alleging he was a member of a terrorist organization. Once finally revealed, it turned out the Federal Bureau of Investigation's "evidence" consisted of uncorroborated allegations that terrorists convicted of planning the 1993 World Trade Center bombing had regularly communicated with Kiareldeen by telephone at his home prior to carrying out their goal. Yet the phone calls had been made months before Kiareldeen had moved into the residence.

Kiareldeen didn't even know the group he was accused of corroborating with.

In another case, the INS held seven Iraqis it said entered the country without valid visas - although they had participated in a failed Central Intelligence Agency plot to overthrow Saddam Hussein and were evacuated from Iraq by U.S. government forces in October 1996 and, indeed, had suffered persecution and torture under Hussein's regime before that.

Two pursued their case to trial with the help of former CIA director James Woolsey and were eventually released in June 2000 after spending almost four years in detention. Speaking before the Senate Judiciary Subcommittee on Technology, Terrorism, and Government Information in October 1998, Woolsey testified "government witnesses got confused about the difference between Iraq and Iran. Translation between English and Arabic during the interrogation was so bad that one man spent a year in prison because an interpreter flippantly invented an acronym and produced confusion about a Kurdish organization." In fact, the interpreter had confused KLM, the acronym for a Dutch airline the man had travelled on, with a terrorist group.

Yet most cases have not been simply a matter of sloppy work on the part of the INS and the FBI. "In virtually all the cases I've been involved in, when the government's charges were made known, it turned out that they were based on political affiliations and views," Cole said. "Never [were any of the cases based] on any actual involvement in terrorism."

Judging Singh

The INS levelled some serious allegations against Singh. According to San Francisco Immigration Judge Dana Marks Keener's unclassified decision, issued Dec. 19, 1999, the INS claims Singh "directly participated in the recruitment of militants, collection and transfer of funds to terrorist leaders and ... logistical planning and implementation of activities by Sikh militants in their efforts to secure transportation, money, weapons and explosives." It also said Singh "served as a communications link in the kidnapping of Romanian diplomat Liviu Radu in October, 1991."

At this juncture it's impossible to know the details of the INS's case against him, for obvious reasons: its evidence remains secret - as does any discussion of that evidence in the successive court rulings. Leslie Ungerman, the lead litigator on the INS's behalf, told the Bay Guardian that she and her staff were "not at liberty to speak about ongoing cases."

"We were literally locked out of the courtroom [when the INS presented its secret evidence at Singh's trial]," Robert Jobe, a San Francisco-based attorney representing Singh, told the Bay Guardian. "The witnesses were coming in through the back, so we couldn't see them."

A careful reading of the court documents that are available, however, reveals several factors.

First, the crux of the government's argument seems to center on Singh's alleged provision of "material support" to militant organizations in the form of communications and fundraising activities while living in the United States. Yet to this day, not one Sikh group appears on the State Department's list of foreign terrorist organizations.

In fact, the vast majority of the activities Singh is now being tried for preceded AEDPA's passage and thereby raise the frightening specter of applying the law retroactively to cover actions that were perfectly legal at the time they were committed.

The implications reach far beyond Singh's case. If Singh can be deemed a threat to national security for such actions, then could the government pursue charges against Gage for contributing to the ANC 20 years ago, for example, should it choose to do so now?

Although almost all of the classified attachment to Judge Keener's decision was blacked out before being released to Singh's attorney, the document does show that the secret evidence in the case came from the FBI. Jobe believes that a good deal of this evidence consists of FBI analyses of conversations Singh had from his own home telephone - rather than, say, word-for-word transcripts. Yet without access to those analyses, Singh was unable to address their accuracy.

Forced to guess what kind of information the INS was presenting, Singh chose to reveal the nature of his involvement in the Sikh separatist movement in great detail. He and his legal team provided a dozen witnesses who helped corroborate his story.

