The 26/11 lawsuit, India must tread with caution

Has India taken the right step in deciding to implead itself as a party in the law suit filed in the United States by the relatives of two Americans who died during the 26/11 attack? Speaking to a couple of legal experts and also sources in the Intelligence Bureau, it appears that this exercise may become counter productive if the impleading application does not specify or touch upon a couple of important issues.

This exercise has been planned by the Indian government following the revealations by Tahhawur Rana who had nailed only the ISI and the government of Paksitan while leaving out the Lashkar-e-Tayiba. India feels that they could ride on the Rana confession in order to nail the Pakistanis who have always maintained their establishment had nothing to do with it. A suit had been filed in the US court by the relatives of Rabbi Gavriel Noah Holtzberg and his wife Rivka. In the suit they have sought action against Hafiz Saeed, the ISI chief among others. Substantiating their claim they had quoted the David Headley confession in which the ISI’s role is spoken about at great lengths.

India now feels that it would better their chances of proving a point against Pakistan if they implead themselves as parties in this suit.

Legal experts say that such action could swing both ways. India will need to take the judgment as it comes and will have to accept a verdict that has been delivered as per the laws in America. Moreover in case the accused persons are acquitted or a lesser sentence awarded, then they could always object to another proceeding in India. Moreover the weightage of a verdict by an Indian court would always carry lesser weight when compared to a one delivered by an American court in the eyes of the international community. It is also a known fact that the US being a super power can always exercise more might over Pakistan in comparison to India in issues pertaining to international laws and also extradition.

Experts say that the application in such a case needs to be drafted with extreme care. The application must read that India is not submitting to the jurisdiction of the US court and the role India needs to play is more of a witness. Moreover India would do well to manipulate proceedings to an extent that the US court suo motu summons us as witnesses in the case. Moreover in the application we must mention that we are not becoming a party to the proceeding or submitting to the jurisdiction. We should state that we are there to provide inputs since that case directly concerns us. In other words the Union Carbide case ought to be taken as an example. In that case the prosecution was taking place in the US on class action (representative suit for more than one person). India had however taken a stand that such prosecution cannot continue since the incident has occurred on Indian soil and it is submitted to the Indian jurisdiction.

However if at all the suit is decided in favor of the petitioners in the US, then India will really have nothing to worry about. The problem arises if they lose the case or even a lesser sentence is handed out, since India has stuck to the stand that these accused should be punished with the maximum sentence. If this case does not go in favor of the petitioners and India stands there as a party, then it would become very difficult to raise any further claims against the Pakistani establishment.

Sources say that India would wait a while before making the next move. The US court has already issued summons to Major Genral Ahmed Shuja Pasha, Hafiz Saeed and Zaki-ur-Rehman Lakhvi. India says that it could provide valuable inputs based on its own investigation only to make the case stronger against these people. The ISI has however been trying to convince the US to go slow on the summons since it could turn into a major embarrassment. India would however do its best to lend support to the petitioners in the law suit and could also provide inputs through a back channel as it is believed that with the Rana confession and trial round the corner, this is the best attempt to put the Pakistanis on the back foot.

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The Rana trial- What India wants

There is more trouble for the Pakistan based ISI with both David Headley and Tahawwur Rana likely to admit to their roles in the 26/11 attack which was carried out with the support of the Pakistan based spy agency.

The trial in the Rana case which was postponed last February at the behest of his lawyer will now commence on May 16th at a court in Chicago. Going by the reports it becomes evident that Rana is likely to confess to his crime before court in order to bargain for a lesser sentence. He was associated with Headley during the 26/11 attack and investigating agencies say that he lent support to Headley while the survey was conducted and also helped him with his paper work with which he traveled in India.

The National Investigating Agency which is handling this case is keeping a very close watch on the trial of Rana in particular. The trial would be a full fledged one and both India as well as Pakistan will keep a very close watch on the proceedings before the court. Rana is expected to underline and describe in detail the manner in which the ISI was behind this attack. Sources in the NIA say that the trial would largely also revolve around the role and the confession of David Headley who is one of the key accused in the 26/11 case. The prosecution would look to ascertain the association between Headley and Rana and the latter would have a lot to tell the court about this. The statements made by Rana will act as a document from where the Indian as well Pakistani agencies would proceed further with the case.

However the bigger worry for Pakistan is that the there are certain names of persons within their establishment which Headley speaks about. Sajid Mir, a colonel and a Major are part of Headley’s confessional statement which was made as part of a plea bargain. Following this confession, a team of the NIA left for the US and managed to interrogate Headley. Basically at the end of the questioning the Indian team got pretty much the same amount of information which Headley had already given in his confession. While a lot of the information was documented and would form part of the chargesheet there were still some missing links which Indian agencies have not been able to connect. The role of Sajid Mir and the rest of the members of the Pakistan establishment is what Indian agencies were trying to find out more about. However Headley stops shot of giving out more details claiming that is all he knew.

Once Rana comes into the box during the trial, he will be cross questioned on the basis of the Headley’s confession and all those involved in the investigation hope that he would reveal more about the details which Headley had left off half way.

Pakistan on the other hand would wait with bated breath for each statement made by Rana. As per the information available it is said that Rana would commence the trial by saying that he believed that he was working for Pakistani spies. It may be recalled that Rana had also said that he was a Pakistani patriot who believed that the ISI wanted his help. He is expected to reiterate that statement before the court as well.

Now this is a statement with a lot of implications since it would mean that Rana, before being given the brief was told that he was part of the Pakistan establishment. India is bound to act aggressive with Pakistan on this particular issue and that country would have a lot of explaining to do. Moreover Pakistan could also come under pressure to reveal the identities of those persons who were part of the establishment when the 26/11 attack was planned.

As far as the Indian agencies are concerned they would have to wait a while longer before they could interrogate Rana. While a copy of Rana’s statement before the court would be made available to them, they would seek permission to interrogate Rana once the trial is complete. Once the statements of Rana are corroborated with the one given to them by Headley, will a chargesheet be filed by the NIA, sources also informed.