OPINION

Prosecuting David Headley

The arraignment of Pakistan-born American operative David Coleman Headley as a conspirator in the case relating to the Mumbai terror attacks of 2008 may appear redundant after he was sentenced to 35 years in the United States in January 2013 for his admitted role in terrorist plots in India and Denmark. It may even seem particularly strange in the light of the specific condition on which he had pleaded guilty — that he would not be extradited to India, Pakistan or Denmark. The possibility of Headley being jailed in India is less than remote, as it is unquestionably ruled out by his present legal situation. Yet, the indictment is not without meaning or significance. By making him accused number two in a case in which Syed Zabiuddin Ansari alias Abu Jundal of the Lashkar-e-Toiba has been charge-sheeted, the Special Court has opened up the possibility of Headley testifying through video-conferencing. The former U.S. intelligence agent may buttress India’s long-standing position that the LeT and its handlers in the Pakistani intelligence establishment masterminded the deadly November 26, 2008 attacks. The court has summoned him to appear before it on December 10 through video-conferencing. In fact, Headley’s promises of cooperation in his plea bargain with the U.S. authorities include “testifying in any foreign judicial proceedings held in the United States by way of deposition, video-conferencing or letters rogatory”. This aspect significantly enhances the value of his virtual presence before an Indian court. It is entirely appropriate that Headley’s admissions, of which the most relevant are parts of his testimony concerning specified LeT operatives and military officials in Pakistan in arming, preparing and despatching the Mumbai assailants, are reiterated before an Indian forum.

However, some legal questions remain. Indian law allows recording of evidence through electronic means, but can it be stretched to sentencing someone without being present in court? How far will he be able to confirm the role of Abu Jundal, who has been charged with being present in a ‘control room’ that was directing the Mumbai attackers from Pakistan? Headley did not refer to Jundal either in his court plea or during his interrogation in June 2010 by the National Investigation Agency, but it cannot be ruled out that he may have further information on the Mumbai terror plot. Besides, the prosecution may want to prove that the conspirators named by Jundal are also the ones referred to in Headley’s testimony. The U.S. may have seen to it that Headley stays in prison for long years, but it may not be easy for Indian citizens to absorb the possibility that a man who admitted his involvement in the conspiracy to murder and maim people in Mumbai will never be made answerable for them in an Indian court. As a former intelligence agent who went rogue, Headley will always be seen as one who got away lightly, and as one who was spared the rigours of Indian justice. His inclusion as a suspect may assuage such misgivings to some extent.

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