By Radha Vinod Raju
Tahawwur Rana and David Coleman Headley hit the headlines in India following their arrests in the United States in October 2009. This was in connection with the Mumbai terror attacks and the jihadists’ preparations to attack European targets to avenge the portrayal of their prophet in cartoons, thereby insulting their religion. Headley, who played a prominent role in the reconnaissance of Indian targets for the Lashkar-e-Taiba in Mumbai, under instructions from Major Iqbal of the ISI, had made certain disclosures to the FBI about his own role in the terror attacks, the role of the ISI handler, Major Iqbal, and the LeT, in setting him on this endeavour. These disclosures created a sensation in the Indian media, and Indians anxiously awaited the trial of Rana in which Headley was to be a government witness.
What is the status of such a witness? The son of a Pakistani diplomat posted in the United States and his American wife, Headley, born as Dawood Gilani, spent his teenage years in the United States, though his early childhood was in Pakistan with his father. He had met Tahawwur Rana in school during his stay in Pakistan. It had earlier come to light that Headley had been twice-arrested in the United States for drug-related offences by the Drug Enforcement Agency, once in the late eighties and once in the late nineties. The Agency had used Headley to spy on his fellow Pakistanis involved in the drug racket. Though sent on probation after his pleading guilty the second time, his probation was cut down on the recommendation of the Drug Enforcement Agency. He was then sent to Pakistan to collect more intelligence on the drug racket. That was when he got embroiled with the Lashkar-e-Taiba. According the Drug Enforcement Agency, he was dropped from the list of their informants after 2005, as he had not been productive.
Headley has disclosed details of his training in the LeT, and his own hatred for India after the 1971 war which saw the break-up of Pakistan and the birth of Bangladesh. He has given his reasons for changing his name to David Coleman Headley from Dawood Gilani, reasons which added value to his profile, with his Caucasian good looks that passed him off as an American. With the new name, passport and self-presentation, he became an asset for the ISI and the LeT as a spy in a place like India, where none suspected him to be anyone other than what he claimed to be, an American.
However, the question is, what is the status of Headley as a witness in the case against Rana, and how does it help India’s case? Headley has confessed to his own role in the conspiracy that manifested in the gruesome Mumbai attacks in which 166 innocent people were massacred. He has plea-bargained to get a lesser punishment in the case, and become the government’s witness. We have similar provisions in our own law too. An accused who confesses to his role in an offence without concealing any details can be pardoned under our criminal procedure code, and his testimony used as that of a witness against other accused. Such a person is called an approver. There is a set procedure for this purpose. The judge has to be convinced that the offence cannot be brought home without his testimony. The accused then applies to the judge to turn an approver, and with the agreement of the prosecution, the judge passes appropriate orders, making the accused an approver. But, an approver’s is tainted evidence; he turns against the co-accused to save his own back. His evidence is therefore measured with a stricter foot rule. The judge will look for independent corroboration of the testimony of such a witness, and only when convinced, will make a decision on the basis of such a confession.
How reliable is Headley’s testimony? He told the FBI in the second half of 2009 about his India visits, his stay at the Taj and Oberoi, his flights to India and from India to Pakistan etc. These circumstances were within the exclusive knowledge of David Headley, they were not known to the FBI. Subsequent investigations in Mumbai and other parts of India have borne out the factual basis of these disclosures. Indian sleuths were able to dig out all records of his various flights over a period of over two years to and from India, hotel records showing his stay at the Oberoi and the Taj, his stay at the same hotels in 2007 with his Moroccan wife, Faiza Outalha etc. This would bring his testimony within the ambit of Section 27 of the Evidence Act, making it admissible in evidence. The FBI has produced email accounts of Headley’s correspondence with various persons mentioned in his disclosures, including the ISI agents and LeT handlers. These pieces of corroborating evidence would enhance the evidentiary value of Headley’s disclosures, and are perfectly reliable to come to a decisive conclusion as to his role in the Mumbai terror attacks, and consequently, the role of the ISI’s Major Iqbal and Sajid Mir, the LeT’s handler.
Pakistan maintains that Headley is not a reliable witness, and that he was working for the Drug Enforcement Authority of the United States. They overlook the excellent corroborating evidence available to buttress the case against Tahawwur Rana based on Headley’s disclosures, and thereby the ISI’s nefarious role in the attack. However, the case against Rana and the ISI’s Major Iqbal based on the above evidence looks credible and strong.
Radha Vinod Raju
Former Director General, National Investigation Agency (NIA). Currently, Distinguished Fellow, IPCS
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