Or How I Learned to Stop Worrying

Convicted murderer Mohiuddin AKM Ahmed was deported from the United States and arrived in Bangladesh today. Mohiuddin’s arrival in Bangladesh was front page news in every Bangladeshi paper:

After leading a fugitive life of nine years in the United States Lt Col (retd) Mohiuddin Ahmed, a killer of the founding father of Bangladesh, Bangabandhu Sheikh Mujibur Rahman, was brought back to Dhaka yesterday from Los Angeles, as a US court rejected his appeal to stay.

Col Mohiuddin, one of 12 former army officers given death sentence for assassinating Sheikh Mujib and his family on August 15, 1975 through a bloody coup, was deported by the U.S. Homeland Security after a district court in California turned down his last appeal on June 14.

All the killers left Bangladesh after the coup and were absorbed in Bangladesh missions abroad following an understanding with the post ‘75 regimes.

Mohiuddin, 60, was a major at the time of the coup when most members of Sheikh Mujib’s family were killed and his three and half year old elected government was toppled.

Mohiuddin was tried in absentia and sentenced to death in 1998 during the second Awami League (AL) government led by Mujib’s daughter Sheikh Hasina, who was its Prime Minister.

While serving as a Bangladeshi diplomat in a Middle-Eastern country, Mohiuddin entered the United States on a visitor’s visa in 1996. Since then, he has fought a long legal battle to stay in the U.S.A.

Of the convicts, only four Lt Col (Retd) Syed Farooq Rahman, Lt Col (Retd) Sultan Shahriar Rashid Khan, Lt Col (retd) Mohiuddin and Maj (retd) Bazlul Huda are behind the bar. Aziz Pasha died in Zimbabwe, two are living in Canada, the remaining persons, including Lt Col Rashid are reportedly living in unknown places outside Bangladesh.

The death sentence against the convicts has not yet been executed as their appeals are still pending before the Supreme Court.

Mohiuddin was flown in to Zia International Airport at about 12:18 noon by a Thai airplane (TG-321) from Los Angeles. Two officials of the US Homeland Security escorted him to the airport. The US officials handed him to the airport immigration. They left Dhaka for Bangkok by the return flight at 1:20pm.

Airport Thana police arrested the repatriated convict under Section 54 of the CrPc on his return. Clad in bulletproof jacket and helmet in his head, he was whisked in a convoy to the Chief Metropolitan Magistrate (CMM) court amidst foolproof security at about 1:35pm.

Police produced him in the court of Magistrate Shafique Anwar along with a report. The report reads: Mohiuddin is a condemned fugitive in the case of assassination of Sheikh Mujib on August 15, 1975. The case was filed with Dhanmondi police station in 1996.

The court was also informed that he was also an absconding accused in the Jail Killing Case filed with Lalbagh thana in 1975 as well as in Abdur Rab Serniabat Killing Case filed with Ramna thana in 1996.

After hearing the case statements, the court ordered that Mohiuddin be sent to Dhaka Central Jail with “custody warrant”. He was put behind bar at Dhaka central jail at about 2:00pm.

Mohiuddin was deported after a District Court judge in California denied his last minute petition for a stay of deportation [Click here to view the judge’s decision.]. Mohiuddin was scheduled to be deported on June 2nd after losing his final appeal with the 9th Circuit Court of Appeals but filed a Habeas Corpus petition with the District Court in Central California on June 1st citing Congressman Jim McDermott’s private bill that aimed to give Mohiuddin a green card. The judge temporarily stayed his deportation until he had a chance to rule. Mohiuddin’s lawyers had contended "not only that the government’s execution of his removal order was improper, but also that on June 1, 2007, which was during Congress’ Memorial Day recess, staff members of the Department of Homeland Security ( "DHS" ) had misled congressional staff as to when Petitioner would be deported, thereby depriving him of the possibility that Members could intervene on his behalf." 

The judge (1) denied Mohiuddin’s claim that DHS misled Congress and as a consequence he was deprived possibility of relief, and (2) dismissed Mohiuddin’s claim that the government’s execution of the deportation order was improper.

On the second claim, that the deportation was improper, the judge ruled he had no jurisdiction to hear a challenge to a deportation order.

On the first claim, that DHS lied to or misled Congress, the judge ruled that Mohiuddin’s argument does not prevail on the merits. The judge wrote in his decision:

 As the government notes, Petitioner presents only extraordinarily thin evidence that DHS misled congressional staffers concerning the timing of his removal. His evidence is a declaration from an associate of his lawyer…

…even Petitioner himself acknowledges that some congressional staffers were told he could be deported at any time, and others were told his departure was imminent. Because both statements were true, Petitioner’s own evidence demonstrates it is virtually impossible that DHS misled congressional staffers at all, except on the remote possibility that some were intentionally kept out of the loop.

Moreover, contrary to Petitioner’s representation at the first oral argument, the Court has received no declarations from staffers or Members of Congress indicating they were misled.

…

Finally, even if a misrepresentation occurred, and even if it prevented congressional action that otherwise could have occurred, any injury that might have occurred has been mooted by this Court’s stays for further briefing. Because the House Judiciary Committee enacted its rules on June 6, 2007, it has now had a full week in which to act - with full knowledge of Petitioner’s predicament - but has declined to do so. Thus, Petitioner can hardly argue that any harm created by a misrepresentation remains ongoing.

The Court remains firm in this conclusion even after Petitioner’s contention at the second oral argument that "Congress is like the Titanic" and takes so much time to act that any misrepresentation could continue to prejudice Petitioner even now by delaying relief. Petitioner cannot have it both ways. He cannot claim that Congress could have been nimble enough to have helped him at the eleventh hour but for a DHS lie, but at the same time too sluggish to help him with a week’s notice.

Thus, for each reason set forth above, the Court concludes that Petitioner has no claim based on a misrepresentation from DHS to congressional staff.

The District Court judge did not accept Mohiuddin’s claim that DHS had tried to mislead Congress. Last week a Canadian reporter had written that it was the judge himself who "charged the Department of Homeland Security with misleading Congress, particularly those members fighting the deportation order."  This report that the judge had "charged" DHS with misleading Congress was repeated by other news organizations. It turns out, from the judge’s ruling, that the "charge" came from Mohiuddin, and not from the judge. In fact, the judge found that Mohiuddin’s claim was "extraordinarily thin".

 Thus ended Mohiuddin’s efforts to fight deportation. His 9 years in the United States as a fugitive from justice has now come to an end.

