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Headley case: extradition is out, access, info-sharing likely

By Aziz Haniffa
April 11, 2010 13:46 IST
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While President Barack Obama, when he meets with Prime Minister Dr  Manmohan Singh on Sunday at 1.45 pm local time in Blair House -- directly opposite the White  House -- will reiterate that the United States is committed to full information-sharing with India on the Lashkar operative David Headley case, senior Administration officials told rediff.com that they "fail to understand" the Indian media's continued harping that New Delhi will apparently insist that  Headley be extradited to India.

These officials asserted that the "extradition of Headley is an absolute non-starter," and explained that this Pakistani American LeT operative's aboutface when he agreed to plead guilty was conditioned on "an unshakeable" plea-bargain that the death penalty and any possible extradition to India, Pakistan or Denmark, be taken off the table.

According to these officials, while access to Headley by Indian investigators was a possibility, they explained that "it's all in the legal realm now" and it would depend on law enforcement how this access is  worked out -- whether it would be direct access somewhere in the US or partial  access with Headley's legal team and US investigators sitting in.

But they made clear that all of this was "the prerogative of the (US) attorney general" and that "the attorney general has total independence" on these matters and it's not within the jurisdiction "of the executive (either the White House or the State Department) to influence access in this  case."

However, the officials pointed out that in the days that followed  Headley's guilty plea, Attorney General Eric Holder had called Indian Home  Minister P Chidambaram and assured him of his office's full cooperation in this matter and in the immediate sharing of information in this case, which he (Holder) had reiterated in a meeting with Indian Ambassador Meera Shankar last week.

Indian newspapers and news agencies were reporting on the eve of the  prime minister's visit that India was determined to seek Headley's extradition and direct access to him and would raise this issue with the US at the official-level meetings during Dr Singh's four-day visit to Washington, DC, to attend the Nuclear Security Summit.

One report said National Security Adviser Shiv Shankar Menon would stress in a meeting with his US counterpart General Jim Jones that Headley be extradited to India since the horrific 26/11 terror attacks, for which Headley pleaded guilty as being a major part of the planning and conspiracy, occurred in  India.

One senior official told rediff.com, "Haven't these guys read the plea agreement, where it clearly states that Headley will not be extradited to India, Pakistan or Denmark?"

The paragraph in question with regard to extradition in the plea  agreement stated that 'Pursuant to Article 6 of the Extradition Treaty between the United States and India, Article 7 of the Extradition Treaty between the  United States and Denmark, and Article 4 of the Extradition Treaty between the United States and Pakistan, defendant shall not be extradited to the Republic of  India, the Kingdom of Denmark, or the Islamic Republican of Pakistan, respectively, for any offenses for which he has been convicted in accordance with this plea.'

However, these officials said that since the prosecution expected Headley to fully cooperate with the prosecution and spill the beans on his sponsor Chicago native Tahawwur Rana, Pakistan-based terrorist leader Ilyas Kashmiri and his handler, retired Pakistani army major Abdur Rehman Hashim Syed, and help the  Federal Bureau of Investigation and US intelligence with invaluable information of the Mumbai terror attacks, "We are committed to sharing this information with India."

But, these officials noted that Headley as an American citizen could  "plead the Fifth" (Amendment of the US constitution) where he, on the advice of counsel, refuses to answer any question or all questions on the grounds that it could incriminate him.

However, these officials said it was unlikely he would do so and would instead provide as much information as possible so that he would get off with a lighter sentence.

The plea agreement, while acknowledging that "an anticipated advisory sentencing guideline of his life imprisonment" is likely, added that if Headley "continues to provide full and truthful cooperation, the government will ask the court to grant an unspecified departure from the sentencing guidelines."

Immediately after Headley pleaded guilty, assistant US attorney for the northern district of Illinois and the official spokesman for the prosecution,  Randall Sanborn, told India Abroad newspaper that whether Headley gets off with a lighter sentence than a lifer would depend on Rana's trial. "That would be the scenario where Headley could be a witness at Rana's trial. We would wait till after Headley completes his cooperation before he is sentenced," Sanborn said.

The administration officials, however, continued to emphasise that neither the White House nor the State Department could influence "the legal process," but pointed out that President Obama had made clear that "all information that can be shared and whatever access that can be provided," should be immediately be given to India.

Last week, Ambassador Daniel Benjamin, coordinator for counterterrorism at the Department of State, made it abundantly clear that his office will not influence law enforcement authorities via any diplomatic lobbying to provide India with direct access to Headley.

Benjamin, who recently visited India and Pakistan, told rediff.com, "Let me be quite categorical. These are very complex legal issues at stake here. (And) The issues of access are best handled by the Department of Justice, which handled the plea agreement, and because of the legal nature of this, it's not really something that's appropriate for me to be lobbying one way or the other."

But he argued that "what is not at stake here is that the Indian government is getting every bit of relevant information from Headley that it requires."

Ever since Headley's plea bargain, there has been considerable concern in India that this was a deal that US intelligence had engineered because allegedly Headley was a double agent and the consequence reluctance by US authorities to afford India direct access to him even in the US was to protect Pakistani intelligence from embarrassment in the wake of reports that some Pakistani military and ISI agents were his handlers.

Earlier, Assistant Secretary of State for South Asian Affairs Robert Blake, who also recently visited India, said, "We are very much committed to full information-sharing with the government (of India) on that (the Headley case). However, no decision has yet been made on the question of whether they will have direct access to Headley. And, you know, the Department of Justice is working with the Government of India to discuss the modalities of such cooperation. But again, no decision has been made on that."

Meanwhile, the officials, while acknowledging that access to Headley, which the US is fully cognisant India is concerned over, would be an issue Obama would address in his meeting with Dr Singh, said the importance of India's role in Afghanistan -- yet another concern in that the US may be outsourcing this completely to Pakistan -- would be something the US president would reiterate in his mini summit with Dr Singh.

They also said that it could be expected that Obama would also bring up the issue of Iran and its alleged nuclear weapons programme and urge India to support the US-led mobilisation effort to isolate Iran and join in on the coercive, punitive sanctions being contemplated against Teheran. India has said it does not favor a sanctions regime against Iran and argued that it would only harm the people of Iran and threaten the stability of the region.

Instead, it has counselled continued dialogue.

The full implementation of the civil nuclear deal between the US and India, in the wake of the conclusion of negotiations between both countries on the contentious reprocessing issue, was another likely priority on the agenda, the officials said, and acknowledged that Obama would press for India to push though the civil nuclear liability law so that the deal could finally be consummated.

Singh, with whom Obama would have the first bilateral meeting on Sunday, preceding the two-day Nuclear Security Summit on April 12-13, arrived last night at the Andrews Air Force Base in Maryland, and was almost immediately whisked away in a waiting limousine with Secret Service escort in several Chevy Suburbans to his hotel, the Willard Intercontinental, where he was  expected to be ensconced ahead of the summit with senior officials such as Menon, Foreign Secretary  Nirupama Rao, and Ambassador Shankar, preparing for his mini summit with  Obama.

Earlier, Ben Rhodes, deputy national security adviser for strategic communications at the White House, noted, "Obviously, the president developed a close working relationship with Prime  Minister Singh who visited the United States for a state dinner and working  visit last year.

"And, we expect, again, to have a dialogue with the Indians, a continuing dialogue on a range of issues that we are working with them together on," he added.

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Aziz Haniffa in Washington, DC
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