Innocent but Guilty

An Indian scholar in the US faces over three decades in prison on an absurd charge. The story of a family’s battle for justice.

Dr Buddhi Kota Subbarao is not a man of few words. He is a scrupulous storyteller, who always starts at the beginning, maintains chronological order, and habitually fact-checks himself. Experience has taught this 68-year-old Supreme Court lawyer and former Indian Navy Captain, with a PhD in nuclear technology, the importance of covering every minute detail, of the power of technicalities, especially when it comes to the law. And it is precisely because of intricate details and indisputable facts that Dr Subbarao believes his son, Vikram S Buddhi, has been wrongfully convicted by an American court of threatening to kill former President George W Bush.

For several months now, and intermittently for the past three years, the case of Vikram Buddhi has featured in the International pages of several newspapers: ‘Desi arrested for threatening Bush’, ‘Threat to Bush, Indian Gets Bail’, ‘Terror Suspect’s Father Writes Again to Obama’. One headline after the other summarised various episodes in the curious tale of a gifted doctoral student who spent ten years pursuing PhD programmes in Pure and Applied Mathematics at Purdue University, Indiana, before suddenly morphing into a defendant in the case of United States of America vs Vikram S Buddhi. According to the US government, Vikram threatened Bush and others close to him through a series of Internet messages traced to Vikram’s university computer.

It’s too late to presume his innocence because Vikram was found guilty in June 2007; since then, he has spent more than two years in jail, and when he’s sentenced on 19 November 2009, the 37-year-old scholar faces up to 35 years in prison. So, sitting in their tiny flat in Vashi, a distant Mumbai suburb, his parents are hoping someone will notice that their brilliant introverted son hasn’t really done anything wrong.

The sentence will be the controversial end to a saga that first began on 16 January 2006, when Vikram was taken from his residence to be interrogated by members of the presidential protection agency, the Secret Service. According to the Criminal Complaint filed in the United States District Court, Northern District of Indiana, ‘On 12/13/05, a concerned citizen contacted Secret Service’s Dallas Field Office to report a subject, using the screen name ‘extremist_bush’, posted a threatening message directed towards President George W Bush, Vice President Richard B Cheney, First Lady Laura Bush, Second Lady Lynne Cheney, and Secretary of Defense Donald Rumsfeld on a Yahoo! Finance message board dedicated to Sirius Satellite Radio. The subject’s message was titled, CALL FOR ASSASSINATION OF GW BUSH.’

During a two-month-long investigation decoding IP Addresses, MAC Addresses, Address Resolution Protocols, and ARP Tables, the Secret Service tracked down the computers used to post the messages to terminals in Purdue University, and eventually they surmised the ‘subject’ of their investigations was Vikram. For two-and-a-half days they interrogated Vikram, then let him off, and filed a report clearly stating that he was not a threat to anyone. The matter should have ended there. But it didn’t. Ostensibly without a new motive, in the early evening of 14 April 2006, Secret Service agents arrested Vikram from his university apartment at Purdue.

Someone using various misspelt versions of the username ‘extremist_bush’ posted the controversial Internet messages over several months towards the end of 2005. Contrary to the US government’s contention that the messages threatened Bush and co, the messages, in fact, called upon Iraqis to avenge the war on their country. The posts are misguided, racist, and in appalling language, calling upon Iraqis to rape and kill ‘ANGLOSAXONS’ in a ‘TIT-FOR-TAT WAR’.

Dr Subbarao is adamant his son was not the author of the messages; the investigating officers reported that during interrogation, Vikram “admitted to posting the threatening messages… also admitted to deliberately using IP addresses other than his own in an attempt to conceal his identity”; Vikram didn’t deny it during his trial.

“Even if they can prove he wrote it, they do not have the ingredients required to prove he was a threat,” says Somnath Bharti, a Supreme Court lawyer who is familiar with the US justice system and canvassing for Vikram’s release. “They need to prove intent to act and pursuance of the intent. There is no act here, what has he done? All they have are lines on a webpage asking Iraqis to do something—you can’t put a man away for 35 years on that.”

Maybe not in New York, or Boston, or Los Angeles. But in Hammond, Indiana, there are limits to freedom of speech, especially if you’re just an immigrant Indian student. Indiana is a small but industrial state, which is socially and politically conservative. Though its name means ‘Land of the Indians’, Indiana is overwhelmingly White; in Hammond, where the trial took place, over 70 per cent of the population is White. And starting from the early part of the 20th century, Indiana has had a difficult, often embarrassing relationship with the White supremacist organisation Ku Klux Klan, which reportedly still operates various centres in the state.

It isn’t difficult to imagine how a Hammond judge and jury would have looked at Vikram, a mousey, serious, unemotional young man, whose personal experiences had taught him to rely only on himself. “He never talked about friends, he was a reserved person. He cared only about his studies,” says mother Syamala, who hasn’t seen him since he left for America in 1996. People who don’t know the grueling history of the Subbarao family may find it hard to understand how a son could have stayed away for so long. Any mother other than Syamala would have wondered if her son loved her at all. But Vikram, the middle child between an older and a younger sister, proved his merit as a considerate child through what was till 2006, the most traumatic experience of their lives.