Mohiuddin’s return to Bangladesh is not a moment for celebration, but one of reflection. There is no joy in seeing murderers taken into custody - only sadness that the murders occurred. Justice has been delayed in this case, but nonetheless, it has now arrived. It is a solemn reminder of the frailty of human life and the capacity of some to take it with such ease.

Now Mohiuddin faces justice for murders he committed nearly 32 years ago. Mohiuddin’s return to Bangladesh is an important event in Bangladesh’s history. It is one important step in bringing to closure the national upheaval that began on August 15, 1975. One by one the killers of 1975 who had enjoyed impunity for so many years are being brought to justice.

With their return to Bangladesh comes tremendous responsibility on the shoulders of the current Bangladeshi government. It is the responsibility of being just in the execution of justice. Mohiuddin was successfully returned to Bangladesh because the US courts were confronted with overwhelming evidence from Mohiuddin’s trial. The US courts were able to satisfy themselves that the trial in Bangladesh was free and fair and that Mohiuddin had received due process. If his trial had been a show trial, his return to Bangladesh would not have occurred. Mohiuddin’s deportation demonstrates very clearly the importance of fair trials and due process. Now that Mohiuddin is in Bangladeshi custody, the current government needs to ensure that Mohiuddin’s remaining appeals to the Supreme Court of Bangladesh are handled as transparently as his trial in 1997. Mohiuddin received due process and a deliberate consideration of his petitions in the United States - that deliberate process must continue in Bangladesh.

In May of this year Congressman Jim McDermott made a speech in the House of Representatives. It was entitled "The Terrorist We Caught But Won’t Prosecute". In it he demanded that the Bush Administration hand over a terrorist caught on immigration charges to face his conviction in Cuba and Venezuela. He said:

Mr. Speaker, next week Luis Carriles is scheduled to stand trial for allegedly lying to immigration authorities when he entered the United States 2 years ago.

Most Americans have probably never heard of Carriles, but everyone should know the real case against him because it shows the double standard of the Bush administration and its so-called commitment to fight terrorism.

Carriles is being prosecuted for an immigration violation in America, but he has been convicted in other nations for acts of terrorism, including the downing of a commercial Cuban airliner over 30 years ago that killed 33 innocent people. He is a wanted international fugitive. The Bush administration knows this, but instead of turning Carriles over to the sovereign Governments of Cuba or Venezuela, as they have asked, we are going to get him on an immigration violation. [Emphasis added by me.]

You will note that this is the same Congressman who, again in May of this year, introduced a private bill in Congress, HR 2181, to give a green card to Mohiuddin AKM Ahmed, an international fugitive who has been convicted of murder in Bangladesh, with overwhelming evidence, and who has lost all his appeals in front of US courts and has been found to be involved in terrorist activity by the US 9th Circuit Court of Appeals. The Department of Homeland Security was all set to deport, or as the congressman puts it - was about to turn over Mohiuddin to the sovereign government of Bangladesh - until McDermott introduced his private bill in Congress.

In the case of Mohiuddin, the Congressman was ready to substitute his judgment over the judgment of multiple US courts, the US State Department, the Department of Justice, the Department of Homeland Security, the Bangladesh justice system, and the historical documentation. Congressman McDermott succeeded in postponing Mohiuddin’s deportation by one week. However, this week a District Judge once again ruled against Mohiuddin in his bid to try to use the private bill to stay the deportation. Once again Mohiuddin’s deportation appears imminent.

It is ironic that Jim McDermott should be talking about double standards.

The case against convicted terrorist Mohiuddin AKM Ahmed is overwhelming. The evidence presented at the Bangladesh trial was overwhelming. The case against him in the US courts was overwhelming. On the other hand Mohiuddin’s answers at various times to the United States government, in front of the asylum officer and in front of the Board of Immigration Appeals, were inconsistent and simply not credible. When Mohiuddin’s appeal came to the 9th Circuit Court of Appeals the judges had a fairly easy decision to make based on the evidence and Mohiuddin’s failure to counter any of it. The 9th Circuit Court of Appeals ruled against Mohiuddin’s petition for asylum on the grounds that he had engaged in terrorist activities and that he failed to prove that his trial in Bangladesh was unfair and that he did not receive due process.

In front of the 9th Circuit Court of Appeals, the respondent’s brief was filed on behalf of the United States government by Assistent Attorney General Peter Keisler and, Michael Lindemann and Ethan Kantor of the Office of Immigration Litigation of the Department of Justice. Click here to view the US government’s brief. It is a damning document and should be read from beginning to end.

When Mohiuddin’s son and supporters started commenting on my blog this week claiming that he did not get a fair trial, I pointed out that the 9th Circuit had rejected that argument. I had also posed two questions to them that Mohiuddin will find difficult to answer. Not surprisingly I have not received an answer from his supporters. The questions were:

• Where was Mohiuddin living between August 15, 1975 and November 3, 1975?
• Did Mohiuddin take a flight to Bangkok in early November 1975?

After the coup of August 15, 1975 the coup plotters, the army Majors including Mohiuddin, took up residence in the presidential palace surrounded by their tanks. They remained there until November 3, 1975 when they and their families fled Bangladesh by airplane for Bangkok, Thailand. Mohiuddin was among the Majors who fled Bangladesh on that flight. Later, some of these Majors, including Mohiuddin, where given diplomatic posts abroad as a reward for the killings and as a way to protect them. These facts are undisputed and well documented in newspaper accounts as well as historical documents.

At Mohiuddin’s asylum hearing, the issue of the infamous flight to Bangkok was raised by the US government. Mohiuddin’s response was not credible to say the least:

With the counter-coup imminent, and because the August coup plotters were " "afraid,'’ AR 889, President Mushtaque assisted Mohiuddin and the ""other officers who are now being named or accused or convicted,'’ in leaving Bangladesh, initially to Thailand, and then to various diplomatic assignments abroad. AR 890. These assignments were continued by General Zia who quashed the counter-coup and later assumed the presidency. AR 890; see AR 888-892, 2265. When asked on cross-examination how he ended up on the airplane with the coup plotters if, as he claimed, his own role was so limited, Mohiuddin replied that it was ""an order that I received,'’ and some officers ""just escorted me to the aircraft.'’ AR 897. [Emphasis added by me.]

