Factors that could complicate Headley’s extradition to India

CHICAGO - The first court appearance of Mumbai terror suspect David Coleman Headley Wednesday turned out to be a largely procedural one. However, his less than five-minute presence before US District Judge Harry D. Leinenweber served to underline complicated jostling that may lie ahead between the United States and India over who gets what out of him, how much and when.

While no US officials, either at the Department of Justice in Washington or US Attorney’s office in Chicago, are venturing any information at all on the subject, Headley’s extradition to India could well become an expendable part in any possible plea bargain. Although the case is quite far from that stage, it is quite possible that the prosecution and the defence as well as the Federal Bureau of Investigation (FBI) are all keeping the possibilities of grappling with an official Indian request for extradition in their strategy.

The fact that during his recent state visit to Washington Prime Minister Manmohan Singh and President Barack Obama did specifically discuss the Headley-Tahawwur Hassan Rana case means it has visibility at the highest levels of the two governments. In fact, after fresh charges directly linking Headley with the planning of the Mumbai attacks were filed on Monday, White House press secretary Robert Gibbs said, “Obviously, I continue to say, and the president does, too, that we have taken and will continue to take every step necessary to protect the American people. Today was an important day in doing that.”

It is quite rare that a specific case as opposed to the broad details of counterterrorism strategy is commented upon at this level.

Notwithstanding this traction, when it comes to the question of either Headley’s actual extradition or allowing Indian investigators to question him this bilateral resolve may yet fall short. So far the FBI has not made any commitment that they would allow Indian investigators to question Headley. His not guilty plea today means that the US investigators will have to step up their game as they prepare to hand over all discovery or evidence to the defence on Jan 8.

What is likely to push any Indian moves to reach Headley to the margins is the behind-the-scene maneuverings among the defence and prosecution over the case. For instance, the report that Headley is “cooperating” with the prosecution, even while contesting all charges, is seen by many as a possible strategy to avoid the death penalty, which is possible under the kinds of charges he is facing. Apart from taking the death penalty off the table, it is conceivable that Headley’s attorney John Theis may not even be inclined to have his client extradited.

When asked by IANS today whether he was aware of any moves by India to seek Headley’s extradition, Theis said he was not aware of any.

Adding to this is a potentially embarrassing revelation by well known investigative journalist Gerald Posner, who has just published a report saying that Indian intelligence believes that Headley is in fact a former informant for the Drug Enforcement Agency (DEA) “who went rogue.” Writing for The Daily Beast news site, Posner said he had “learned that Headley’s connections to the Drug Enforcement Administration’s murky intelligence unit - which I confirmed yesterday - might have played a role in his alleged conversion to terrorism. Additionally, sources at a foreign intelligence agency tell me that he might have been a double agent who turned on the US.”

No US official in Chicago was willing to go on record about this particular claim about Headley’s alleged DEA which can cause complications with the Indian authorities. “We will not comment beyond what is discussed within the confines of the court room,” one official speaking without wanting to be attributed the comment by name said.

(Mayank Chhaya is the editor of South Asia Daily in the US. He can be contacted at m@literateworld.com)