Singh joined the movement for Sikh independence shortly after 70,000 Indian soldiers descended on the Golden Temple complex, the Sikhs' principal holy site, in Amritsar, with tanks and weapons June 4 through 6, 1984. Because the attack coincided with an important Sikh holy day, somewhere between 500 and a few thousand innocent pilgrims were killed, according to news reports and expert testimony. Sections of the complex were demolished, and many of the Sikhs' most sacred treasures were destroyed.

The assault, called Operation Blue Star, catalyzed the movement calling for an independent Sikh nation. Within months, two of then-prime minister Indira Gandhi's bodyguards - both Sikhs - assassinated her, leading to nationwide pogroms that killed 3,000 Sikhs in Delhi alone. (Although a subsequent investigation determined that congressional party leaders had coordinated the mass killings, no one was ever prosecuted for those crimes.)

By April 1986, a group of Sikh intellectuals produced a declaration of independence for Khalistan, which they sought to form as a separate Sikh nation, and created a political structure and an army.

International human rights organizations' estimates of the number of people killed between 1984 and 1994 as a result of the struggle range from 10,000 to 40,000. Although both sides committed atrocities against civilian populations, the vast majority took place at the hands of Indian police and other government authorities. Such reports also document the Indian government's regular use of false charges, torture, extrajudicial killings, and secret cremations.

"Democratic protest had been met with violence and imprisonment," Singh told the Bay Guardian in one of several 15-minute phone interviews. (The Department of Homeland Security denied our request to visit him in jail.) "The people thought, if we are going to die anyway, then why die without any change?" Singh said he lost at least half a dozen childhood friends during those years.

Singh joined the All-India Sikh Student Federation in 1985 and helped organize a mass protest against Indian plans to divert water from the Punjab River. A lawyer by training, Singh represented numerous Sikh activists in the years to come and provided food and shelter to alleged militants hiding from the authorities.

In the fall of 1990, Singh fled to Canada and then crossed the border into the United States after being detained and tortured by police in his native Punjab - India's only Sikh-majority state and the heart of the nationalist movement - for the third time. He attempted to reenter India in 1992 after a friend of the family informed Singh that his wife was critically ill with malaria, but he was immediately captured at the Bombay Airport. Human rights groups immediately began lobbying for his release, but it would be a horrific year before he would return.

In the United States, Singh quickly rose to a position of prominence in Sikh Youth of America, the main Sikh expatriate organization here. (He was later elected president of the SYA in 1999 while in detention.) He regularly spoke on behalf of the Sikh independence movement and raised funds for what he claims were purely humanitarian activities of various Sikh organizations. He garnered media attention, helped found a lobbying group called the Khalistan Affairs Center, and generally acted as an important hub between various factions internationally.

"There are all sorts of organizational reasons why somebody like Harpal, who is not involved in violence, would be on the phone with [militant leaders]," said Cynthia Keppley Mahmood, an anthropologist and Sikh separatist expert who regularly serves as an expert witness in immigration cases involving Sikhs in the United States and Canada. Singh, she said, is highly respected among Khalistanis and is known as an important voice of moderation.

Singh never claimed to be a pacifist. "Every nation that's ever gained its independence had done so by force," he told the Bay Guardian. Yet in the long run, he said, "militancy only hurt the movement." In India, the government succeeded in crushing the movement, he explained. Internationally, Sikh militancy only functioned to give the cause a bad name.

Terrorist Or Freedom Fighter?

The overall picture that emerges of Singh from a review of court records is far from black and white. Judge Keener - the only person to have reviewed the secret evidence so far - found that Singh "distorted or minimized situations where he has agreed with militancy and where his actions have crossed the acceptable line."

Singh, she continued, "either did intend to provide or procure financial support for terrorist activities or he deliberately chose not to educate himself on how such monies were being used" and "played a critical role as a communications link between the militants in India and militant leaders in Pakistan" in order that they might avoid detection by Indian authorities.

Keener also acknowledged that Singh had attempted to defraud the U.S. government by submitting wrongful applications for legalization with the INS after first entering the country in 1990.

Nonetheless, she also pointed to several factors that mitigated these actions - not the least of which was that the Sikh struggle in India has all of the attributes of a "de facto" civil war that arose from legitimate concerns over Sikhs' limited input into economic, political, and religious issues affecting their community.

