Or How I Learned to Stop Worrying

Convicted terrorist Mohiuddin AKM Ahmed‘s website, Freedin.org, states that the Ninth Circuit Court of Appeals stayed Mohiuddin’s deportation order on March 29, 2007:

"On Thursday afternoon, March 29th, the 9th Circuit Court of Appeals in San Francisco CA, issued an order temporarily stopping deportation. This action effectively stops Din’s deportation to Bangladesh until further notice but we fully expect Din’s deportation could happen at any time. "

That is not exactly what happened.

I have acquired the Ninth Circuit Court of Appeals Docket [pdf] for Mohiuddin’s case. According to the docket, the following happened:

1. On February 23, 2007 the Court denied on the merits Mohiuddin’s petition for review of his deportation order.
2. On March 19, 2007 the Court prematurely ordered the mandate (to allow for deportation). A mandate is supposed to be issued seven calendar days after the 45 day period to file a petition for rehearing has expired. That is, the mandate was not supposed to be issued before April 16, 2007.
3. On March 29, 2007 the Court recalled the mandate that was prematurely issued.
4. On March 30, 2007 Mohiuddin filed a petition for panel rehearing and a petition for rehearing en banc.

The original deportation order was stayed by the Court, without opposition from the Justice Department, on July 22, 2004, pending review of the case. According to the stay order, "Pursuant to 9th Cir Gen Ord 6.4c, the temporary stay of removal continues in effect until issuance of the mandate, or further order of the court."

The premature issuance of the mandate on March 19th had made Mohiuddin eligible for removal from the United States. Since Mohiuddin filed the rehearing petition on March 30, the original (July 22, 2004) stay of his removal order continues in effect until seven days after the Court’s decision. As is very likely, if the Court decides not to grant a rehearing, the stay of removal will expire and Mohiuddin will likely be deported a week thereafter.

Click here to read the entire docket.

Today papers in Bangladesh are reporting that the US Ninth Circuit Court of Appeals will decide on convicted terrorist Mohiuddin AKM Ahmed‘s deportation order within the next few days. It appears that Mohiuddin filed a petition for panel rehearing  or a petition for rehearing en banc  with the Court after a three judge panel unanimously denied his petition for review on February 23, 2007.

When the Ninth Circuit Court of Appeals denied Mohiuddin’s petition to review the deportation order against him, Mohiuddin had 45 days to file a petition for rehearing (or rehearing en banc). He apparently filed this petition for rehearing on March 30. Unless the Court decided to grant a panel rehearing or a rehearing en banc, Mohiuddin’s deportation order will become effective seven days after the expiration of the 45 day window to file a petition for a rehearing – that is, on April 16, 2007:

The judgment (or decision) is entered on the docket by the clerk after he or she receives the court’s opinion or upon the court’s instruction (where judgment is rendered without opinion). FRAP 36 (Entry of Judgment). A petition for rehearing or petition for rehearing en banc may be filed within 45 days after entry of judgment, unless otherwise specified by the court or local rule. FRAP 35 (En Banc Determination) and FRAP 40 (Petition for Panel Rehearing). Unless the court directs otherwise, the mandate will automatically issue seven calendar days after the time to file a petition for rehearing expires, or seven calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41.

By filing a petition for rehearing, Mohiuddin was able to temporarily stay the February 23 decision of the Ninth Circuit. That stay is automatic – in other words, the Court did not need to order a stay of its decision:

The timely filing of a petition for rehearing or rehearing en banc stays the mandate until the court decides the motion, unless the court orders otherwise. FRAP 41(d)(1). A stay of the mandate, however, does not automatically stay a person’s removal from the United States.

If the Court denies his petition for a rehearing, he will be subject to deportation seven days after the order or April 16, whichever is later.

Although any party in the case can file a petition for a rehearing, the Court rarely grants such a rehearing:

After a court of appeals renders a decision, any of the parties may ask the court to reconsider its decision – this is called a petition for rehearing. See Federal Rules of Appellate Procedure (FRAP) 35 and 40. The courts rarely rehear cases and will do so only when (1) there was an error of fact or law in the opinion or (2) the opinion failed to consider an important argument.

Parties can seek panel rehearing, rehearing en banc or both panel and en banc rehearing. Panel rehearing means that only the panel of three judges that issued the original decision reconsiders the case. Rehearing en banc means that the full court (or an en banc panel) reconsiders the case.

In order for the Court to grant Mohiuddin a panel rehearing (by the same three judge panel), Mohiuddin must show in his petition that the judges made an error in the law or that the judges overlooked a point of law or fact:

Petitions for panel rehearing “must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.” FRAP 40(a)(2).

