US officials have been quoted in the media as saying that the further action against David Coleman Headley of Chicago, who was allegedly involved in the conspiracy of the Lashkar-e-Toiba (LET) relating to the Mumbai--26/11 terrorist strike, has to be “negotiated”. What do they mean by that?
There will be two kinds of “negotiations” --between Headley and the FBI prosecutors and between Indian and US authorities. The objective of the “negotiations” with Headley will be to persuade him to admit before the court some of the charges levelled against him as a quid pro quo for the FBI not prosecuting him on the other charges which might be dropped. The advantage to him will be that the FBI could assure him that it will not press for a death penalty against him if he admitted some of the charges. Quid pro quo in criminal cases in order to expedite the trial is often followed in the US. The “negotiations” with the Indian authorities will be to decide where he will be prosecuted. He has committed offences against Indian and US laws. He cannot be prosecuted on the basis of the same facts or admissions in both the countries. That could attract the legal ban relating to double jeopardy.
What are the chances of the US agreeing during the “negotiations” to his being prosecuted only in India and not in the US? That would not attract double jeopardy.
I am not hopeful that the US would agree to it. If they did, they will have to transfer Headley to Indian custody for interrogation and prosecution. Pakistan would oppose it. The US State Department would be afraid that if he is interrogated in Indian custody, he might make to Indian interrogators admissions or statements, which could be detrimental to the State of Pakistan. The US has always tried to protect the Pakistani military and intelligence establishment from possible adverse consequences of their involvement in terrorism in India. There is no reason to believe that they have changed that policy.
What are the chances of India getting him extradited?
If the terrorist attack had not resulted in the death of US nationals, the US would have found it difficult to reject or avoid an Indian request for his extradition. Because of the death of the six US nationals, the US might have no other option but to prosecute him before a US court. The question of extradition would arise only after the case in the US has ended. If India intends prosecuting him for the same offence and on the basis of the same set of facts as in the US court, laws relating to double jeopardy could prevent his extradition. To make out a plausible case for his extradition, the Govt. of India has to show that he has to be prosecuted for certain other offences different from the offences for which he was prosecuted in the US-- like , for example, the death of Indian civilians and security forces officers as a result of the conspiracy or the death of Jewish persons and other foreign nationals.
Will the FBI allow Indian investigators to interrogate him in the US if it is not prepared to transfer him to Indian custody?
I am again doubtful because of the expected US keenness to protect Pakistan from possible adverse consequences. The best they might do is to ask the Indian investigators to give them a set of questions which the FBI investigators will pose to Headley and communicate his replies to their Indian counterparts.
Has India reasons to be satisfied with the co-operation extended by the FBI so far?
The FBI has been very helpful in certain matters. It seems to have shared with India many of the admissions made by Headley during the interrogation. One piece of material evidence which would be of tremendous interest to the Indian investigators is the voice recordings of Headley’s telephone conversations with his handlers in Pakistan identified in the original affidavit as Individual A and LET member A. Individual A has since been identified by the FBI on the basis of Headley’s admissions as retired Major Abdur Rehman Hashim Syed alias Pasha. The FBI does not seem to know as yet who exactly is he. Amir Mir, the Pakistani journalist, has reported in the “News” of December 9,2009, that the FBI is trying to find out whether he could be identical with a nephew of Qari Saifullah Akhtar of the HUJI, who has a similar name. The FBI has not yet named the LET member A. One possibility is that he is one of the LET conspirators presently in custody in Pakistan and facing trial in a case filed before an anti-terrorism court in connection with the Mumbai 26/11 conspiracy. If it turns out to be so, it will show that the Pakistani authorities have allowed those ostensibly in jail to continue to remain in touch with Headley in order to plan another terrorist strike in India. I am doubtful whether the US would want India to find this out. It will definitely pressure Pakistan to stop this, but would not share this information with India. If the US shares the voice recordings with the Indian investigators, they would be able to compare them with the recordings of the voices of the Pakistani masterminds, who were directing the 26/11 terrorists and see whether any of the voices are identical. I am not sure whether the US would share the voice recordings. If it doesn’t, that would show that the co-operation is even now not whole-hearted despite the improvement and that the keenness to protect the Pakistani State from adverse consequences still influences US decisions vis-à-vis counter-terrorism co-operation with India..
B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.