NEW ORLEANS USA: Dr. Birk was arrested at 10 p.m. on May 41985 in New Orleans near the Meridian Hotel (where Mr Lal was staying) at 614 Canal Street (the Worlds widest street!) The charges were 18U.S.C. Sect. 1117 of conspiracy to kill an Internationally Protected person Bhajan Lal (from Haryana India) during his visit to New Orleans for his eye operation in May 1985. Officially the news was declared on Monday May 13-1985. The May 141985 issue of The Times Picayune New Orleans the local newspaper published the following information: (According to a police source Lal arrived in New Orleans on April 29. Dr. Herbert Kaufman who heads the Louisiana State University Eye Center New Orleans operated on Lals right eye last Tuesday. Lal had a corneal transplant a cataract removed and an artificial lens implanted Kaufman said. Kaufman treated Lal in New Orleans for an eye fungus about 2 year ago then on their invitation visited Lal and his wife in India six months ago. Police said they told Lal about the plot May 3 but that he did not seem concerned.
His attitude was business as usual” one officer said. “I guess that’s because in India he’s used to having a 100-mansecurity fore with him all the time.” Lal was accompanied here by his wife his Indian doctor his secretary and a security man.
On May 16 1985 as witnessed by the present reporter Dr. Birk and the other four defendants pleaded innocent to the charges but the Federal magistrate Honorable Ivan L.R. Lemelle refused to release them on bond. John Caplinger the then assistant district director of the investigation for the Immigration and Naturalization Service (INS) in New Or. Jeans advised against releasing the defendants “I feel any of the five as soon as he hits the street will be gone” Caplinger said. All five would have faced a maxi mum sentence of life in prison if convicted.
On Sept.5-1985 Hon Judge Patrice E.Carr dismissed the case on the ground that Lal was not an official guest of the USA and therefore the court had no jurisdiction in this case. The case was closed! John Reed a local trial attorney trained for this kind of case was working in behalf of Dr. Birk. The Government appealed in the 5th circuit. In the 5th circuit the prosecutor requested to Judges that a small paper work error due to which this case was dismissed must not jeopardize our relation with the Indian Government After more than a year the case was then restarted in Hon Judge Cars court.
In New York during 1986 Dr. Birk was charged for the conspiracy to assassinate Rajiv Gandhi the then Prime Minister of India during his visit to US in June 1985. A nationally well-known lawyer William M.Kunstlr was working in behalf of Dr. Birk. According to Birmingham (Alabama USA) News March 10, 1986 during the trial the jury learned that before his arrest Dr. Birk old the undercover agents Camper and Norris really don’t want the U.S. Government inn embarrassing position.” As reported in India Abroad March 21, 1986 in reference to the conspiracy Kunstler told the jury “That of 30 telephone calls between Birk and operatives 28 had been made to Birk mostly by Norris (the FBI undercover agent). When you think of real conspire tors think of these telephone calls.” Dr. Birk was however prove innocent of the charges tall Rajiv Gandhi but was sentenced by Hon Charles Sifton for seven and half years under 18 US.C Sects 371 842(a) (3) (A) and 960 for: causing to be transported and agreeing to receive a quantity of explosives and for agreeing to prepare and take part in a military expedition against India country with which US was at peace.
In New Orleanson April 7, 1987 Dr. Birk accepted an Alfred Plea in which he had right to maintain his innocence while at the same time accepting the sentence with outgoing through atrial. On June 10, 1987 Hon Judge Carr sentenced him for 10 years and 1 day (to run concurrently with seven and half years mentioned above) Ironically this extra day made Dr. Bisks release date May 24, 1991 coinciding with the funeral day for Rajiv Gandhi.
Dr.Birk spent more than year in New Orleans prison. He was then transferred to U.S Penitentiary in Lewisburg Pennsylvania where he spent four and. half years. Lewisburg is an ultra- security prison in the U.S. As Dr.Birk once said most of the inmates at Lewisburg are Ph.Ds of course in their own subjects The Lewisburg Authority was extremely pleased with his dedicated work as shown in Letter (1). During February 1991 he was transferred to the Federal Correctional Institute Oakdale. Oakdale is a very small town in Louisiana about 200 miles west of New Orleans. (Dr.Birk spearheaded the effort of raising the fund for the construction of Gurdwara Sahib (Sikh Temple) in New Orleans by pledging $55000.00. Most of the amount had been paid. The balance if any will be paid up by the time of inauguration).
