Headley’s Case Curiouser And Curiouser

The case relating to India’s request to the US to be allowed to interrogate David Coleman Headley of the Chicago cell of the Lashkar-e-Toiba (LET) is getting curiouser and curiouser due to mishandling by the Governments of India and the US.

The mishandling by the Government of India is due to its disinclination to accept that the US has badly let down India and that the Indo-US cooperation in counter-terrorism is not as satisfactory as projected to be by officials of both the countries. The mishandling by the US is due to its anxiety to prevent a public admission of the US intelligence community’s links with him and to protect Pakistan from the legal consequences of its role in the 26/11 terrorist strikes.

Headley, according to his confessions before a Chicago court, helped the LET in carrying out the Mumbai 26/11 terrorist strikes Nine of the 12 charges filed against him by the Federal Bureau of Investigation (FBI) before a Chicago court arise from his participation in the planning for the 26/11 terrorist strikes.

There are three criminal cases simultaneously going on relating to the 26/11 strikes—- before a court in Mumbai, a court in Chicago and an anti-terrorism court in Pakistan. Till now, Pakistan has chosen not to take cognizance of Headley in connection with its own case against seven arrested members of the LET despite Headley’s links with some of them. Pakistan is conducting itself as if action against Headley is a matter between India and the US with which it is not concerned.

Even though India has been agitating vigorously for its right to interrogate Headley in connection with the Mumbai case and his links with the LET, it has chosen till now not to cite him as a co-accused in the Mumbai case to avoid delay in the Mumbai trial till the judicial proceedings in Chicago are over.

Indian interrogation of Headley in the sense the word interrogation is understood in criminal law has been ruled out by the FBI, but in the plea bargain with Headley, the FBI has kept open the possibility of Headley’s testimony from the US through video-conferencing or other means in any foreign judicial proceedings. This applies to any judicial proceedings relating to the Mumbai attack in India as well as Pakistan. There have to be common parameters for recording his testimony— whether the request for it comes from India or Pakistan. If the FBI concedes India’s right to interrogate, then Pakistan does not come into the picture. Interrogation is not a judicial proceeding. If India accepts the FBI’s suggestion of testimony, Pakistan comes into the picture. The same procedure for testimony has to apply in the case of judicial proceedings of India and Pakistan.

India seems still undecided whether it should insist on “interrogation” or should accept “testimony” even though it may not be as satisfactory as “interrogation”. If India accepts the suggestion for testimony, will he be asked to testify as a witness or as a co-accused in the Mumbai case? If India wants him to testify as a co-accused, then his name has to be cited as a co-accused on the basis of the information shared by the FBI with the Indian investigators.

If “testimony” is chosen as the ultimate solution, the case may have to proceed along the following lines. India cites Headley as a co-accused on the basis of the information shared by the FBI based on Headley’s interrogation by FBI officers. The FBI officers, who interrogated Headley, testify before the Indian court from the US through video-conferencing. Headley testifies through video-conferencing to the Indian court on what he told the FBI.

“Interrogation” will give India greater flexibility to ensure that the Mumbai trial is not delayed till the judicial proceedings in the US are over. “Testimony” will curtail India’s flexibility.

One has to admit that whatever be the arguments and spins one might use, the post-9/11 Indo-US counter-terrorism cooperation so painstakingly built up lies shattered. The comfort level between the intelligence communities of the two countries was an important outcome of this co-operation.

This received two serious blows post-2004. The first was the case of Major (retd) Rabinder Singh of the Research & Analysis Wing who had been allegedly recruited as its agent by the CIA. The CIA helped him to seek asylum in the US when he was about to be arrested by the Indian counter-intelligence.

The second was the discovery of another alleged CIA mole in the National Security Council Secretariat of the Government of India, which is part of the Prime Minister’s Office.

The intelligence communities of the two countries, which had a long history of co-operation against the subversive activities of international communism ever since India became independent in 1947, managed to get over the trust deficit, which resulted from these two blows.

They did not allow these blows to damage seriously the counter-terrorism co-operation architecture built up since 9/11. Indian intelligence professionals were appreciative of the high level of co-operation—-forensic and technical— which they received from the Federal Bureau of Investigation (FBI) during their investigation of the 26/11 terrorist attacks in Mumbai.

At a time when the Indian intelligence community seemed to have rid itself of the past distrust, a third blow has been struck by the case of Headley.

Headley and his accomplice Tahawwur Hussain Rana, a Chicago-based Canadian citizen of Pakistani origin, were arrested by the FBI in October 2009 during an investigation into a plot of the LET and some other Pakistan-based terrorists to attack a Danish newspaper which had published cartoons of Prophet Mohammad in 2005. Their interrogation led to the discovery that they had assisted the LET in attacking Mumbai.

The perceived reluctance of the FBI to consider an Indian extradition request and to allow Indian investigators to interrogate Headley in Indian custody has revived the wall of distrust between the two intelligence communities. There has been strong criticism in India of what is seen as the double standards of the US intelligence.

When Abu Zubaidah, Khalid Sheikh Mohammad and Abu Faraj al-Libi of Al Qaeda were arrested in Pakistan and Hambali of the Jemmah Islamiyah Indonesia was arrested in Thailand, the US intelligence insisted on taking them into its custody to interrogate them on the future plans of their organizations and on the whereabouts of Osama bin Laden. It prevailed.

India knew that extradition of Headley and Rana, though desirable, may not be feasible under US laws. It did not want even that they should be brought to India for interrogation. It knew that the US judiciary may not allow it.

All New Delhi wanted was that its investigators should be given immediate access to them in the US so that they could question them not only on 26/11, but also on the future plans of the LET and its sleeper cells in India.

Presuming that in the light of the growing co-operation the FBI would allow this, the Government of India rushed a team of investigators to the US to question Headley after hearing of his arrest. Indian officials were taken by surprise when the FBI declined to do this and sent them back empty-handed.

Indian professionals feel that since then the FBI has been dragging its feet to repeated Indian requests for an opportunity to interrogate Headley even in US territory. The plea bargain entered into by the FBI with Headley last week has created strong suspicions in India that the FBI wants to avoid a formal trial of Headley and was reluctant to allow Indian investigators to interrogate him because Headley was a deep penetration agent of the US intelligence, who horribly went out of control.

Indian intelligence officers are mature professionals. They know all agencies commit mistakes in their deep penetration operations. They would not be interested in asking him about any links which he might have had with the US intelligence. They know that by embarrassing the FBI by exposing such links they would create bitterness.

Their interest will be in questioning Headley on his role in 26/11, the future plans of the LET, the sleeper cells of the LET in India, the plans of Ilyas Kashmiri, a Pakistani associate of bin Laden, for terrorist strikes in India and the role of the Pakistani State in all this.

So long as Headley is jailed in the US, extradition is not a life and death matter for India. New Delhi has no interest in embarrassing the FBI, but it has a right to expect that as a much-trumpeted strategic partner and natural ally of the US, its core concerns regarding the need to neutralize the LET before it indulges in more 26/11s will be understood and shared by the US intelligence and that Indian investigators will be given unrestricted access to Headley and Rana—even if it be in US custody.

Unless this is done, the counter-terrorism co-operation between the two countries may face difficulty in recovering from the present set-back.

B. Raman

B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai and Associate, Chennai Centre For China Studies. E-mail: [email protected]

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