IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO, 853538
UNITED STATES OF AMERICA,
VERSUS:
GURPARTAP SINGH BIRK, SUKHVINDER SINGH, VIRINDER SINGH, JASBIR SANDHU AND JATINDER SINGH AHLUWALIA
SUGGESTION FOR REHEARING EN BANC
ISSUE PRESENTED:
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that.
More: Oh? And when the last laws were down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast for coast man’s laws, not God’s — and if you cut them down and you’re just the man to do it do you really think you could stand upright in the winds that would blow then?
Roper; Yes, I’d give the Devil benefit of law, for my own safety’s sake.
In a case made all the easier because it involves five Sikhs accused of plotting a Hindu leader —a panel of this court has denounced obedience to the law as “short sighted and small minded”, has bowed to “sensitive diplomatic consideration,” and has laid waste the law so that the executive branch can carry out its will unhindered by either the law or its ‘own incompetence. Though the legal issue be narrow (whether an “official guest” of the United States must be designated pursuant to an act of Congress or can be anointed export facto by judicial fiat), the panel’s treatment of the issue so betrays the principle of an independent judiciary and the rule flaw that it should be vacated en banc, “For (our) own safety’s sake,” the law must not be sacrificed to the government’s perceptions of its self-interest, and least of all when the result is a judicial cover up of the executive’s incompetence.
STATEMENT OF THE CASE: It is a great federal crime to kill, 6 to conspire to Kill, an “official guest” of the United States government, 18 USC. Gg 1116, 11172.
Alleging that one Bhajan Lal, the Chief Minister of an Indian state, was invested with that status, the government indicted the five defendants for conspiring to murder him. The defendants moved to dismiss the indictment on the ground that although Bhajan Lal may have been a person of interest to some functionaries in Washington, he was never afforded the position of an “official guest”. ‘While many people are of interest to many government employees at many levels, an “official guest” for the purposes of the criminal relative to murder is given a special and precise statutory definition. Official guest” means citizen or national of a foreign ‘country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State.
18 US.C. g1116 (b) (6)
‘The “official guest” category was created so that, by act of the Secretary of State, individuals other than “foreign officials” could be given a status that would afford federal jurisdiction if they were subsequently attacked. Of concern to the Congress were persons such as Olympic athletes. Slip Op., p. 9098.
An evidentiary hearing was conducted on the motion to dismiss. Finding that Bhajan Lal was not an official guest, the district court dismissed the indictment Pursuant to 18 US.C. g 3731, the government appealed the district court decision. A panel of this court reversed, Ignoring all facts showing that no one had ever even considered Bhajan Lal to be an official guest, much less invoked the statute, the court saved the government’ case by proclaiming him an official guest simply because security officials watched cover his safety.‘ Slip Op., p. 9092. For the court’s conclusion there was no basis at all beyond a willingness to bend the law to the government’s will
STATEMENT OF FACTS: Bhajan Lal did not come to the United States to represent his country; He did not come to represent his country’s interests. He did not come on official business with our government. He did not come on ‘unofficial business. He came for no greater reason than to visit his eye doctor in New Orleans. 6R 4; Slip Op,, p, 9094. It was surely and simply a personal visit.
No individual in the State Department ever considered Lal to be an “official guest” under the cited statute or otherwise. The Secretary of State did not do so. The Secretary of State’s designee did not do so, No one did. It never occurred to anyone at the State Department that Lal ought to be so designated. The person who could have initiated the designation process was not even aware of its existence, the inescapable truth is that it was neither done nor contemplated. ‘The power to confer official guest statute on a visitor was explicitly ‘granted by Congress to the Secretary of State and to the Secretary of State alone. 18 USC.1116 (b) (6). By explicit statute, the Secretary of State was empowered to delegate his authority to specific employees. 22 US.C, 226583 With regard to official guest designation, the Secretary of State did so by an explicit rule that gave authority to the Chief of Protocol 22 CER g2.4 (1986 Neither the Secretary of State nor the Chief of Protocol acted:
Q..there was never to your knowledge prior to May 6, I guess it would be, or at any time there was no request made by anyone to have Mr. Bhajan Lal designated as an official guest of the United States?
A, That’s correct, to the best of my knowledge.
- And to the best of your knowledge Mr. Bhajan Lal was never designated as an official guest of the United States?
- That’s correct.
- There was never a request made to the Chief of Protocol, Mrs. Roosevelt, to designate Bhai Jan Lal as an official guest of the United States, was there?
- No.
- And I take it there has never been a designation by the Chief of Protocol, Roosevelt, designating Mr. Lal as an official guest of the United States during the period of April and May, 1985?
- No, not to my knowledge Said the Acting Chief of Protocol.
- Well, it’s clear, is it not, that insofar as official guest is a word of art taken from a statute you have no doubt in your mind that Mr. Bhajan Lal was not an official ‘guest, is that correct?
Yes, um humph.