The US government also relied on an advisory letter that the State Department sent to the immigration judge that stated that the trial was fair and that Mohiuddin received due process. The State Department’s letter was based on the assessment of the trial made by the U.S. Embassy in Dhaka who closely monitored the trial:

In an advisory letter to the immigration judge, dated October 18, 1999, the State Department conveyed the assessment of the trial made by the U.S. Embassy in Bangladesh, noting the Embassy’s belief that the ""18-month trial process, the acquittal of four of the defendants, and the independence of the High Court now considering the appeals, demonstrate that the defendants received due process.'’ AR 1495. The Embassy also noted its ""belie[f] that the prosecution presented credible evidence that [Mohiuddin] participated in the conspiracy that led to these multiple, politically motivated murders in 1975.'’ Id. Based on the Embassy’s trial assessment, the State Department highlighted several indicia of the trial’s fairness: (1) the trial was ""conducted under a public spotlight,'’ (2) it was ""conducted under normal Bangladeshi judicial procedures,'’ (3) ""defense lawyers agreed that the judge allowed them the opportunity to put forward the questions and arguments they wanted,'’ (4) the length of the trial was partly attributable to ""the judge’s tolerance for protracted cross-examination by the lawyer for Farook Rahman, the main defendant in custody,'’ and (5) ""[w]hile it could be argued that the accused could have obtained more effective legal counsel had they chosen to return,'’ the trial judge ""acquitted two defendants represented by state-appointed counsels.'’ AR 1496-97.

All the convictions underwent ""confirmation'’ review by the High Court ""to ensure that death sentences are supportable on a factual and legal basis.'’ AR 1497. In addition, the four defendants in custody filed their own appeals for simultaneous review by the High Court. Id. The State Department noted that one such appeal, by a defendant who was then-recently returned to Bangladesh by Thailand, was ""particularly relevant, since it also includes challenges to the in absentia prosecution.'’ [Emphasis added by me.]

Mohiuddin’s defense in court, as it has been in public, is that the trial was essentially a "kangaroo court". The US government specifically rejected these blanket claims in a detailed decision by the Immigration judge and in briefs:

Trials against nineteen accused coup participants, six in custody, and thirteen fugitives including Mohiuddin, commenced on March 13, 1997. AR 3243. Mohiuddin and the other fugitives tried in absentia had state-appointed defense counsel. Id. The trial lasted eighteen months and was ""comprised of 149 hearings, involving 61 witnesses, documentary evidence, 10 attorneys for the state, and 18 attorneys for the defense, and was monitored by the international press.'’ AR 144. It resulted in a 100-page judgment of the Bangladesh High Court on November 8, 1998. See AR 1495 (State Department report); AR 1517-1616 (High Court Judgment). The High Court convicted Mohiuddin and fourteen others of the August 1975 coup murders, and sentenced them to death. AR 1495. [FN3] Of the nineteen defendants, four were acquitted, including two defendants who were tried in absentia. Id.; see also AR *14 1275 (from State Department Country Report on Bangladesh, February 2001).

…

The State Department’s 2000 country report reflects that the High Court’s confirmation review resulted in a split decision in which the senior judge " "upheld the convictions and death sentences of 10 of the 15 previously convicted persons,'’ while the junior judge upheld all convictions and sentences. AR 1274. In the spring of 2001, a third judge ""reconfirmed the death sentences of… those originally sentenced, including [Mohiuddin].'’ AR 133. The State Department also observed that while there is ""no automatic right to a retrial if a person convicted in absentia later returns,'’ the absent defendants ""may not file appeals until they return to the country.'’ AR 1275.

Transcripts and summaries of the evidence and witness testimony taken in the Bangladesh trial, as well as certified copies of the High Court’s judgment and the State Department’s periodic assessments of the eighteen month trial were *16 admitted at Mohiuddin’s removal hearing. Mohiuddin attacked the evidence as ""absolutely biased,'’ ""spurious and false,'’ ""fabricated,'’ and ""a complete frame-up.'’ AR 516, 549, 633, and 668, respectively. He alleged that the criminal case against him was ""motivated by the personal vengeance of Prime Minister Sheik Hasina, backed by the political power of the ruling Awami League, to achieve a preordained verdict against him.'’ AR 148. Mohiuddin attempted to support this wholesale condemnation of the evidence and judgment against him by citing problems with the translations of the Bangladesh trial testimony supplied by the Bangladesh government. He claimed that the Bangladesh government ""selectively provided and even altered the witness testimony in its translations to intentionally mislead [the immigration] court.'’ Id.

Mohiuddin’s arguments were addressed and rejected in an exhaustively detailed decision issued by Immigration Judge Henry P. Ipema, Jr. on May 29, 2002, denying Mohiuddin’s applications for asylum, withholding of removal, and protection under the Torture Convention. See AR 130-72.

…

The immigration judge found that Mohiuddin lacked credibility when he denied any knowledge of the purpose of his assignment on the night of the coup. The Asylum Officer was ""a credible witness'’ who had not ""created the facts that placed [Mohiuddin] only 150 yards from the presidential residence,'’ he found. Id. Thus, Mohiuddin’s attempt to ""distance himself even further from the presidential residence, such as by stating he was not even sure where it was, demonstrated his lack of credibility,'’ the immigration judge ruled. Id.

[Emphasis added by me.]

The US government of course lays out the background of the murders committed by Mohiuddin and his co-conspirators:

This immigration case arises out of the events in Bangladesh on August 15, 1975, when two regiments of the Bangladesh military, led by a group of majors including the petitioner, Major Mohiuddin A.K.M. Ahmed, staged a coup d’etat in which they shot and killed the first president and founder of Bangladesh, Sheikh Mujibur Rahman (known as ""Mujib,'’ or ""Bangabandhu,'’ meaning " "Bangalis’ friend,'’ AR 1862). Bangabandhu led the independence movement in 1971 that created Bangladesh from what had been East Pakistan. AR 131, 2262. Beyond *5 overthrowing Bangabandhu, however, the coup participants massacred forty-five people including Bangabandhu’s wife, his two adult sons and their wives, Bangabandhu’s ten year-old son, and the pregnant wife and four grandchildren (ages 5, 10, 11, and 15) of one of Bangabandhu’s cabinet ministers. AR 1933-35. [FN1]

FN1. The record contains numerous accounts of the coup and massacre, among them the report of journalist Anthony Mascarenhas in his book, BANGLADESHA Legacy of Blood (Hodder and Stoughton 1986), a chapter of which the State Department attached to its May 22, 1997 advisory opinion in Mohiuddin’s asylum case. See AR 3242-60; see also id. at 1854-1959 (historical and political context on the coup); AR 2241 (description of the coup from Marcus Franda, BANGLADESH The First Decade (South Asian Publishers Pvt Ltd. 1982); id. at 2235-52 (causes and aftermath of coup).