Those who remember the ascent of Rajiv Gandhi and India during its Soviet phase may also recollect the story of a retired Indian naval captain, who was charged under the Official Secrets Act and Atomic Energy Act on suspicion of being an American spy. On 30 May 1988, Dr Subbarao, who retired from the Navy in 1987, was scheduled to fly to America on a consulting project (he was hired by Ceat, a company of the RPG Group to which Open belongs, as an advisor on a Ceat-AT&T communications project). “I was supposed to go for five weeks, one week for myself to show my PhD thesis to professors at MIT and Harvard,” remembers Dr Subbarao. But there were portentous signs from the moment he stepped outside his family home. “As I opened the door to leave, the lights went out in the building, my children and I walked down 12 storeys to get my suitcase to the gate,” he says. “I didn’t know then it was a sign that the light was about to go out of our lives forever.”

Dr Subbarao was arrested at the immigration counter; he wasn’t told why. At some point during his 90-day custody at a police station near the international airport, an officer told him the papers were calling him “deshdrohi”, a traitor.

The Maharashtra government claimed that a document in Dr Subbarao’s suitcase proved that he intended to sell information on India’s nuclear programme to the US. The matter reached such stratospheric levels of government that John Gunther Dean—America’s then Ambassador in India—was “confronted” by Prime Minister Rajiv Gandhi. In Dean’s documents at the Jimmy Carter Library & Museum, he admits an India-based American official was in charge of looking into India’s nuclear programme, but he doesn’t appear to know Dr Subbarao.

The document found in Dr Subbarao’s suitcase was titled ‘The Nuclear Power Plant Modelling and Design, Multivariable Control Approach’, which, as it turned out, was his doctoral thesis at the Indian Institute of Technology (IIT), Bombay. Vikram, who packed his father’s suitcase, had placed the work atop clothes and toiletries so his father would have it in good condition to show his MIT friends. It should have been simple enough to prove, but the law is also a matter of interpretation. After a year of incarceration without bail, Vikram insisted his father represent himself. “My son went on hunger strike till I agreed because he thought I could do a better job,” says Dr Subbarao, who began his study of Indian law with Criminal Procedure Code, a book Vikram brought to him in jail.

Dr Subbarao secured his own bail after some 20 months behind bars; the naval captain eventually won his case in the Sessions Court, and High Court—till the Supreme Court, tired of the Government’s persistent witch-hunt, confirmed his acquittal, and granted Dr Subbarao Rs 25,000 to cover his costs. It took five years. After his acquittal, Dr Subbarao took the Bar exam and now practises as a Supreme Court lawyer.

Looking back, he says he was a victim of the politics within India’s nuclear community. He believes he was targetted because Rajiv Gandhi secretly offered him the post of technical head of the nuclear submarine programme, and because Dr Subbarao was a constant critic of India’s sometimes – comical lot of nuclear scientists.

It’s unlikely that Vikram was unscathed by the trauma of his father’s incarceration and the ill treatment his family suffered as result. “People stopped talking to us. Since my daughters were both studying, it was always me and Vikram who went everywhere, arranging money, finding a lawyer. He had to grow up,” says Syamala.

Vikram was only 18, a first-year BSc Student at St Xavier’s College, Mumbai. After his BSc and an MSc from IIT-Bombay, Vikram went to Purdue to study mathematics. He was a good student there, and a celebrated teacher’s assistant. But, according to Dr Subbarao, an incident changed Purdue’s perception of Vikram and, he alleges, incited university authorities to point fingers in Vikram’s direction during the initial Secret Service investigation.

“One African-American student was expelled from the university because he was allegedly copying, but no action was taken against three White students who were also caught,” recounts Dr Subbarao. “Vikram wrote a letter to the university president pointing out that the [US] Constitution requires all students be dealt with equally, but the administrators were annoyed that an Indian student had the audacity to point out something that amounted to racial bias. They were waiting for something to use against him when the [Internet] messages issue came along.”

About a month after Vikram was arrested, Dr Subbarao got a call from John Martin, Vikram’s court-appointed lawyer. It was the first time the parents heard what happened to their son. “We don’t have any relatives in the US, so I was asked to come over as early as possible so Vikram could be released on a bond.”

It took Dr Subbarao over a month to get an emergency visa; he arrived in America on 7 June 2006, with less than ten days to go for the trial to begin. After two Indian mathematics professors—friends of Dr Subbarao—posted $10,000 upfront for a $100,000 bond, Vikram was released. The duo leased an apartment from the only landlord in Hammond who agreed to take them on. They had so little money that both often skipped meals, and spoke to Syamala in Mumbai just once a week, and even then for just a few minutes at a time.

