ANOTHER CASE OF GUILTY UNTIL PROVEN INNOCENT

You can't go to jail in the USA without due process? Don't you believe it! Once you get into the hands of a U.S. government agency, it takes pretty heavy legal cannon to blast you free -- even when government agents are patently lying

After more than four years in jail, Ahilan Nadarajah will soon gain the freedom he sought when he fled Sri Lankan government forces that he said pistol-whipped him, forced his head into a plastic bag with gasoline and left him hanging upside down for hours. Since arriving in the United States in October 2001, Nadarajah has been detained on the same accusations that almost got him killed in Sri Lanka. He was suspected of being a member of the Liberation Tigers of Tamil Eelam, a separatist group listed as a terrorist organization by the U.S. State Department.

Nadarajah has repeatedly denied the claims and been exonerated by immigration judges who twice granted him asylum. Still, the government refused to release him, and he appealed to the San Francisco-based 9th U.S. Circuit Court of Appeals. On Friday, that court ordered Nadarajah's release, saying the government was violating federal law by holding him even though he wasn't criminally charged and couldn't be deported in the foreseeable future.

Nadarajah was expected to be set free in the next several days, his lawyers said. "I lost my time and my life, and I almost lost my mind, too," Nadarajah said Friday in a phone interview from the Otay Mesa detention center, located at the U.S.-Mexico border south of San Diego. "It's not fair. They put me in jail without reason." U.S. Justice Department spokeswoman Cynthia Magnuson said the decision was being reviewed but declined further comment. It wasn't immediately clear whether the government would appeal the court's decision.

In Friday's ruling, the court relied on a 2001 Supreme Court decision that immigrants must be freed if their deportation is "no longer reasonably foreseeable," a period interpreted by many legal experts to be about six months. In a tersely worded 37-page decision, Judge Sidney R. Thomas said Nadarajah's detention is "unreasonable, unjustified and in violation of federal law." The decision went on to call the government's reading of a past decision, which it claimed allowed for prolonged detention, as "patently absurd."

Nadarajah's attorney described the case as one of the Bush administration's repeated violations of immigration law in the name of national security. "He should have been out a long time ago," said Ahilan Arulanantham, a lawyer with the American Civil Liberties Union. "The government got it completely wrong about whether he was a terrorist, and overreached for detention powers Congress never granted."

Nadarajah, who turns 26 on Wednesday, started having problems in the mid-1990s. An ethnic Tamil, he worked as a farmer with his family in the Jaffna peninsula in northern Sri Lanka, an island of 20 million off the southern coast of India. In 1995, the Sri Lankan army bombed the area, forcing the family, including Nadarajah's two brothers and sister, to relocate about 37 miles away. Nadarajah's older brother died during the attack. When they returned 18 months later, the family's house was being occupied by the army, and Nadarajah was accused of being a member of the Tamil Tigers. Before a 2002 cease-fire, that group had fought for an independent state for Tamils, an ethnic minority in Sri Lanka. Nadarajah was then beaten and jailed, only getting out when his mother bribed an army commander, the court's ruling said. Over the next couple years, Nadarajah was repeatedly jailed and tortured.

Getting a passport and exit visa from a smuggler, Nadarajah traveled through Thailand, South Africa, Brazil and Mexico before getting picked up on the California border on Oct. 27, 2001. "That's why I came to the United States, to save my life," Nadarajah said. "If I go back to my country, I'll get tortured again and maybe they will kill me." When Nadarajah applied for asylum, the government opposed his application on the grounds he was affiliated with the group. Despite the opposition, an immigration judge found Nadarajah's testimony credible and granted him asylum in April 2003.

The government appealed to the Board of Immigration Appeals, which agreed to reopen removal proceedings. In June and August of 2004, a "special agent" presented the government's case, based on State Department information and interviews with Sri Lankan experts. The testimony included an informant's claim that Nadarajah and a female detainee and Tamil Tigers member had made a phone call from the detention facility in May 2003, allegedly ordering that someone in Canada be killed.
Asked how they could have made a call together at a gender-separated facility, the agent answered: "'I could only say that's what I wrote. I mean I, I don't know,'" the ruling said.

Nadarajah's asylum was granted a second time, and his lawyers filed for parole. That was denied by the San Diego Immigration and Customs Enforcement office, and later by the Southern District Court of California. Nadarajah is anxious to be free. He wants to improve his English - which he learned in jail after arriving without speaking a word - go to college and get some "good food." "I'm tired of this place," said Nadarajah. "I want to be outside, you know? But this was worth it because it saved my life."

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