 …

As ""chief martial law administrator,'’ AR 2265, Mushtaque [the man installed in power by the Majors] issued the " "Indemnity Ordinance, 1975,'’ which amounted to ""a comprehensive pardon for the men who had slaughtered the Founding Father of the nation and 21members *6 of his family.'’ AR 1943.

Mushtaque’s regime was short-lived, ending in a counter-coup less than three months later. AR 2265-66. Just prior to the November 1975 counter-coup, however, Moshtaque helped shuttle petitioner Mohiuddin and sixteen other coup leaders and participants out of the country to diplomatic assignments abroad. AR 888-94. ""For over 21 years no one was brought to trial for the murders.'’ AR 131.

In elections held in June 1996, the Awami League won a majority in parliament, and its leader, Sheikh Hasina Wajed - the daughter of slain President Mujib, spared by her absence from Bangladesh during the August 1975 coup - became Prime Minister. AR 132. Sheikh Hasina declared her intention to bring to trial the suspects in the August 1975 killings. AR 132. Criminal charges were subsequently filed against Mohiuddin and nineteen other alleged coup plotters and participants. Id.; see AR 1520, 3273. The State Department observed that while the decision to bring charges against the coup participants may have been related to Sheikh Hasina’s election, ""this need not, in our view, lead to the conclusion that the Government of Bangladesh is seeking to persecute this applicant.'’ AR 3243. The State Department noted that the Prime Minister had obtained her post in ""elections which were widely described as free and fair by a variety of international and domestic election observers,'’ and that the " "Bangladesh judiciary, *7 especially at the higher levels, displays a high degree of independence and often rules against the government, even in politically controversial cases.'’ AR 3243

The US government presented extensive evidence showing Mohiuddin’s active involvement in the coup. Mohiuddin’s changing stories of his own involvement did not help his cause or his credibility:

Extensive background materials detail Mohiuddin’s role in the coup, such as journalist Anthony Mascarenhas’s book, Legacy of Blood, based on interviews with the two principal leaders of the coup, Major Farook Rahman (""Farook'’) and Major Abdur Rashid (""Rashid'’), who admitted - indeed, celebrated - their organizing role in the coup. AR 1858; see also Pet. Br. at 22 (conceding that ""Farook and Rashid, admitted their participation in broadcast interviews as early as 1976′’). ""[A]ll the available evidence'’ demonstrates that the coup was ""conceived and commanded by 12 to 20 military and ex-military men, none of them above the rank of major.'’ AR 2241. Two regiments, artillery and ""Lancers'’ or tanks, respectively, were involved, with Mohiuddin commanding one of four Lancers squadrons. AR 1927-37. Mohiuddin and another major ""were assigned the task of knocking off Sheikh Mujib.'’ AR 3247. ""Their instructions were that they should kill Sheikh Mujib … [b]]ut were given latitude to proceed according to developments and, if necessary "wipe out anything en route.’ ‘’ Id. In executing the plan, the ""main killer team led by Majors Mohiuddin, Noor and Huda … blocked off the surrounding area.'’ AR *8 3249-50. ""Then the majors and the men went in.'’ Id. at 3250. As the coup leaders described it to Mascarenhas, Mohiuddin ""was one of the officers who stormed the President’s residence.'’ AR 3242. [FN2]

FN2. Multiple witnesses in the Bangladesh trial describe Mohiuddin storming Mujib’s residence, ""firing continuously.'’ AR 1534; AR 1549 (Mohiuddin’s Lance Sergeant, L.D. Bashir, testified he saw Mohiuddin " "entering Bangabandhu’s house [and] later heard the sound of gun shots and the screams of men and women inside Bangabandhu’s residence.'’); see also AR 1535-36, 1550, 1585.

By his own account, Mohiuddin’s role was less dramatic, though no less integral. In his written application for asylum, filed prior to the initiation of removal proceedings, Mohiuddin admitted that his ""task was to block the roads leading to Sheikh Mujib’s house from the north and the west to stop any outside interference.'’ AR 3270. At his asylum interview, he stated that the majors anticipated possible interference from the President’s special security forces (the Rakkhi Bahini) who were based ""one and a half miles from presidential palace.'’ AR 1078. His assignment, he said, was to ""[b]lock a road close to [the] president’s house.'’ AR 1073. Thus, he stated, he positioned his squadron on the road about ""150 yards from the residence,'’ id. at 1074, and was prepared to ""stop [the Rakkhi Bahini] by force if necessary.'’ AR 1079.

In denying Mohiuddin’s affirmative asylum request, the Asylum Officer concluded that he should be barred from asylum ""because he participated in the *9 persecution of others on account of their political opinion.'’ AR 1355 (Asylum Officer’s denial and referral for removal proceedings, August 29, 1997). ""Even without answering the allegations reported by the State Department'’ on Mohiuddin’s role in attacking the presidential residence, his " "own testimony revealed that he played a key role in the 1975 coup d’etat.'’ AR 1354. The Asylum Officer found that Mohiuddin admitted that ""he and all members of his squadron … were prepared to use force if necessary to accomplish the coup, thereby causing death, severe injuries to the President and his family.'’ Id. ""As a result of his support and participation in the coup d’etat, the President… his wife, young children and other close family members and trusted aides were killed,'’ she found. Id. She rejected Mohiuddin’s contention that he was ""only following orders,'’ noting that it " "did not relieve him of the responsibility for his role in the carnage,'’ and that Mohiuddin ""was not required to follow the order of the coup leaders, because he too was a major … the same military rank as … Maj. Farook and Maj. Rashid.'’ Id.

Following his asylum denial, Mohiuddin was placed in removal proceedings for overstaying his tourist visa. AR 4344. At a hearing on his renewed application for asylum, Mohiuddin downplayed his role in the coup further. He testified that he was ordered to participate in what he understood would only be a *10 ""peaceful coup,'’ and that the possibility of violence and killings " "simply did not strike my mind.'’ AR 735. At the same time, he asserted that if he had resisted the plan he would have been ""straightaway shot.'’ AR 485. Mohiuddin testified that he was assigned to block traffic on a road, but he claims he did not know the significance of this mission or the road’s close proximity to the president’s house. AR 814. He said he was not even sure where the president’s house was located. AR 860. Asked how he could be unaware of that location when soldiers from his own regiment performed routine security duties there, Mohiuddin denied knowledge of any such security duties. AR 864-66; compare AR 3250 (noting that ""Lancer sentries'’ at the president’s house " "quietly stepped aside'’ when their comrades approached). He also asserted that his earlier written statement that his mission was ""to block the roads leading to Sheikh Mujib’s house,'’ AR 3270, reflected information he learned only later. AR 817; see id. (claiming that only knowledge ""gathered over the last 21 years'’ informed him that his mission was to ""stop any outside interference,'’ AR 3270).