In order for the Court to grant Mohiuddin an en banc rehearing, Mohiuddin has even a higher hill to climb:

Petitions for rehearing en banc will only be granted when it is necessary to secure or maintain uniformity of the court’s decisions or when the case involves a question of exceptional importance. FRAP 35(a). The petition must begin with a statement that either:

1. the panel decision conflicts with a decision of the U.S. Supreme Court or of the court to which the petition is filed (with citation/s to the conflicting case/s) and consideration by the full court is necessary to ensure the uniformity of the court’s decisions; or
2.  the proceeding involves at least one “question of exceptional importance,” which must be succinctly stated. (An example of a question of exceptional importance  may be an issue on which the panel decision is inconsistent with the binding decisions of other circuit courts that have ruled on the issue.)

FRAP 35(b).

Given that the February 23 decision of the Court was unanimous, it is unlikely that Mohiuddin will be granted an en banc rehearing. There does not seem to be any "question of exceptional importance" in this case – it is a straight forward deportation case. His other recourse for a en banc rehearing is to show that the decision conflicts with Supreme Court decisions – highly unlikely since the court relied on earlier decisions of the Ninth Circuit as well as Supreme Court precedent.

Mohiuddin’s best chance for a rehearing is a panel rehearing with the same three judge panel. Here, Mohiuddin will have to show that the Court misapplied the law – a tall order given that the decision was unanimous.

It seems likely that Mohiuddin’s days as a fugitive are coming to an end. It is fitting that a man who showed blatant disregard for the law by acting as judge, jury and executioner should now face justice with full due process of law.

Mohiuddin AKM Ahmed was one of a handful of junior officers, mostly majors and a few colonels, of the Bangladesh army who, on August 15 1975, killed Sheikh Mujibur Rahman, the president of Bangladesh, and nearly all of his family, including pregnant women and Sheikh Mujib’s 10-year old boy. For the next three months the majors and colonels barricaded themselves in the presidential palace with the man they appointed the new president of Bangladesh. They were forced into exile on November 3, 1975 and fled to Bangkok, Thailand.

One of the leaders of the gang of cold-blooded murderers was Liuetenant Colonel Farook Rahman. He was interviewed in exile on May 30, 1976 by the Sunday Times. In the interview Farook takes credit for the killings of August 15 the previous year. It is a fascinating look into the mind of a killer as he takes pride in the murders and offers his justifications for the killings.

The Sunday Times article that contains the interview is a much sought after document. This week I visited the Library of Congress and copied the article from the microfilm archives. Click here for a pdf of this historically important article as it appeared in the newspaper on May 30 1976.

I have transcribed below the entire article for the convenience of the reader. The title of the article is "I helped to kill Mujib, dare you to put me on trial?":

IN THIS remarkable article, the man who engineered the killing of the "father" of Bangladesh, Sheikh Mujibur Rahman, in August last year, challenges the present regime to put him on trial for murder. The man, Lieutenant Colonel Farook Rahman, accuses the present regime, led by General Ziaur (Zia) Rahman of betraying a movement that considered reform so vital that it killed the state’s founding father in an effort to achieve it. The article inevitably gives only one view of the crisis but it is crucial to understanding events in that tortured country.

 "Let the Bangladesh government put me on trial for the assassination of Sheikh Mujibur Rahman. I say it was an act of national liberation. Let them publicly call it a crime.

I engineered the coup of August 15 last year to put the brakes on my country’s headlong descent into hell.

I ordered Mujib’s killing because I had personal knowledge that although he was head of state, he set free and protected his party henchmen of the Awami League, who, in the town of Tongi, near Dacca, raped and murdered a young bride and laughed in our faces when we tried to bring them to justice.

I ordered Mujib’s death because he also ruthlessly killed some of his political opponents. Let the present government deny it, if it can, that it has evidence of this.

In law such a man is considered to be accessory both before and after the fact of murder. But in Bangladesh there was no law except Mujib’s word. I wanted to re-establish the sequence of crime and punishment.

Sheikh Mujib had to die for four other reasons.

First, because of ill-conceived personal power he needlessly enslaved a nation which had willingly made him its father. Mujib’s politics of deceit put brother against brother when he should have united the people. He crushed the Press. He reduced the national assembly to a rubber stamp for his personal whims. He sent thousands of people to jail because he would not tolerate dissent.

Secondly, Mujib and his family, his Awami Leaguers and corrupt officials plundered the country while the rest of the people starved.

Thirdly, Mujib’s corrupt and worthless administration prostituted my country to foreign powers. By forever holding out a beggar’s bowl he made us an object of international contempt.

