Reliability of Headley and the Indian position

Photo-The Hindu

The turn around which Indian investigating agencies were expecting in the Tawwahur Rana case finally happened with David Headley testifying that the top leadership of the ISI had nothing to do with the 26/11 attack.

Indian agencies who would be visiting the US during July to interrogate Rana say that they did expect Headley’s testimony to be full of twists and turns. While interrogating Headley we did realize that he was a smart operative and was capable to changing versions. However during his interrogation with both the FBI and the NIA, his versions did remain intact. The NIA will stick to what he has told them during their interrogation and the chargesheet would be filed on that basis. However the final chargesheet would corroborate the statements of both Headley and Rana following which the versions would be matched, NIA sources also said.

Headley’s testimony and versions were always suspect and anyone who thought that he was speaking the whole truth and not trying to save his own skin is a fool. Indian intelligence sources say that it is next to impossible to believe that only a part of the ISI was in the know of the 26/11 attack. The ISI has been a very strong element till date only because of the manner in which they perfectly follow the hierarchy. There have been no defectors from the ISI till date and nothing at all against the top leadership within the ISI is even remotely possible. If  a considerable small person like Sabahuddin claims that he had met with Asfhaq Kiyani, then it is highly unlikely that likes of David Headley and Rana would have been oblivious to the top leadership.

Coming back to Headley, Indian agencies say that they do expect Rana to retort since he must be feeling let down. Rana and Headley who knew each other from childhood are now sort of at logger heads in theChicagocourt. Hence today it becomes even more interesting to see what Rana would have to say against Headley in court.

Indian agencies share the view point of the defence attornerys in thChicagotrial. They had said that Headley’s version is unreliable and he had implicated Rana in the plot with a view of making a deal with the prosecutors. Moreover Headley right from the start was keen on playing safe and immediately entered into a plea bargain with the US authorities. He would do anything to get a better deal from the prosecution now and is capable of spinning a lot of stories in the court. Rana’ attorney, Charles Swift too was forced to mention to the press that Headley hides the truth from everyone and he is like a spider who maneuvers everything in the web so it works out his way.

Indian agencies say that the turn around against Rana was an expected one. The moment he entered into a plea bargain, he donned the role of a government witness. The evidence by such persons is always considered tainted and hence the final call would be upon the judge whether to believe this evidence or not. After examination of the confession and cross examination will the judge take into account the statements. Moreover judges all over the world are more cautious while passing orders on the statements made by approvers.

India however would have to worry too much about these flip flops, sources say. Indian agencies would go strictly by his confession. In Indian terminology Headley would be termed as an approver.Indiacould also exercise a similar option with Headley and also Rana when they commence their case here. While their statements would have to be examined during the trial, it still would makeIndia’s case much easier considering the fact that it is hard to extradite these two men, especially Headley who has entered into a plea bargain.

While the David Headley case appears to an open and shut one for the Indian agencies, the issue would however be the testimony against the ISI. ForIndia, the ISI link to the 26/11 case is an extremely important one and they did have a lot of expectations from these testimonies. At first it appeared as though Headley would nail the top brass of the ISI, but today there clearly is a diversion. We would need to wait for Rana’s testimony and see whether he sticks to his statements. It is not as though we are putting all our eggs into one basket and basing our case entirely on what happens inChicago. We have our independent investigation to show that even the top brass of the ISI was in the know of this attack, sources also pointed out. However we cannot jump the gun on any of the issues since the trial is still on and we have no choice but to wait for that to conclude before we make our move.

 

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NIA’s first chief on the Headley case

The Tawwahur Rana trial is on in full swing and the National Investigating Agency has already started building its case. The NIA was set up immediately after the horrific 26/11 attack exclusively to investigate terror cases in India. Radhavinod Raju was appointed as the first director general of the NIA. The immediate challenge before the NIA was the 26/11 case which eventually branched out into a much larger case with an American angle which we today call as the David Headley case. Today the trial is underway in Chicago and Headley has spoken a lot in his testimony. Now India and the rest of the world will wait for what Rana has to say and in the Indian concept their investigation would be complete once they examine Rana.

R V Raju who paved the way for S C Sinha as the director general of the NIA speaks about the role that the NIA will play from here onwards where both Headley and Rana are concerned. In this interview with rediff.com, Raju who was also the Special Director General of Police in Jammu and Kashmir says in this entire case, the ISI stands exposed and there will be pressure on Pakistan to restore civilian rule. More importantly the onus will be upon the United States of America to lead this initiative. He also goes on to say that the NIA has collected a lot of evidence in this case and adds that there is a great need to examine Rana now.

What role will the NIA have to play from here onwards in the David Headley
case?
The NIA’s case is different, it looks at the conspiracy to attack various Indian targets. Headley’s statement, in so far as it advances this case, will be useful for us. We will try to examine Rana to advance this case, and will look forward to all evidence that Headley’s testimony throws up to buttress this case, including role of ISI officers and LeT operatives.