When confronted with the Asylum Officer’s report that Mohiuddin stated his job was to prevent the president’s security forces from disrupting the coup, Mohiuddin dismissed his prior statement as ""hypothetical,'’ and then refused during the hearing ""to answer hypothetical things.'’ AR 820.

*11 Mohiuddin repeatedly asserted that during and after the coup he had no ""active role other than obeying … orders.'’ AR 886; see e.g. AR 471, 481, 895. He said he remained at his post until ordered to return to base and resume his routine duties. AR 881. He said he only learned of the coup’s success from soldiers under his command who ""heard the radio.'’ AR 878.

Mascarenhas and others reported that after the coup, the group of majors went to the ""radio station'’ to announce the coup and broadcast declarations of allegiance to the new government. AR 1938; see AR 1938-41. Witnesses in the Bangladesh trial testified that Mohiuddin was among the majors at the ""radio center'’ on the day of the coup, and further place him ""in conference in the President’s office'’ later that day for the oath-taking ceremonies of the new president and cabinet. AR 1568, 1579.

Mohiuddin said nothing of these momentous actions at his asylum hearing. However, he did acknowledge his role in events leading to a counter-coup which took place less than three months after the establishment of the new government. The Library of Congress study observes that certain elements in the Bangladesh military ""were deeply resentful of the majors,'’ and that one of the ""Mujib loyalists, Brigadier Khaled Musharraf, launched a successful coup on November 3, 1975.'’ AR 2265. In Mohiuddin’s written asylum statement, he said that two of *12 General Khaled’s officers attempted to persuade soldiers in Mohiuddin’s regiment to join the counter-coup. AR 3271. Instead, Mohiuddin’s soldiers arrested the officers. AR 3271. Mohiuddin wrote: ""Brig. Khaled ordered me to release them or face dire consequence but I did not comply with his order.'’ AR 3271. At the removal hearing, Mohiuddin again downplayed his responsibility in the matter, asserting that his soldiers acted on their own, that he was ""sleeping at home'’ at the time, that he was called in to the regiment after the fact, and that he refused the Brigadier General’s order because he was simply ""trying to sort of understand what was going on.'’ AR 900; see AR 901. [Emphasis added by me.]

 The US government comprehensively refuted Mohiuddin’s arguments in court:

Substantial record evidence supports the Board’s denial of asylum and withholding under each of the three grounds of statutory ineligibility found by the Board and the immigration judge to be applicable to Mohiuddin. All three such bars derive from one set of facts: Mohiuddin’s participation in the slaughter of Bangabandhu, twenty-one members of his family, and tens of other individuals on the night of August 15, 1975. Mohiuddin’s challenge on this appeal is essentially two-fold. First, he argues that while he participated in the coup, he merely followed orders, and his involvement was not of a degree sufficient to bring him within any of the bars to asylum and withholding. See, e.g., Pet. Br. at 14 (asserting he should not be barred, because he was ""not involved in the planning and orchestration of the coup and did not participate in the killings.'’). Second, he argues that the massacre itself ""while ugly and regrettable,'’ was necessary to accomplish a valid political objective because it was ""directly related to revolution.'’ Pet. Br. at 17. In pursuing these arguments, Mohiuddin advances the *34 identical arguments and cases rejected by the immigration judge, and further rejected by the Board.

In repeating his arguments before this Court, however, Mohiuddin has made several legal and factual concessions which are devastating to his case. On this appeal, he declines to challenge the bulk of evidence from which the Board and immigration judge found probable cause to believe that he is guilty of the Bangladeshi murder charges. Thus, for example, he does not discuss or confront the background material detailing his role in the killings. Compare Pet. Br. at 11-30 with AR 1405-19 (1982 United Kingdom ""Commission of Enquiry'’ on the coup), AR 1854-1960 (Mascarenhas account in Legacy of Blood), AR 2235-67 (Franda and Library of Congress studies on the coup and massacre), and AR 1367- 90 (television interview with Majors Farook and Rashid). Nor does he challenge hundreds of pages of Bangladesh trial witness testimony and the High Court’s summary of the evidence, including accounts of his actions on the night of the massacre, such as blocking access to the presidential residence, storming the president’s house, and acting in concert with the other majors to install the new government. See AR 1462-74, 2872-3214 (translations, summaries and transcriptions of witness testimony in Bangladesh trial, including, e.g. at 2877, 3089, 3161, 3205 ""cross examination in favour of Major A.K.M Mohiuddin *35 Ahamed'’); and AR 1517-1616 (November 1998 Judgment of the High Court).

This has not always been the case. Mohiuddin mounted a challenge to this evidence at his removal hearing: (1) asserting he was misidentified in the High Court Judgment, (2) claiming the criminal case was solely the product of Sheik Hasina’s vengeance; and (3) charging that the translations and transcripts from Bangladesh were ""tampered, altered, and tainted.'’ See AR 148-56. Significantly, however - other than two cursory points addressed below - Mohiuddin has now dropped these arguments, as well as any attempt to confront the immigration judge’s methodical rejection of them. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988)(""It is well established in this circuit that claims which are not addressed in the appellant’s brief are deemed abandoned.'’).

Mohiuddin has similarly abandoned any contest regarding the fairness and independence of the Bangladesh judicial system that rendered and affirmed the judgment against him. He declines to criticize the State Department’s consistent endorsement of the integrity of Bangladesh criminal procedure and the independence of its judiciary. See AR 2480-2500, 1265-1316, 2663-96, 1426- 56, 3215-32, and 3375-88 (State Department’s Bangladesh Country Report on Human Rights Practices for 1996, 1997, 1998, 1999, 2000, and 2001). Nor does he challenge the State Department’s individual letter opinions on the fairness of the *36 Bangladesh proceedings, judicial independence, credibility of evidence against Mohiuddin, and the unlikelihood of mistreatment if Mohiuddin is returned to Bangladesh. Compare Pet. Br. 11-30 with AR 1494-1502, 3233-41, 3242-44. Again, it is well to note that in his removal hearing he raised objections to the foregoing evidence before the immigration judge, but now utterly fails to confront the immigration judge’s exhaustive and favorable review of the State Department submissions. Martinez-Serrano, 94 F.3d at 1259-60 (issues not raised and supported in petitioner’s opening brief deemed abandoned). [FN10]

FN10. These concessions and Mohiuddin’s due process argument, see Pet. Br. at 29, are mutually exclusive. Thus, the Board correctly rejected his due process argument. See AR 5.

