Headley may still be available to Indian investigators

Chicago, March 19 (IANS) Mumbai terror plotter David Coleman Headley's guilty plea on the condition that he be spared the death penalty as well as extradition to India is not as big a setback as it might appear from New Delhi. There is enough sting in his plea agreement to ensure that Headley is available to Indian investigators looking into the larger conspiracy related to the overall planning of the Mumbai attacks.

The 36-page plea agreement specifically enlists the conditions for cooperation. It requires him to "fully and truthfully cooperate in any manner in which he is called upon to cooperate" by a representative of the United States Attorney's Office for the Northern District of Illinois.  From the Indian standpoint what is crucial is that it requires him to "fully and truthfully testify in any foreign judicial proceedings held in the United States by way of deposition, videoconferencing or letters rogatory."

Although Headley's attorney JohnTheis did not directly answer a question from IANS whether Indian investigators would be able to directly interrogate him, there is enough room in the agreement to satisfy New Delhi's misgivings even though it has to be done inside the US. Informal conversations with those in the know suggest that there are pretty good chances that Indian investigators will be able to obtain their answers from Headley in a manner that satisfies their needs.

In this context it is important to note the reports that the Danish authorities were able to question him in connection with the plot to bomb the office of the Jyllands-Posten newspaper which had published a cartoon about the Prophet Mohammed that Muslims around the world found offensive. Although there is no official confirmation here that the Danes indeed questioned him, it is not altogether inconceivable that it actually happened.

While recognizing that dynamic of Indian investigators interrogating a Pakistani American is fundamentally different compared to the Danes doing so given the nature of India-Pakistan relations, with Headley having been assured of no extradition it is not such a bad deal for him. The agreement also assures Headley that he will not be extradited either to Pakistan or Denmark.

When and if Indian investigators do get access to him, it will obviously be within the confines of what the US law allows of such interactions. It is more than likely that while laying down not being extradited as one of his conditions, Headley would have been conscious of the hostile environment in which he would have been interrogated in India. As a US national and under the criminal justice system here he would have been treated with much more restraint than he might have been in India. In any case his decision to cooperate fully with the authorities soon after his arrest in October, 2009 also ought to have blunted anything more unconventional that might have been in store for him.

It is possible that very early on Headley's attorneys made his further cooperation conditional upon taking the death penalty and extradition off the table. As if to extenuate these conditions, Theis told reporters after the court hearing today that Headley's cooperation was "significant" enough to have saved "hundreds, if not thousands, of life." However, he did not specify whether since his arrest he had revealed actionable intelligence that thwarted any active impending attacks.

While the Indian media is agog with Headley being a double agent, working for the US Drug Enforcement Agency (DEA), who went rogue, there is nothing to credibly back that claim yet. A senior DEA official described the assertion that Headley was a double agent as "absurd."  It is next to impossible to prove such a claim unless someone among his handlers chooses to explicitly leak details about that entanglement. The idea that some elements of the US government, namely the DEA/intelligence community, may be protecting one of their own by taking off the death penalty as well as extradition, is fraught with fantastic 24/7 television possibilities but it has not yet been proven.

The fact that he has pleaded guilty to all the 12 terrorism charges which would most likely expose him to a life sentence should dilute some of the speculation about Headley being a double agent gone rogue. The date for his sentencing has not been fixed but whenever that happens the sentencing judge is not obliged to reduce his potential life imprisonment merely because he has been furnishing the US with significant intelligence. The fact that Headley's plot took lives of six American nationals, including one Indian American, Sandeep Jaswani, is likely to weigh on any sentencing judge's mind, not to mention the more than 160 others who died in the terror attacks.