Five years after he began the surveillance operation that finally guided a ten-man death squad through the streets of Mumbai in November, 2008, Pakistani-American jihadist David Headley has entered into a plea bargain with U.S. prosecutors. In India, the deal has provoked media outrage but careful study of the Plea Agreement (accessible under Resources at beta.thehindu.com) shows that claims that Headley has got off lightly are misplaced. Plea bargains in the United States work around a complex points system set up by the United States Sentencing Commission. In return for pleading guilty to all the 12 terrorism-related charges, and for meeting specified obligations for cooperation with investigators, prosecutors will recommend a reduction in sentence. In essence, Headley will avoid facing the death penalty and will not be extradited to India, Pakistan, or Denmark. However, the judge hearing the case is not bound by the sentencing recommendations — and if they are rejected, Headley will not be able to withdraw his guilty plea. Nor, unlike an approver in an Indian criminal trial, will he be granted a pardon in return for giving state's evidence. Some commentators have speculated that the Plea Agreement means Headley was a secret U.S. agent. The truth is that the U.S. repeatedly passed on substantial intelligence to India of the looming threat to Mumbai in the months before 26/11. Had Headley been the source of those warnings, he would be in the process of receiving a medal — not life in prison.
Just what has Headley — who made a similar plea bargain earlier in his troubled life, in connection with a narcotics-trafficking prosecution — promised in return for his life? Paragraph 12 of the Plea Agreement states that he will, when directed to do so by the U.S. Attorney's office, “fully and truthfully participate in any debriefings for the purpose of gathering intelligence or national security information.” In addition, he will “fully and truthfully testify in foreign judicial proceedings held in the United States, videoconferencing or letters rogatory.” This means he will have no choice but to testify in the ongoing trial of Mumbai attack suspects if called on to do so by Maharashtra prosecutors. He must also cooperate in any future criminal proceedings initiated by the National Investigations Agency on the Lashkar-e-Taiba's plot to attack the National Defence College in New Delhi. Further, Headley has agreed to “the postponement of his sentencing until after the conclusion of his cooperation.” Paragraph 8 of the Plea Agreement reveals that he has already “provided substantial assistance to the criminal investigation, and also has provided information of significant intelligence value.” This cooperation should strengthen the case against his co-accused, Tahawwur Rana, as well as key Lashkar operatives in Pakistan. Barring death-penalty enthusiasts, no one has any reason to bemoan the Plea Agreement. India's investigators and justice system must move quickly to capitalise on Headley's intelligence and testimony.
The last sentence of the first paragraph of “Behind Headley's plea bargain” (Editorial, March 20, 2010) was “Had Headley been the source of those warnings, he would be in the process of receiving a medal — not life in prison.” It should have read “Had Headley been the source of those warnings, he would have been in the process of receiving a medal ….”