Here, his sole challenge to the Bangladesh evidence consists of the argument, raised for the first time on this appeal, that the ""conviction record itself establishes that six people recanted their "confessions’ as being obtained under torture.'’ Pet. Br. at 12. However, this new argument is also barred because Mohiuddin did not raise it to the Board. See AR 74-78; INA § 242(d), 8 U.S.C. § 1252(d) (requiring exhaustion of remedies); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (""[f]ailure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter'’) (citation omitted). In any case, Mohiuddin *37 undercuts this argument by conceding the voluntariness of the accounts given by two such ""confess [ors]'’ - principle coup leaders Farook and Rashid. See Pet. Br. at 22 (conceding that ""Farook and Rashid, admitted their participation in broadcast interviews as early as 1976′’).

Regarding Bangladesh criminal and judicial process, Mohiuddin offers a one-sentence critique, asserting that he was ""reliant on defense counsel appointed and compensated by a hostile government.'’ Pet. Br. at 12. This implied charge of bias is overwhelmingly refuted, however, by: (1) the Board’s and immigration judge’s analysis and approval of the State Department’s opinions on that issue, see AR 2-5, 156-63 (immigration court analysis of Bangladeshi judicial process); (2) the State Department’s report that ""defense lawyers agreed that the judge allowed them the opportunity to put forward the questions and arguments they wanted,'’ and further report that the trial judge ""acquitted two defendants represented by state-appointed counsels,'’ see AR 1496-97; and (3) the Bangladesh High Court’s opinion, in its November 1998 Judgment, commending ""learned counsels for the accused,'’ for conducting the trial ""by detailed cross examination, arguments, and submissions even on behalf of the absconding accused,'’ see AR 1614. In sum, substantial and abundant record evidence supports the Board’s finding that the in absentia conviction, and the underlying evidence, provide probable cause to *38 believe that Mohiuddin is guilty of the crimes charged against him in Bangladesh.

Without the facts on his side, Mohiuddin attempts to argue the law. His arguments, rejected below, must also be rejected here. Regarding the persecution bar, Mohiuddin claims that he has not ""assisted or otherwise participated'’ in persecuting others within the meaning of INA sections 208(b)(2) or 241(b)(3) because his assistance was not "" "active, personal, and knowing.’ ‘’ Pet. Br. at 15 (quoting Ofusu v. McElroy, 933 F. Supp. 237, 239 (S.D.N.Y. 1995)). However, even apart from his abandoned challenge to the evidence demonstrating otherwise, by insisting to this Court that ""he decided to participate in the coup out of military duty and a concern for his country’s future and in response to appeals from his military colleagues,'’ he hardly disproves an active, personal, and knowing participation. Pet. Br. at 15.

On a different tack, Mohiuddin argues that the slaughter of children, household servants, and others having no conceivable function in government, was a ""harm'’ resulting ""incidentally from behavior directed at another goal, the overthrow of a government.'’ Id. at 16-17 (Rodriguez-Majano, 19 I. & N. Dec. at 814-15). The crux of his argument against both the persecution and nonpolitical crime bars is that his actions were justified by political necessity.

…

The Board and immigration judge cogently and properly rejected these arguments, finding no factual or legal basis for the view that August 1975 massacre in Bangladesh of children, mothers, and house servants was directly related to revolution, the only means by which to change the government, or a purely political act. See AR 4 (holding that Mohiuddin’s actions were ""grossly out of proportion with any political objective'’); AR 164 (distinguishing Izatula and Dwomoh, where Mohiuddin is not facing return either to the government he tried *40 to overthrow, or to a totalitarian government which would not accord him fundamental fairness at trial); id. (rather, unlike Dwomoh and Izatula, procedures are available to Mohiuddin in Bangladesh to ""adjudicate the charges and any defenses … including the defense that there was no other alternative to changing the government'’).

…

The record overwhelming establishes reasonable grounds to believe that Mohiuddin participated in the assassination of Bangladesh’s first president and the merciless slaughter of his family and other innocent people. [Emphasis added by me.]

The case against Mohiuddin is overwhelming. He has been convicted of these murders in a free and fair trial in Bangladesh. Instead of facing the charges Mohiuddin chose to flee the country and thus became an international fugitive. The United States government, which along with other foreign observers closely monitored the trial, presented substantial evidence in front of the 9th Circuit Court of Appeals. After reviewing the evidence presented, the 9th Circuit Court of Appeals rightly ruled against Mohiuddin’s petition for asylum and also ruled that he engaged in terrorist activities.

The facts are not, and never have been, on Mohiuddin’s side. He has tried to spin all the evidence against him as concocted. But the historical record shows otherwise. Even ignoring the overwhelming evidence presented at trials in the US and Bangladesh, Mohiuddin simply cannot explain away the fact that he, along with his co-conspirators, boarded a flight on November 3, 1975 and fled Bangladesh for Bangkok, Thailand. That flight and his subsequent diplomatic assignments should convince any reasonable observer that he was an active coup plotter. The "killer Majors" who orchestrated the coup in 1975 are very well known in Bangladesh. We who lived through the time saw their tanks, the tanks of the 1st Lancer Regiment, on the streets of Dhaka and around Bangabhaban, the presidential palace, during the summer of 1975. To those who know the events and know the case Mohiuddin’s defense that he was "sleeping at home" or found out about the killings when he "heard the radio" or that he fled Bangladesh along with the coup plotters because someone just "escorted me to the aircraft" simply make a mockery of common sense. It appears that the 9th Circuit Court of Appeals also found his absurd claims incredible and therefore ruled against him.

Last week I wrote a brief post about Congressman Jim McDermott’s introduction of a private bill, H.R. 2181, that aims to give a green card to convicted terrorist Mohiuddin AKM Ahmed. Today the leading Bangladeshi English language newspaper, The Daily Star, published an op-ed written by me about Congressman McDermott’s private bill.

The op-ed is reprinted below:

—–

Congressman McDermott’s support for Mohiuddin
Mashuqur Rahman

On May 31, the US 9th Circuit Court of Appeals issued the mandate that ended convicted killer AKM Mohiuddin Ahmed’s asylum appeals and made him deportable from the United States. However, the long saga has moved from the courts to the political arena after a congressman introduced a private bill to issue Mohiuddin a green card.

The rationale presented in the bill needs discussion both in the United States and Bangladesh; and it is time to explore whether the United States government should be actively sheltering a convicted murderer.