"The struggle for Khalistan is an example of where one side calls those involved freedom fighters and their opponents call them terrorists," she wrote.

Keener found that Singh regularly interceded in favour of non-violence. Indeed, the judge acknowledged that Singh not only had nothing to do with the kidnapping of Romanian ambassador Radu but, to the contrary, played a crucial role in negotiating his release after finding out about the incident through media reports - an act that admittedly required that he communicate with militant leaders and facilitate at least one phone call between them. And she deemed Singh's fraudulent INS application understandable given the nature of the persecution he suffered in India.

In contrast, the judge had some harsh words for the INS. "The Court has strong reservations about the Service's use and presentation of the classified evidence in this case," wrote Keener - much of which she characterized as uncorroborated and said should be viewed with "respectful scepticism." "The Service ... claims that [Singh] is an international terrorist. But they have calculatedly done so in a forum that requires the least amount of evidence for such charges. Moreover, they have presented even that lesser quantum of evidence in a classified setting that allows for little, if any, opportunity for substantive challenge.... By proceeding in this manner, the Service tacitly admits that they cannot meet the 'beyond the reasonable doubt' standard needed for a criminal conviction, the 'evidence needed to sustain the charge' standard needed for extradition, or even the 'reasonable, substantive and probative evidence' standard needed for exclusion."

Still, two years into Singh's detention, Keener dropped the hammer and denied Singh's political asylum request. However, she also concluded that Singh did not pose a threat to national security. Given the high likelihood Singh would face torture and possibly death if returned to the country of his birth, the U.N. Protocol Relating to the Status of Refugees required that he not be deported to India until such a time when it was safe for him to return.

The Board of Immigration Appeals, however, overturned much of Keener's findings - without reviewing the secret evidence presented in the case - and called for Singh's deportation or indefinite detention. The Ninth U.S. Circuit Court of Appeals agreed to hear Singh's appeal but has so far stopped short of requiring the government to make its classified evidence available to him and his attorney. As per the court's order, the Department of Homeland Security is currently working on making its evidence available to the court and granting its judges the security clearance necessary to review it.

A Slippery Slope

In the meantime, Singh has spent almost six years behind bars without so much as the right to a bail hearing. Today he's detained at Yuba County Jail in Marysville, where he shares a dorm room with about 50 other inmates. He's not allowed to wear his turban and is only allowed outdoors for an hour at a time, two or three times a week.

Rajwinder Kaur, his wife, has also been implicated in the case against Singh.

Mahmood attested that although the Indian government's crackdown has succeeded in crushing the Khalistani movement within its borders, it has nonetheless singled out the movement's leaders in exile as posing a continuing threat.

Singh, she told the court, "is in my opinion among the 50 to 100 Sikhs worldwide who would be critically at risk if returned, both from agents of the Indian government and potentially from the Hindu nationalist death squads (largely unchecked by police) that rove around Punjab." (As his wife, Kaur would also risk persecution, she said.)

But the INS's case against Singh is not just a matter of whether the U.S. government will revoke one particular man's right to liberty due to his involvement in a revolutionary cause half the world away. Once a government undermines immigrants' rights to freedom of expression and due process, it sets a precedent for undermining those of its citizens.

While legal challenges such as Singh's have helped dissuade the federal government from continuing to employ these kinds of tactics against other non citizens whose politics run counter to its own, only Congress or the Supreme Court have the power to put a stop to the use of secret evidence in immigration proceedings once and for all.

Instead, the Supreme Court actually condoned the use of secret evidence in such cases in two precedent-setting decisions during the height of the McCarthy era. Efforts to pass a bill against the practice in the House of Representatives in 1999 failed.

Georgetown University Law Center's Cole explained that the government has found new ways to expand its use of secret evidence in recent years. "The practice remains on the books," he said. "They've relied on secrecy very heavily since Sept. 11. Hundreds of immigration hearings were held entirely in secret. It's going to continue to be an issue."