The first bond hearing was on June241991. From New Orleans the defence attorneys R.Schoemann (a trial expert working in this field since 1950)and Thomas P.Adams atop lawyer in immigration matters) were working in behalf of Dr Birk The defence attorneys told Honorable Judge Kevin. McHuge that Dr.Birksanger was mainly due to what happened to the Sikhs in 1984 and said “Thousands of Sikhs including many women and children died in the attack on the Golden Temple and thousands more were killed raped and tortured in the subsequent attacks after Gandhi’s assassination. Nothing was done by the Indian Government to stop this wholesale slaughter.” Many letters from the Sikh community and Lewisburg Prison authority were given to the court. The present reporter attended all the hearing at Oakdal and testified as and when required Dr.Birk in his testimony said that he was completely responsible for his action without blaming anybody else. He said he respects the verdict of Hon. judge Carr and thus paid the price forgoing beyond the law of the land He said that h never wished to jeopardize the United States interests. At the end of the day Hon. Judge McHug said that he would set a bond for Dr-Birk on June 29, 1991 if the Government did not show any proof of Dr. Birk being dangerous to the public. Adams then asked Judge could you please tell approximately how much the bon« would be in this case?” The Judge replied that it all depends on what the Government would say on June 28, 1991 and then we will decide the amount of the bond accordingly.
At the next hearing on Jun 28, 1991 the Government was represented by Ira Frank a former: INS Trial Attorney who now serves as an INS Special Agent in Washington D.C. and apparent holds a very senior position. Special FBI Agent Thomas Kinney was present and testified that he had a confidential information o Dr.Birk being dangerous to the public. When Adams was questioning Kinney Adams objected saying to the Judge “Judge when we are asking any question Kinney would first look questionably a prosecutor and then reply according to the hint he receives. This is not fair! Kinney replied that he was expecting the pros. cut to object to such questions. When asked why Dr.Birk had not been charged criminally for these alleged illegal actions Agent Kinney stated that there was no “probable cause” for criminal charges. From Idaho Agent Tom Norris testified on the telephone His opinion was based upon his dealings before Dr.Birks arrest and therefore was challenged by the defence attorneys. Defence attorneys could not defend as much as they were capable of because the Government wanted to keep all of the information confidential Schoemann said “it is like a kangaroo court which must not be here in a free country.” Even in the presence of the heavy-weight champions from Washington the defence attorneys continued defending — like Mohammed Ali —till the end of the last round!
At the end in the concluding remarks the Government attorney Frank said” Your Honor finally it is up to you to decide this matter. His (Dr Birks) family is in U.K. and he is a British Citizen. He has no assets in the United States. According to the FBT witness he will again be involved in the same activities. If set free on a bond that may affect our relations with the Indian Government!” The bond was then refused. After listening to the verdict within a second Dr.Birk approached Tom Adams and said “Tell them that if I can’t defend myself according to the confidential information then I don’t want to stay there. Tel them to deport me as soon as possible” Adams in his professional manner told Dr.Birk to say nothing at resent. While preparing some important notes and looking at his note pad Adams said” Judge we would like to appeal against this decision.”
How far and for how long one government can please the other? Only time can tell. Referring to friendship between two nations Rolf Hochhuth said” Men may be linked in friendship. Nations are linked only by interests” During May 1985 Rajiv Gandhi was thankful to the FBI for saving his life. Soon after that in the beginning of June 1985 as usual he Started criticizing Washington under the title “Gandhi irked that FBI hid plot to attack N-plant” the Associated Press report of Gandhi’s criticism in the Times picayune Wednesday June 5, 1985 as even if it was difficult to rival details of assassination plot in advance. Gandhi said they (FBI) should have told us about an attempt on our nuclear power plant” ”It would have been a Three mile Island sort of thing “Gandhi said referring to the par of the reactor core at a Pennsylvania nuclear power plant in 1979 Gandhi said he had “no shopping list” for U.S. arms or high technology. The Soviet Union with which Indira Gandhi forged clos relations years ago is India’s major arms supplier and Rajiv paid state visit there last week. He said he would tell Reagan of India Concern about Pakistan’s reported efforts to develop nuclear weapons and criticized Washington for exempting Pakistan from the Symington Amendment that prohibit said to a nation believed to be building nuclear weapons. Gandhi Said that the war in Afghanistan also contributed to tension in the region but declined to call for withdrawal of the Soviet troops.