The Department of Homeland Security (DHS) was set to deport Mohiuddin to Bangladesh on or around June 2. However, Mohiuddin’s lawyers managed to get a temporary stay of deportation from a lower court judge until Tuesday, June 5. A US District Court judge has scheduled a hearing for Tuesday June 5 to consider a stay of deportation.

The hearing will not reconsider the asylum case since the lower court does not have jurisdiction and cannot overrule the Court of Appeals decision. Mohiuddin’s lawyers have, instead, asked the District Court to consider whether Mohiuddin could be deported while there was a private bill on his behalf pending in the US Congress.

On May 3, while the 9th Circuit Court of Appeals was still considering Mohiuddin’s last petition, a Democratic congressman from Washington State, Jim McDermott, introduced a private bill in the US House Judiciary Committee on his behalf. A private bill is a rare legislative procedure in the United States used to pass a law that benefits only one person rather than a class of individuals.

Private bills are sometimes used in immigration cases by members of Congress to grant relief to individuals who, because of an unusual set of circumstances, may be facing deportation from the country. For example, they are sometimes used to give relief to family members who would otherwise be separated if one member were to be deported, causing severe hardship to the rest.

Private bills rarely become laws. To become a law, the bill must first be passed by the US House Judiciary Committee, then by the US House of Representatives, then by the US Senate, and finally must be signed into law by the president of the United States.

The private bill introduced by congressman McDermott, known as H.R. 2181, aims to help Mohiuddin in a number of ways. First, it aims to stay the deportation order against him indefinitely. Second, it aims to release him from custody and bars the DHS from deporting him to Bangladesh, or to any country that has an extradition treaty with Bangladesh.

Third, it aims to grant a green card to Mohiuddin, which would allow him to get preferential treatment before all other green card applicants from Bangladesh. It also aims to grant him the card by reducing the number of green cards available to other Bangladeshis by one. Finally, it states that Mohiuddin will be allowed to seek asylum in any foreign country of his choosing.

Congressman McDermott’s bill also makes some extraordinary "findings." The bill claims that Mohiuddin is an "innocent Bangladeshi citizen." It also claims that the Bangladesh court "erroneously convicted Mr. Ahmed of murder and sentenced him to death." It further claims that the trial and conviction are "sufficiently suspect as to warrant the immediate intervention" by the US government to prevent his deportation.

However, the claims in the bill directly contradict the ruling of the 9th Circuit Court of Appeals. In its decision denying Mohiuddin’s petition the court wrote: "Ahmed failed to prove by a preponderance of the evidence that his in absentia murder trial and conviction in Bangladesh was fundamentally unfair and, thus, deprived him of due process of law. Therefore, the IJ properly relied on the conviction." Mohiuddin failed to convince the US court that his trial was unfair.

The court did not find that Mohiuddin was "erroneously convicted," or that the trial was "sufficiently suspect." It felt that it was proper to rely on the conviction in the Bangladeshi court.

Therefore, the congressman’s claim that Mohiuddin is an "innocent Bangladeshi citizen" is not supported by the facts, and is also not something that Mohiuddin was able to convince any court of.

Furthermore, the US State Department has stated that Mohiuddin"s trial — a high profile trial observed by the world community and human rights organizations — followed due process.

The bill also claims that Mohiuddin was merely manning a roadblock on August 15, 1975, and that he "had no knowledge of, nor did he support, the violent coup that erupted that night."

Again, this claim in the bill directly contradicts the 9th Circuit’s ruling. In the ruling the court wrote: "Ahmed is ineligible for asylum and withholding of removal for two reasons:

• Because he engaged in terrorist activity,
• Because he assisted or otherwise participated in the persecution of others on account of their political opinion. Even his own account of his actions established that he assisted or otherwise participated in the persecution of persons on account of their political opinion."
  Perhaps the most inexplicable part of the bill is its reference to the Indemnity Act. The bill states "…when Sheikh Hasina Wajed, daughter of the assassinated prime minister, came to power, and then broke her promise to respect the Bangladeshi constitutional amendment which provided immunity to officers involved in the 1975 coup. Rather, Sheikh Hasina Wajed orchestrated the repeal of the constitutional amendment."

The congressman, in the bill, seems to be advocating immunity for the murderers of Bangabandhu Sheikh Mujibur Rahman and his family. It is difficult to understand why a US congressman would suggest that repealing of a grant of immunity to murderers of children and pregnant women should be called into question.

Congressman McDermott’s bill is based on false or misleading information. It claims as facts the many arguments Mohiuddin and his supporters have been publicly making, but failed to prove them in US courts of law where facts and evidence count.

By introducing the private bill, congressman McDermott has staked his reputation on the word of a convicted murderer who has been found to engage in terrorist activity by US courts of law.

At a time when the United States is engaged in a global war on terror, a Congressional intervention on behalf of an individual deemed to have engaged in terrorist activity is an extraordinary step.

Given the political sensitivity of the bill, and its awkward position within the war on terror, it is highly unlikely that the bill will ever become law. However, for Mohiuddin to get a stay of deportation the bill does not have to become law.

If the House Immigration Subcommittee takes up the bill and requests a report from the US immigration authorities, it would result in a stay of deportation. All indications are that the Subcommittee has not taken up Mohiuddin’s private bill — if it had, a stay of deportation would have already occurred.

Without such action it will be an uphill battle for Mohiuddin’s lawyers to convince the judge at Tuesday’s hearing to order a stay of deportation. It is almost a certainty that the subcommittee chairwoman will be lobbied hard on behalf of Mohiuddin in the coming days.

Having lost his asylum bid in the US courts, Mohiuddin is now appealing to American politicians to continue to evade justice. American politicians, such as congressman Jim McDermott, are now confronted with a choice between the rule of law and the word of a convicted killer.

By introducing the private bill on behalf of Mohiuddin congressman McDermott may have bought Mohiuddin a few more days of evading justice. But at what cost?

Mashuqur Rahman is a Virginia-based blogger and a member of the Drishtipat Writers’ Collective.

—–

[UPDATE:

• Read my op-ed about Congressman Jim McDermott’s private bill.
• Read the brief submitted by the Department of Justice to the 9th Circuit Court of Appeals responding to Mohiuddin’s petition for asylum. It is a damning document that lays out Mohiuddin’s crimes.

