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India may have to conduct 26/11 trial without Headley

By Vicky Nanjappa
June 20, 2012 13:38 IST
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An Indian court may try and convict Lashkar-e-Tayiba operative David Headley for his role in the 26/11 attacks on Mumbai, but the conviction would merely be a symbolic one.

India, which has sought the extradition of Headley, will have to make do with a video conference link when the trial against him commences in a court in Delhi, where the National Investigation Agency had filed a charge-sheet against him and several others.

India has sought the statements of Headley's accomplices, including Tawwahur Rana, and sought their trial through video conferencing. But Delhi will have to wait for an approval by the United States administration, as Headley is currently in the custody of the Federal Bureau of Investigation.

India is likely to get access to the statements of Headley and his accomplices, but whether it will be allowed to hold a trial via video conferencing depends on how Indian investigators present their case.

The US administration will not object to Headley's statements being used in court, but the cross-questioning will pose a problem.

During his confessions to the FBI and the NIA, Headley had said nothing different.  The deal between Headley and the US government was sealed after the Pakistani-American pledged to reveal all possible information. In return for the information, Headley had sought a guarantee against extradition to another country; he wanted to remain in the US and serve his jail term.

According to legal experts, such a pre-deal does not prevent Indian authorities from conducting the trial against him through video conferencing. The prosecutors may have to give in writing the questions that he would be asked during the trial as these would have to be approved by the US administration and Headley himself.

If the questions are found to be within the limits of the statements given to the FBI and the US court, then India may get the requisite approval.

But in case Indian authorities fail to get it, they would have to convict Headley in absentia, on the basis of his confession and the verdict of the US court. But a trial via video conferencing may help investigators to uncover new angles of the 26/11 attack.

Even NIA officials agree that Headley has shared a considerable amount of information. His confession is lengthy, detailed and enough to nail the role of the LeT and the Inter Services Intelligence. During the cross-examination, there is a better chance of him explaining the role of his other accomplices, especially Rana who has been let off by the US court, in more detail.

India is convinced that Rana had played a role in the terror strike and it would need to rely heavily on Headley's confession to convict him.

Though Indian officials will keep on trying for Headley's extradition, sources point out that they are unlikely to be successful.

Headley has a pre-deal with the FBI, Rana has denied his role in the terror strike and other accomplices such as Ilyas Kashmiri, Sajid, Major Sameer Ali, Major Iqbal are hiding in Pakistan. It is mandatory to make such requests at a diplomatic level, but ultimately the trial will take place and the accused will be convicted in absentia.

The NIA may also wait for the verdict on the prosecution's appeal against Rana before questioning him.

According to NIA sources, they have done everything possible in this case and if the accused can't be brought to India, it is due to the pre-deals with the FBI.

The investigators will wait awhile before questioning Rana as the alleged LeT operative, along with Headley, is in the custody of the FBI.

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Vicky Nanjappa