Pratheepan Thavaraja is a Sri Lankan native. He was the principal procurement officer for the Liberation Tigers of Tamil Eelam (“LTTE”)—a group founded in 1976 dedicated to establishing an independent state for the island’s Tamil minority.
LTTE was labeled a foreign terrorist organization by the U.S. State Department in October 1997.
A nearly three decades old conflict, launched in 1983, between the Sri Lankan government and the LTTE was one of the longest running civil wars in Asia. In 2009 the government mounted a fierce year-long military offensive against the LTTE, which claimed the life of its leader Vellupillai Prabhakaran, after which the government claimed victory. Human rights groups accused both sides in the conflict, which claimed nearly seventy thousand lives, of human rights violations—abductions, extortion and use of “child soldiers.” The LTTE pioneered the use of suicide belts.
In June 2010, we reported about a 6-3 U.S. Supreme Court decision, Holder v. Humanitarian Law Project that upheld a key anti-terrorism law that makes it a crime to provide “material support” to designated groups like LTTE.
“Material support of a terrorist group’s lawful activities facilitates the group’s ability to attract ‘funds,’ ‘financing’ and ‘goods’ that will further its terrorist acts,” Chief Justice John Roberts wrote for the majority. “It also importantly helps lend legitimacy to foreign terrorists groups—legitimacy that makes it easier for those groups to persist; to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”
That brings us to Pratheepan Thavaraja who was detained in Indonesia and extradited to the U.S. in 2007. In June 2009, the year of defeat for the LTTE, Thavaraja pled guilty in U.S. District Court for the Eastern District of New York for conspiracy to provide material support for the LTTE and conspiracy to bribe public officials. He was sentenced to 108 months’ imprisonment, a significant downward departure from the U.S. Sentencing Guidelines range. The Government was displeased with the sentencing, claiming on appeal to the Second Circuit Court of Appeals that the sentence was “unreasonably low.”
The trial record in Thavaraja’s case revealed that while he was LTTE’s procurement officer between 2002 and 2006, he purchased at least $20 million worth of “military-grade weapons,” such as anti-aircraft guns, rocket launchers and explosives. These weapons were matched through serial numbers found in a cache of weapons discovered by the Sri Lankan government. The record also disclosed that Thavaraja “played a role” in a scheme to bribe State Department officials to have LTTE removed from the department’s foreign terrorist organization list.
In imposing a downward departure sentence, the trial court took note of Thavaraja’s personal background. He was born in a Tamil neighborhood in Sri Lanka in 1974, and was reared during the height of the bloody civil war, often subjected to violence (bombings and intimidation). He attended a hometown high school until it was destroyed by a bomb when he was 14 years of age. These kinds of military attacks forced him and his family to frequently flee to refugee camps only to return to their hometown to find scores of people dead and buildings destroyed. When he was 21 years of age, Thavaraja moved to England where he was granted “political refugee status.” He attended school, earning a bachelor’s degree in engineering and a teacher’s certificate. He was a college lecturer in Mansfield, England for two years. But after seven years as a political refugee, Thavaraja returned to his parents’ home in Sri Lanka.
The trial court conducted a sentencing hearing in September 2012. The court determined, under the Guidelines, that the maximum sentence it could impose was 240 months. Before sentencing, Thavaraja addressed the court:
“This has been a long road for me and my family …. I [admired] the United States for the fundamental principles: freedom, justice, equality … liberty, peace and Democracy. I wanted these fundamental principles for my people to live as an equal citizen in our own country in Sri Lanka.”
“There is not a single day I have not thought about our people back home,” he continued. “They are struggling for their freedom and their future. They still don’t have their freedom. I love my motherland very much. I never felt that I will ever be separated from my motherland the same way I will never be separated from my mother. Now, the reality is that I don’t know I will ever be able to go back to my motherland; to feel the freedom or to see my mother, to feel her love for me. This is a permanent punishment for me for the rest of my life at this point.”
“Terrorism” cases are not always as simple as “lock ‘em up and throw away the key.” Determining an appropriate sentence that serves all the penological, political and social interests is a difficult, often impossible, task. That was evidenced by the observations made by Judge Raymond J. Dearie during the Thavaraja sentencing hearing:
“I will not miss this case because it’s given me some of the most difficult and, in many ways, loneliest moments of my career trying to figure out a rational, reasonable sentence,” the judge said. Saying the case was unusual, Judge Dearie made a poignant observation that the case carried “a banner of terrorism and yet involves people who certainly pose no direct threat to the United States.” Yet the judge was forced to deal with the reality that “these folks … face severe sanctions here in the United States because we don’t want to underwrite or care to underwrite terrorists activities anywhere in the world.”
Judge Dearie then pointed to mitigating factors in the Thavaraja case. He said the defendant was “motivated” not by “power” or “self-aggrandizement,” but the desire “to help the Tamil people … It’s beyond me to make sense of the situation in Sri Lanka …” The judge then listed these other mitigating factors: 1) Thavaraja had already been incarcerated for a “lengthy” period of time; 2) he had been separated from family and girlfriend; 3) he had been “a very positive, model inmate;” 4) he had received letters from other inmates thanking him for the educational help he had given them; and 5) he would most likely be deported upon completion of his sentence and face possible retribution upon his return to Sri Lanka.
That said, Judge Dearie could not escape the fact that Thavaraja’s “function [in procuring arms for the LTTE] was critical and involved … procurement of deadly merchandise, almost inevitably used to injure, murder, maim, not only military but civilians.” This inescapable fact prompted the judge to sentence Thavaraja to 108 months for the material support charge and 60 months on the bribery conspiracy charge. As required by the Guidelines, Judge Dearie had to explain for the record his variance from the Guidelines’ recommended sentence:
“This Court is called upon to make a difficult judgment in fashioning an appropriate and reasonable sentence. The defendant is a 37-year-old, educated Tamil who has never been to the United States, but was extradited to this country following his January 2007 arrest in Indonesia. He has no criminal record and has been in custody ever since.
“The defendant admits to serving as a principal procurement officer for the LTTE arranging for the purchase of weaponry and technical equipment by and through others, many of whom are co-defendants. Unlike most co-defendants he remained in Sri Lanka where he lived with his parents and sisters whom he has not seen since the day of his arrest.
“Despite his serious criminal conduct, all indications are that this defendant, like most of his co-defendants, is a person of substance and decency who was motivated to assist the Tamil minority in Sri Lanka who were engaged in an ongoing civil war that it now appears involved serious human rights violations on both sides of the conflict …
“The defendant has been in custody for almost six years, separated from his family and for the entire period. He has voluntarily served as a tutor to other inmates who have written to the Court on the defendant’s behalf expressing their appreciation of his efforts and their thanks for the successes they have realized as a result. In the Court’s view, supported by judges with whom I have consulted, a substantial variance is appropriate and reasonable given the full range of circumstances presented.”
On January 23, 2014, the Second Circuit Court of Appeals, upholding Judge Dearie’s substantial variance.
It is not often that we see a federal judge express the difficulty of what must often be a very trying part of the job, administering a fair and just sentence. Defendants often are more than just the crimes they have committed. They are real people with real stories.
We tip our hat to Judge Dearie.