Vikram’s trial itself proceeded so dubiously, it sounds like it was staged in the one-eyed justice system of a banana republic, not in the United States of America. When it began on 26 June 2007, Vikram, accused of threatening American leaders and their wives, found himself in front of conservative Judge James T Moody, who has been described as “a hard-ass” by people who know him and his court manners. As one independent American observer said, “It seemed like he wanted to see this guy behind bars.”

Case records show that Judge Moody declared in open court that he would not instruct the jury on the commands of the First Amendment, leaving 12 men and women without a clue of the rights of the defendant. Moreover, the Judge warned the Defense Attorney (DA) that he would embarrass the DA if he attempted to link facts in the case to instructions in the First Amendment. “If it was some homespun hate-monger, there would probably have been more leeway, but for an outsider to say these things, it inflamed people,” says the observer.

The US Supreme Court has unambiguously stated in the past that in the context of expressing strong political opposition, even abusive speech is protected under the Constitution’s First Amendment rights. Gregory P Magarian, professor of law at Washington University School of Law, is not connected with Vikram’s case, and he didn’t have enough time for an exhaustive study of the details, but his reaction to Vikram’s conviction was decisive: “I believe the statements that led to the conviction are protected speech under the First Amendment. This conviction is very disturbing; I think it reflects serious disregard of our constitutional liberties. The First Amendment is supposed to protect appalling speech, as long as that speech doesn’t embody a true threat.” It seems in a country with the world’s most liberal gun laws, where protestors who turn up at a presidential healthcare meeting with firearms and put up poster threats go unpunished, an Indian mathematician’s words are deemed more dangerous than a Neanderthal with a Smith & Wesson.

Vikram’s trial only lasted four days in 2007, and midway through it, he was expelled from Purdue. He spent the initial months of his incarceration in county jails in Indiana, where he was the victim of verbal and physical attacks. According to his case files, ‘Throughout October 2007, an inmate repeatedly harassed Mr Buddhi calling him a ‘crazy Arab’ and a ‘crackhead’. The inmate then approached Mr Buddhi as he waited for his food tray and said that people like him should not be in this country. The inmate then pushed Mr Buddhi’s head against a metal doorframe. Mr Buddhi suffered a one inch laceration to his skull.’ Vikram was transferred to the Metropolitan Correctional Center in Chicago, Illinois, where he’s still awaiting his sentence. In the American system, an appeals process can only be initiated after sentencing, which in this case has taken an unusually long time.

Earlier this year, a new lawyer, one Arlington Foley, was appointed to his case. Foley has so far had only a single conversation with Dr Subbarao. (Foley’s secretary Susie perpetually insists he’s not in the office; he doesn’t answer his own emails, she prints it out for him.)

Dr Subbarao’s one-year Emergency Visa wasn’t renewed, despite his application specifically stating that he wanted to stay in the country till his son was sentenced. On 21 August 2007, Dr Subbarao’s passport was confiscated before he could appeal the visa denial, and jailed for one week. Without his passport he couldn’t get a ticket home and the appeals and petitions he filed to stay immigration proceedings dragged on for two years, before he was finally deported to India on 8 August. His passport was returned in Mumbai at the Immigration counter.

“They knew I would do everything I can to help my son if I was there so they kicked me out,” he says. But at least he is back home with his wife after being separated for three years. Since the beginning of 2009, Dr Subbarao has written to everyone from President Obama to Minister for External Affairs SM Krishna, asking that his son get a fair trial. Not a pardon—a fair trial. Unlike the US, which once sent a former President to North Korea to get its citizens out, and fought for the release of American-Iranian journalist Roxana Saberi from an Iranian prison, the Indian Government seems to be hoping that the Vikram Buddhi issue will go away on its own. The Ministry of External Affairs (MEA) had an opportunity to bring up the case during Secretary of State Hillary Clinton’s India trip, but did nothing.

When Open spoke to MEA sources in August, they insisted that SM Krishna has asked US diplomats for a ‘clarification’. “When it comes to the security of NRIs, the Indian Government doesn’t care. Let’s see if they can make a few phone calls for an ordinary man,” says lawyer Bharti, who also met the minister on this issue. “They get all excited when Shah Rukh Khan is caught at the airport for two hours… but what about normal people?”

While the Government takes its time, NGO Delhi Forum has initiated an online petition and intends to organise a protest closer to the sentencing date. Lawyers who’ve looked at this case believe the American authorities will most likely deport Vikram—because if this outrageous case is posed with an appeal in front of the US Supreme Court, then it could find that the jury grossly misread the facts and/or that the judge misapplied the law, which could possibly cause international embarrassment.

Till then, somewhere in a jailhouse in Illinois, Vikram spends his time reading law books and teaching himself the vagaries of the US Constitution. Perhaps one day he may have to fight for himself. Like his father once did.

civil rightsinjusticelibertyspying