]

Nearly 32 years after he committed his crimes, convicted terrorist Mohiuddin AKM Ahmed’s days of evading justice are coming to an end. His petition for rehearing and petition for enbanc hearing have been denied by the Ninth Circuit Court of Appeals. The Court denied the petition on May 23, 2007. The docket reads [PACER login required]:

Filed order ( Thomas G. NELSON, Eugene E. Siler, Michael D. HAWKINS, ): The petition for rehearing and the petition for rehearing en banc are denied. [6133233-1]  [03-74603] (wp)

He faces deportation to Bangladesh as early as May 31, 2007.

Representative Jim McDermott, Democrat of Washington State, has introduced a private bill in the House to try to prevent Mohiuddin’s deportation. The bill is currently referred to the House Judiciary Committee. The bill has no cosponsors. The bill, HR 2181, claims, after the 9th Circuit found him guilty, that Mohiuddin "is an innocent Bangladeshi citizen." The bill aims to do the following:

• stay Mohiuddin’s deportation indefinitely
• release Mohiuddin from custody
• makes Mohiddin eligable for permanent residence
• gives Mohiuddin and his family preferential treatment in the granting of permanent residence over all other applicants for permanent residence from Bangladesh
• if Mohiuddin is deported, he shall be permitted to seek asylum in a foreign nation

This appears to be Congressman McDermott’s Terry Schiavo moment. The Congressman should explain why he believes a convicted terrorist deserves permanent residence over all other immigrants who have been patiently waiting in line. The Congressman should also explain why he thinks Mohiuddin is innocent when all courts that have looked at Mohiuddin’s case, including the US 9th Circuit Court of Appeals, have found him to be duly convicted of murder and terrorism.

Mohiuddin, an former Bangladeshi army officer, of course is now returning to Bangladesh at a time when the political situation there might work in his favor. Nonetheless, the United States Congress should not intervene by passing a private bill on behalf of a convicted terrorist after the courts of the land have ruled. His guilt is not in doubt. 

Certainly, a convicted terrorist should not be given permanent residence in the United States or allowed to escape justice by going into exile.

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.

The Bangladesh desk of Amnesty International responded to an enquiry from Drishtipat, a Bangladeshi Human Rights organization, regarding their position on the deportation of convicted terrorist Mohiuddin AKM Ahmed to Bangladesh.

In response to the query from Drishtipat, Amnesty wrote:

Amnesty will not oppose the investigation of those accused of human rights violations, and the trial and conviction of those who have been found to be involved in human rights violations. However, such investigtions and trials should be informed by three main standards: that torture is not used to extract information; that trials are in accordance with international fair trial standards, and that the death penalty is not imposed as punishment.

In the case of Mr Mohiuddin Ahmed, his conviction to death is a very problematic issue and, on that ground, Amnesty will not be able to support his extradition. [Emphasis added by Drishtipat]

Drishtipat asked for further clarification on the question of torture and fair trial. Drishtipat was kind enough to forward their question and the response they received from the Bangladesh desk of Amnesty International to me via email.

Drishtipat wrote:

Just for clarification, do you believe that fair trial was used and torture was not used as a method to extract information — the first two standards you mentioned.

Amnesty’s Bangladesh desk responded with the following clarification:

We had raised our concern regarding allegations of torture made by Zubaida Rashid, as is reflected in the document I sent to you. We had not received serious allegations of torture from others, or serious allegation of use of unfair trail procedures. If such allegations are made, we will investigate them. Our main concern with regard to these cases is the death penalty, which Amnesty opposes at all times. [Emphasis added by me.]

The one allegation of torture came from Zubaida Rashid, the wife of Lt Col (relieved) Khandaker Abdur Rashid (one of the main coup leaders). The allegations were however never substantiated, but were of concern to Amnesty and other human rights organizations. According to the report from 1997 referred to above in the response from Amnesty:

One of the defendants, Zobaida Rashid, has alleged that she has been subjected to torture in police custody. Amnesty International urges the Government of Bangladesh to institute an independent and impartial investigation to establish the truth about these allegations. Should the allegations be substantiated, the government must ensure that those found responsible are brought to justice without delay.

…

Zobaida Rashid, wife of Lt Col (relieved) Khandaker Abdul Rashid was arrested from her home in Dhaka on charges of possessing her husband’s firearm and involvement in the killing of Sheikh Mujibur and his family members. Her lawyer argued that the weapons recovered had legally-obtained licenses, that she had not been involved in the assassination at all, and that she was being "held as a hostage by the government for securing the surrender of her husband" who is believed to have gone abroad.

…

In February 1997, Zobaida Rashid told the court that she had been forced by the police to sign a "confessional" statement under duress and withdrew that statement. She alleged that during her 9-day period in police custody in November 1996 she had been given electric shocks, was made to lie on a cold bare floor, and was denied sleep for prolonged periods. She was allegedly denied any medical treatment during this period. Zobaida Rashid was eventually released on bail on 3 April 1997 on order of the High Court. Her lawyer had argued that she needed treatment for her medical conditions in an "open atmosphere".

…

On 8 April 1997, police sources announced that the court dealing with the case had framed the charges against the accused. These were: conspiracy to kill former president Sheikh Mujibur Rahman along with his family and relatives, execution of the plan and attempts to conceal and destroy evidence. Five of the six prisoners appeared in court that day and pleaded not guilty. Zobaida Rashid - already released on bail - did not appear; her lawyer told the court that she was ill. Following several days of pre-trial hearings, the court set 21 April 1997 as the trial date after indicting the 20 alleged coup plotters. The judge told the defendants: "We are here to ensure justice of a murder case under the laws of the land and the accused will get maximum protection and facilities as far as the law allows." Each of the 14 defendants to be tried in absentia were believed to have been appointed a lawyer by the courts to ensure they were defended at the trial.

On the first day of the trial on 21 April, the trial was suspended after a "no confidence" application against the judge was moved by Zobaida Rashid’s defence lawyer. The High Court rejected the motion, saying it was not moved properly. Defence sources said they intended to move the application again.

…

On 4 May, Bangladesh’s High Court suspended all trial proceedings for one month pending the outcome of an appeal challenging the framing of charges against Zobaida Rashid.

On July 6, 1997 the High Court ruled that all charges against Zobaida Rashid should be dropped and the trial against the others continued after charges were dropped against her.

After the conviction and sentencing of Mohiuddin and his co-conspirators Amnesty released a public statement reiterating its stance against the death penalty, but also stating that Amnesty "believes that a continued determination to bring to justice perpetrators of human rights violations will not only enhance the promotion and protection of human rights in the country but also eliminate the need to deal with these at a later date."

Mohiuddin’s supporters, including Congressman Dana Rohrabacher, have asserted that he did not receive a fair t