Do you think that the FBI has been cooperative with the NIA where this case
is concerned?
The FBI did cooperate with us within professional limits. We have ourselves collected quite a lot of evidence. But we need to examine Rana, and make all efforts to collect evidence from Pakistan for which efforts are being made.

Will the testimonies by both Headley and Rana have any relevance in the
Indian courts?
If Headley and Rana give statements to Indian investigators within the ambit of the Criminal Procedure Code of India, we can use them in our proceedings. Proceedings in courts other than where the trial is held can be used during the trial if properly introduced. But the
proceedings in a foreign court, whether they can be used in India, needs to be seen. In principle, I see no objection, because a court is a court.

It appears that both these men will have to be tried in absentia in India. Does this have any meaning for us or is it just a routine procedure?
Trial in absentia is no option. We can, under law, record a statement of a witness in court even though an accused is absent. But, unless opportunity is given to the accused for cross examination, or the witness who gave the statement dies, such statements do not become evidence. In our system, the accused has to be present for the trial
to go ahead.

How do you see the ongoing case impacting the ISI which is at the centre of
this trial?
The ISI stands exposed. There will be demands, within and outside Pakistan to control the agency, and to establish civilian supremacy. The Americans should lead this effort.

Rana says that he was working for the ISI and not the Lashkar-e-Tayiba. How
do you think this helps his case?
Rana is using a tactic mostly suggested by his lawyer-that he was working on behalf of the state, and not of a terrorist organization. Beyond semantics no value.

Do you think there is any chance of India being able to extradite at least
Rana since he has not entered into a plea bargain as yet?
The Americans have the first shot at the trial and further legal action against both Rana and Headley. Rest is only academics.

Will the NIA be able to get direct access to Rana?
Whether NIA gets access depends on Rana; he can refuse under the US system, and there is nothing that the US can do. Headley agreed to meet us.

NIA has been seeking voice samples from Pakistan. Do you see that country
handing over the same?
As per reports, Pakistan has agreed to try to get the voice samples. But depends on the court procedures. If the person whose voice sample is required objects, then it can be a problem. Ideally, the ISI will be worried, for we will be able to fix at least some identities of
those who were operationally directing the Mumbai attacks. In view of
this, I am not very hopeful of getting the samples.

What are the practical problems before the NIA in this case since it
involves the cooperation of other countries as well?
NIA has a case against Rana and Headley, but we cannot get them in the foreseeable future. We need to investigate in Pakistan, but that is not in our control. These are our practical difficulties.

Headley-Rana, getting the connection right

With the Tawwahur Rana trial on in full swing at a court in Chicago, the biggest challenge that would be before the National Investigating Agency is to nail the links between Rana and David Headley.

There is an absolute need to link the connection between the two of them in order to have a fool proof case, NIA sources said. We are studying the developments each day and we need to wait for the trial could get over before we question Rana by ourselves. The testimony of Headley and our own investigations have given us enough material to nail the connection between the two.

While the testimony by Headley at Chicago does confirm our doubts about the relations between the two, we would still need much more material to put out a water tight case. As pointed out earlier also, the details that are emerging are not new and we already have all that information with us. Yes, the Rana testimony will be something new since we have not yet interrogated him.

Putting out a water tight case for the NIA would mean that they will need a lot of help from their counterparts in the United States of America and hopefully from Pakistan. The first thrust would be to obtain material from the US and then seek information from Pakistan. However there have been several requests to Pakistan in the past and they have not given us the required material.

From both these countries, the NIA will first seek the voice samples. This is a very important aspect of the investigation since both these men reported to the same handlers and were part of the same module which carried out the ghastly attack. The voice samples would help the NIA establish the links between the two and this would become a very strong document in the court when the case gets underway in India. Apart from this the NIA has also been examining how both Headley and Rana coordinated with each other and corresponded with the Lashkar-e-Tayiba and the ISI. While dealing with this aspect of the case it would become important for us to get our hands on the transcripts, voice samples and also documents,

The FBI will play a crucial role in this and during the forthcoming talks with the US next month, India will make a pitch for enhanced cooperation in this case. Senior officials who are currently with the Prime Minister at Dar es salam too confirmed the same and said that the United States will have a crucial role to play since this case completely concerns India.

While the independent investigation by the NIA would be absolutely necessary following their interrogation of Rana, the testimony of both Headley and Rana will be of great value when the case is tried in India. The investigating agencies would rely on Section 27 of the Indian Evidence Act of 1872 which states, “provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” This would essentially mean, according to legal experts that his testimony which has been done under plea bargain comes within the ambit of section 27 and is admissible in the court of law in India.

Moreover when the case is tried in India, it would have large ramifications too. His testimony speaks of the role played by the ISI, the majors in it and also members of the Lashkar. Considering the fact that section 27 would be in play this would mean all the names mentioned by Headley can be brought to trial as these names find a mention in the testimony.