The acting designation process is not complicated, It begins with memorandum, requesting that a specific person, or more commonly, a group of persons, receive official guest designation. The memorandum is then passed on to the Chief of Protocol who either approves or disapproves the request. If approved, the person is designated an official guest of the United States, and his name goes on a roster. (22 CFR 2-4-2829)
The process of designating Bhajan Lal never began. The Chief of Protocol did not consider whether to designate Lal an official guest because she was not asked to do so, She was not asked to do so because the official who knew of Lal’s visit and who could have initiated the process was inexperienced, overworked, and did not know about the law, the process or anything else.” Thus, as a result of bureaucratic ignorance and incompetence, absolutely nothing was done either to designate Bhajan Lal an official guest, or to contemplate his designation.
It was true enough that the: United States government took an interest in Lal, Because India had indicated a concern that Lal could be the target of Sikh extremists, the State Department’s office of Security contacted a New Orleans field agent and directed him to inform the local police of Lal’s arrival. Over the next few days the State Department Security Office and the FBI provided information to the local New Orleans police about a possible plot. Then, after four of the five defendants were arrested, special agents from the State Department were actually dispatched to provide Lal with direct protection, none of the converted Lal into an “official guest and nothing in the record suggested otherwise.
Unquestionably, the executive: branch acted prudently in seeing that protection was provided Lal, but the fact that protection was provided does not make a person an official guest. An individual need not be designated an official guest before security measures can be taken. The United States government “routinely protects” persons like Lal and many others, but it does not routinely designate persons to be an “official guest” of the United States government. Indeed, the designation is generally used, as Congress intended it, only for cultural, educational, and groups, and then not extensively. In 1981, there were only 24 such designations; in 1982, 14 or 15; 1984, a small group of individuals and then a large designation for the Louisiana World’s Fair. With regard to “individuals such as the Minister (Lal) we had very few of these… a handful of people in 1984…in 1985 so far as I know there has been none.” Yet many more persons receive the benefit of security concerns. ‘That there is no relation between security concern and “official guest” status is demonstrated’ by the fact that agents of the federal ‘government have been empowered to protect “distinguished visitors” like Lal since long before the enactment of 18 USC. GlIl6 Prosecutorial jurisdiction is not now and never has been a necessary corollary to the historical power to protect. Protection and jurisdiction are separate and distinct notions; neither is necessary to the other.
Yes, the federal government cared about Bhajan Lal’s safety while he was in the United States and, yes, it took steps to ensure his safety. But, protection is neither the sine qua non nor even an element of official guest status; designation “as such” is, and the district court correctly and inevitably held that Bhajan Lal was not designated an official guest. That a panel of this court could conclude otherwise required an exercise in judicial legerdemain.
REASONS FOR GRANTING ‘THE PETITION: In reversing the dismissal of the indictment three judges of this court came to the conclusion that where matters of international relations are at issue it is “short sighted and small minded” to follow the express command of the Congress. This characterization of the trial court’s ruling does an injustice to a district judge who displayed a profound respect for the law, and establishes dangerous precedent by permitting the executive’s perception of international exigencies to take precedence over the dictates of Congress.
This case should be heard enbanc not because the panel merely misapprehended facts or misapplied existing law, but because the panel manufactured federal jurisdiction where none existed in an indulgence to the executive’s desire for a politically desirable result. For reasons of international relations the government insisted ‘on prosecuting this case—and the court, notwithstanding the law and facts, obliged.
If the panel’s decision affected only the defendant’s case, enhance consideration might not be warranted. This being a case of first impression, however, the precedent established will provided a corrupted foundation for a whole line of cases that will make federal jurisdiction turn on the whim of the executive.
ARGUMENT: ‘The hard truth of this cases that the State Department, through ignorance, incompetence, or indifference, did not do those things Congress empowered it to do if it wished to accord someone special status. There is no judicially honest way of avoiding that fact. Once the State Department’s failure is revealed, the inexorable conclusion has to be that Lal was not an official guest of our government designated as such. Only at the expense of judicial honesty to facts, law and logic can one reach a different conclusion.
DISHONESTY TO THE FACTS: The court predicated its opinion on a straw man, Said the court, “The defendants argue that Chief Minister Lal does not qualify as an ‘official guest? Because the State Department failed to complete the paperwork required by its internal procedures.” This, of course, was not the defendants’ contention at all. From the beginning defendants maintained that absolutely nothing whatsoever was done to designate Bhajan Lal, It was not a question of failure to complete paperwork. It was a question of a process that was never begun, of a process that was never contemplated.
After setting up its straw man, the court confidently knocked it down, holding that “it would be both shortsighted and small minded to tum the question of federal jurisdiction on the completion of a ministerial task”. Out of context, the court’s point might be well taken. But, taken in context, the court’s holding dishonesty suggests that the necessary steps for designation were set in motion and that the Chief of Protocol merely failed to complete the necessary paperwork, The record gives the lie, The man responsible for beginning the designation process, admitted he had done nothing in that regard.
Article extracted from this publication >> October 17, 1986