Once Jawaharlal Nehru said “Democracy is good I say this because other systems are worse.” doubt some other systems are worse. Relatively the democracy in United States is far better. The USA is the country where a convicted bank robber maintains his right to sue the FBI. On the other hand the FBI would not spare its own informer when it comes to the law. Frank Camper on undercover informer to the FBI in the case of Dr.Birk begged for any mercy during his trial in Los Angeles in April 1987 saying that he was very helpful to the FBI in Dr. Birks case. He too was sentenced to 15 years!
In a free country not to struggle for your rights is in itself an insult to freedom. While talking to the present reporter Schoemann said you must fight against this Remember when Dr. Martin Luthet King was fighting his enemy was at almost every block. These days the situation is far better.” “I understand Schoemann what you mean. It is not up to me alone to decide this matter. Whatever the Sikh community and Dr.Birk will decide we will precede accordingly.” the present reporter replied. In those days use of confidential information in the American courts was under consideration for the US Government. Many articles and editorial were there in the newspapers. For example The Washington Post June 191991 an editorial named “Secret Trials” said.” It applies to all non-citizens even those who have entered legally lived here for de~ cades and have children and other close relatives who are citizens.
This is a political decision left to the Government and presumably it could include groups such as Kurdish nationalists Afghan rebels Sikh separatists sand the IRA. Does this sound like a proceeding in an American court? It is a nightmare that could allow the worst kind of justice. It is hard to see how anyone with any respect for the American idea of justice could support it.” With the blessing of the Sikh community Dr. Birk also decided that the issue was worth fighting for. The defence side mailed approximately 15O Letters (2A) and (2B) to various Senators and Congressmen. They in return wrote letters to the Justice Department.
In an appeal to the Bureau of Immigration Appeals (BIA) Adams mentioned that the Respondent (Dr. Birk) is a respected member of the Sikh community and that the Sikh community would vouch for Respondents good conduct upon his release. While discussing whether Respondent was impermissibly prejudiced by Government counsels representations at the Bond Hearing Adams said” Ira Frank acting as Government Trial Attorney on June 28-1991 claimed that he could easily prove that the Respondent was ineligible for relief under INA Sect.212(6) but refused to state the legal basis for this claim He apparently expected the Immigration Judge to accept the claim at face value based on Franks seniority with INS Since the Immigration Judge ignored and undersigned counsels demand that Frank back up his claim and failed to state what weight he was giving to the claim it appears that Franks ploy may have succeeded in influencing the Immigration Judges eventual bond denial. The underline issue is important since an alien ineligible for relief has lite incentive to appear at an immigration hearing and is therefore a flight risk. Under the circumstances it appears that Respondent was impermissibly prejudiced by Frank’s unethical actions.”
After more than 6 months of waiting the BIA still denied the bond but dismissed the confidential information. BIA said that their decision was mainly based upon their concern for the National Security.
The deportation case was also moving side by side Deportation was decided by the same Judge who decided the bond. Naturally if a person is not willing to release Dr.Birk on bond how can he set him free by giving a green card! What would then happen to National Security? Dr.Birk in his spare time used to refer to the law library. Once he wrote to his attorney stating “Mr. Adams this is total illegal and they cannot possibly do it according to Gomicka vs. INS (1982CA7) 681 F2d 501. This case law clearly and categorically points out that on and deportation are and should be treated separately.” Adams how: ever filed a motion for the refusal of Hon Judge McHuge but was denied. The reply to various appeals differs in contents but the bottom line of each one reads “ORDER: The appeal is dismissed”
At this point in time the Sikh community and Dr.Birk realized that our main concern was the use of confidential information by the Government Since that issue was not there preceding further was Rot worth waiting for even one day. The conclusion was that if the prosecutor was determined to use this veto power on the basis of National Security and relation with the Indian Government then let us with due respect agree to disagree with each other on this issue.
The Deportation procedure was then started The Sikh community in honor of Dr. Birk offered him a First Class ticket from the USA to UK. Dr.Birk respectfully declined the offer saying “Since the community thought of this it is more than enough for me.” The authority refused to accept the air fare from the Sikh community. Adams worked hard by writing various letters to the authority as shown in Letters (3A) (3B) and (3C). Finally while the defence was ready to appeal against this in federal court the authority agreed to receive Dr. Birks airfare. While leaving Dr.Birk donated the last balance of $200.00 in his prison account to the Disabled American Veterans!
Article extracted from this publication >> April 3, 1992
