Mitigated sentence

David Headley, a key conspirator in the 2008 Mumbai terror attacks, gets a 35-year prison term in the U.S., a much lighter sentence than what India wanted.

A page in the passport copy of David Coleman Headley.

ON January 25, one of the key conspirators of the November 2008 Mumbai terror attacks, David Coleman Headley, was sentenced to 35 years in prison by a United States District Judge in Chicago. Headley was found guilty on 12 counts, including conspiracy to aid militants from the Lashkar-e-Taiba (LeT) who carried out the Mumbai attacks. Headley had entered a guilty plea and cooperated with the U.S. authorities in order to escape the death sentence and avoid extradition to India. Headley will be 82 years old when he becomes eligible for parole.

On January 16, Tahhawur Rana, a Chicago-based businessman and once a friend of Headley’s, was sentenced to 14 years in prison by the same court. The prosecutors had demanded a 30-year prison term for Headley’s alleged accomplice. Rana, a former Pakistan Army man who took Canadian citizenship, was sentenced for providing material support to the banned LeT and for participating in a plot against the Danish newspaper in Copenhagen that had printed cartoons of the Prophet Muhammad. Jurors had cleared Rana of the more serious charge of involvement in the 2008 Mumbai terror attacks. They accepted Rana’s plea that he was not aware of the conspiracy to launch the attacks. The star prosecution witness against Rana was Headley. To avoid the noose, Headley had spent five days on the witness stand revealing details about his contacts with the Inter Services Intelligence (ISI) of Pakistan and the LeT.

Headley, according to reports in the American media, was also an informer of long standing for the U.S. Drug Enforcement Agency (DEA). In exchange for information, the agency had helped Headley escape a long jail sentence in California for dealing in drugs in the 1990s. According to reports in the American media, Headley, who at the time was known as Daood Saleem Gilani, was sent by the DEA to infiltrate Pakistani terror groups having links with drug gangs. Rana’s lawyers had opposed Headley’s plea bargain, pointing out his long-term association with intelligence agencies.

U.S. intelligence agencies had not bothered to keep their counterparts in India informed about the activities of Headley. India and the U.S. actively cooperate in intelligence sharing on global terror networks. Relatives of the 166 victims of the Mumbai attack as well as the Indian government were of the view that Headley deserved a death sentence or at least incarceration for the rest of his life.

While giving his judgment, District Judge Harry Leinenberger indicated that he would have preferred to award the maximum punishment to Headley. He pointed out that Headley had previously received two generous plea bargains when he was charged with heroin trafficking in the 1980s and the 1990s. He noted that Headley had escaped the death penalty while the lone survivor of the terrorist squad from Pakistan had been hanged in India. Justice Leinenberger observed that the Mumbai assault was so unfathomable and terrifying “that perhaps the lucky ones were those who did not survive”. It was Headley’s meticulous reconnaissance mission to Mumbai that helped the 11 gunmen inflict maximum damage on a hapless civilian populace. The judge, while delivering his verdict, also expressed the hope that Headley would be “under lock and key for the rest of his life”.

It was the prosecution that had asked Headley for cooperation in return for a lesser sentence. “We need witnesses. The only way you get witnesses in this world is to threaten them with prosecution and then offer them an incentive to cooperate,” one of the prosecution lawyers had said. Headley’s cooperation so far has not resulted in the nabbing of either his handlers in Pakistan or the ring leaders who masterminded the Mumbai attacks. “The DEA says he was deactivated as an informant in early 2002 after he began training with the Lashkar. Other U.S. agencies say he remained a DEA informant in some capacity until at least 2005. Indian officials claim that he remained a U.S. agent even later than that,” said Sebastian Rotella of ProPublica, an American public interest news network. Rotella has extensively covered the Headley and Rana trials.

The U.S. State Department spokesperson, Victoria Nuland, chose to describe the verdict on Headley as a “positive example” of the India-U.S. counterterrorism cooperation. She insisted that the U.S. had kept its promise of “justice being served” and emphasised that Indian investigators were allowed to question Headley. Nuland, however, reiterated the Obama administration’s stand that Headley will not be sent to India for further questioning and a trial. Washington claims that American laws do not permit repatriation of condemned prisoners.

Disappointing verdict

After the verdict was out, the Indian government said that it was continuing to press for the extradition of Headley. External Affairs Minister Salman Khurshid said that New Delhi was “a little disappointed” with the verdict as “we wanted him [Headley] to be tried here in India”. While assuring Washington about his government’s faith in the American judicial system, he said that a trial in India would have ensured a “harsher punishment” for Headley. Opposition parties have demanded that the government take a tougher stand with the Barack Obama administration and not give up on the demand for the repatriation of Headley. But repatriation, according legal experts, is now out of the question.

However, under the terms of the “plea bargain”, Headley will be available for questioning by India’s National Investigation Agency (NIA) in the presence of officials from the U.S. Federal Bureau of Investigation (FBI) if further investigations are needed in connection with the Mumbai terror attacks. The FBI was no doubt aware of Headley’s clandestine activities before and after the 2008 Mumbai attacks. Immediately after the Mumbai attacks, there were reports in the Indian media that U.S. intelligence agencies had given prior warnings to their Indian counterparts of an impending sea-borne terror attack on the country’s financial capital. Either Headley or some other source from Pakistan would have provided that information to them.

The Indian government had originally insisted that Headley face trial in an Indian court as it was conclusively proven that he had played a key role in the 2008 attack. The U.S. could have dispatched Headley to face trial in India, given the extradition treaty and the close relations that exist between the two countries these days. The Indian government has not shown the kind of eagerness to mete out justice in Headley’s case as it did in the case of Afzal Guru. Many legal luminaries have argued that there was more compelling evidence against Headley than against Afzal Guru. The Indian government did not legally oppose the “plea bargain” for Headley that the U.S. law officials had put up before the Chicago court.

The U.S. government would not have tolerated a citizen from a third country getting away if a crime of similar magnitude had been committed on its soil. Forced renditions of foreign citizens to the U.S., even on the mere suspicion of being involved in terrorist acts, have become a common practice since Washington started its global War on Terror. Many of them still languish in the notorious Guantanamo Bay prison without trial. Many who were renditioned and tortured in third countries by the U.S. government were later found to be innocent.

While people like Headley get a “fair trial” in American courts, the Obama administration metes out its own brand of justice to others. Suspected “terrorists”, some of them American citizens, are subjected to targeted killings in Pakistan, Afghanistan, Yemen and Somalia. More than 2,300 people have been killed in Pakistan alone. Now the extrajudicial assassinations are spreading to other parts of the world. According to reports, the Central Intelligence Agency (CIA) is now planning to deploy killer drones in north-west Africa. The Obama administration is claiming that the host governments have given it permission to carry out the “lethal operations”. But the U.S. Justice Department stated that the government had the right to act unilaterally if any government was “unable or unwilling to suppress the threat posed”. To mollify critics, the Obama administration is now thinking of setting up a court on the lines of the Foreign Intelligence Surveillance Act court, created by the U.S. Congress in 1978. Such a court would have to justify “targeted killings” of terror suspects to a Federal judge.