Last, but not the least, Mujib betrayed his faith, Islam, which is the religion of my people and the one thing which can give the ideological thrust to our forward march.

Thus Mujib, in the short space of 4 1/2 years, almost destroyed the Bangladesh for which his own admission 2 million people lost their lives in 1971 liberation struggle.

Since I had no ambition for personal power, I agreed last August to a suggestion by my colleague, and brother-in-law, Colonel Abdur Rashid, that Khandakar Mushtaque Ahmed, a senior politician, be made president to replace Mujib. He was given the task of national reconstruction. At the same time I personally insisted that Major General Zia be appointed chief of staff of the army. I thought he could unite and build up the force which had not only been humiliated by Sheikh Mujib but also had suffered terrible neglect at his hands.

In accepting the jobs we offered them, Mr Mushtaque and General Zia endorsed our reasons for the change. But they failed to follow through.

For his own reasons which were not known to us, Mr Mushtaque, during his presidency from August to November last year, kept putting off the economic, social and political reforms that were required. We gave General Zia timely warning of a counter-coup by officers immediately under him, but he did nothing to squash it. As a result Mushtaque and Zia were forced to resign on November 3 while we went into voluntary exile to prevent a civil war.

Four days later when our troops awakened to the power struggle among the officers, they revolted and reinstated General Zia as the army chief in the hope of restoring the direction we set on August 15. Since then, they have been victimised for their loyalty and patriotism while those responsible for the counter-coup on November 3 were rather curiously released from jail last month without benefit of court martial. We were forced to remain out of our country "at the pleasure of the government."

As we have been accused of inciting indiscipline in the armed forces, let me set the record straight.

Colonel Rashid and I left the country last November and remained out of touch, but since then there have been at least four major incidents of men refusing to obey their officers’ orders. The first was in Dacca, second in Chittagong on February 28. The third a few days later in Bramanbaria and the fourth in Dacca – all before Rashid and I returned last month on a brief visit to discuss our future.

I went to Borga (north of Dacca) on April 29 to meet my troops at General Zia’s request. Next day Col Rashid was arrested and sent out of Bangladesh. I returned to Dacca on May 9 against the wishes of my troops, who suspected a similar trick would be played on me. I had been assured by senior officers that General Zia only wanted to talk to me, and that I would be allowed to return. In the event these assurances were worthless, Zia did not talk to me, but had me expelled plain.

Some newspapers have suggested I was plotting a coup to remove Zia. I refute this utterly. I could have killed him in his office as I has a revolver in my pocket for self-defence, but I had no intention of killing him. I only wanted to give him another chance to redeem his word before the troops.

The tragedy for the people of Bangladesh is that, apart from the dissolution of the assembly and a reduction in the price of rice – due mainly to the people’s own action against smugglers – nothing has substantially changed. The repression continues, with the police replacing Mujib’s Awami League as the instruments of terror. The Press remains gagged.

The grab for personal power grows noticeably stronger each day as the promise of early elections fades. Islam is still denied its rightful place in the life of the nation. Mujib’s ghost lives in his successors, first Khandakar Mushtaque Ahmed, and now General Zia. Neither has basically altered the patterns he set.

The danger to my country lies in the fact that Zia and his commanders cannot or will not come to terms with the forces of change. The people want a change but they are silenced by martial law. So the common soldier who is well-grounded in the common earth of Bangladesh speaks for them. In the absence of democratic expression (it seems there will be no elections) the troops constitute the most representative assembly in the country today. They are at variance with the senior officers who are pulling the other way. The government calls this "mutiny." If there is to be no change, why did Mujib have to die? Let Zia get on with my trial. The people will give their verdict."

There was such bravado and righteousness from the leader of the killers. Farook claimed in the interview that he wanted to "re-establish the sequence of crime and punishment." Yet when Farook, Mohiuddin, and the others were finally brought to trial, all that bravado evaporated as they were subjected to the "sequence of crime and punishment". Farook, who was present at his trial, claimed he was not the killer, despite overwhelming evidence to the contrary. Gone was the bravado of yesteryear when the law finally caught up with him and his cohorts. He, like Mohiuddin now, claimed innocence. They both claimed a foggy memory, blamed someone else, and claimed to be in the wrong place at the wrong time. He had a hard time explaining away the inconvenient fact that he and his fellow majors ruled the country from August to November 1975 – and the fact that they could not stop bragging about their "heroism" in rescuing Bangladesh from "hell" by killing Mujib and his family. The murderers who showed so much bravado while they had all the guns now show themselves to be cowards.