CONSIDERING THAT Tahawwur Rana, a Pakistani origin Canadian national could face up to 30 years in prison after a Chicago court found him guilty of having links with the Pakistan-based terrorist organisation Lashkar-e-Toiba (LeT) and plotting a terror attack against a Danish newspaper, the carping noises being heard in India over his acquittal on the charge of facilitating the 26/11 terror attacks in Mumbai sound somewhat incongruous. Rana being found guilty of involvement in 26/11 would not have made it any easier to punish the real masterminds of that outrage, all of whom are comfortably ensconced in Pakistan, some inside jail from where they are conducting their murderous business and others strutting about freely, making hate speeches against India and praying for the soul of Osama bin Laden in public meetings. Nor for that matter is Rana’s acquittal going to be a setback in bringing to justice those who planned and directed that barbaric attack. To put it quite simply, the Rana trial is not really material to the larger 26/11 case.
Rana was at best a bit player in 26/11, who ostensibly was motivated by two factors: one, he believed that by helping the Inter Services Intelligence (ISI) spy on India he would be able to make amends for his desertion from the Pakistan Army; and second, he probably thought that aiding the LeT in the massacre of kafirs (infidels) would earn him some sawab (rewards in the afterlife). His being indicted for involvement in the 26/11 attacks was more of an afterthought, because originally he was arrested for being part of a terrorist conspiracy to attack the Danish newspaper that had published caricatures of Prophet Muhammad. It was only the confessional statement of David Headley that implicated Rana in the 26/11 conspiracy. But the corroborative evidence that was required to back Headley’s testimony was just not adequate for a jury to pronounce the guilty verdict on Rana.
The reaction in India to Rana’s acquittal in the 26/11 case has, however, been quite over the top. Not only does it smack of an utter lack of understanding of law and procedure, it is even devoid of basic common sense. It is one thing for Indian officials to express ‘disappointment’ over Rana’s acquittal, and quite another for them to contemplate filing a chargesheet against both Rana and Headley. Leave aside the fact that it will be practically impossible to secure the extradition of these two characters, there is also the principle of ‘double jeopardy’ that will come into play if these two men are to be tried in India on practically the same charges for which they were tried in the US. But let us, for a moment, assume that India does get hold of these two guys and the issue of ‘double jeopardy’ is not applicable. What, pray, is the new evidence that Indian law enforcement agencies have collected against them (which presumably the American prosecutors did not have) that will stand up in a court of law to convict these two?
This is precisely the reason why the reaction of the BJP to Rana’s acquittal sounds silly. In accusing the Manmohan Singh government of not pursuing the case properly in the Chicago court, the BJP seems to have forgotten that Rana and Headley were arrested and prosecuted by the US of its own volition and not because India had pointed these two guys out. India, in fact, became wise to these ‘spotters’ only after the story broke out in the US and information gathered by Indian investigators subsequently about the activities of Rana and Headley contains nothing that adds to the body of evidence collected and presented in court by the US prosecutors.
Truth be told, had Rana and Headley been tried in India, they would have almost certainly gotten away scot-free. Apart from gaining notoriety as being probably the only country in the world where, after a recent Supreme Court ruling, no action can be taken even against a card-carrying member of any terrorist organisation, including al Qaeda and LeT, India is also a country trying to fight 21st century crime with 19th century laws. No wonder that while Indian investigators have done a fairly good job of collecting information about terrorists, they have been unable to translate these into evidence that can stand in a court of law.
Antiquated laws, poorly resourced law enforcement and security agencies and outdated investigation techniques are in large measure responsible for this state of affairs. Forget about the toothless Unlawful Activities Prevention Act, even in the case of ‘tough’ laws like POTA and TADA, the imagination of the Indian lawmaker stops with making confessions before a designated officer admissible as evidence — a rather problematic proposition particularly if a confession can’t be backed by other corroborating evidence. Therefore, instead of cribbing about Rana’s acquittal on one charge, India should be thankful to the US for two things: one, by giving India access to Headley, it has helped Indian investigators fill in some of the blanks regarding the planning of the 26/11 attacks; and two, it has put away for good two flunkies of the ISI and LeT.
Had Rana been tried in India, he would almost certainly have got away scot-free
India’s real interest in Rana’s trial has less to do with seeking punishment for someone who played only a peripheral role in the entire 26/11 episode and more to do with laying bare in a neutral court of law the ISI’s use of terror as an instrument of foreign policy, particularly against India. This has been achieved despite the not guilty verdict handed down by the US court. By exposing the ISI-LeT nexus in graphic detail, the Rana trial has been an unqualified success for India in terms of propaganda value. What is more, Headley’s testimony only adds more meat to the sensational report filed shortly after 26/11 by the now slain Pakistani journalist, Syed Saleem Shahzad, which revealed that the Mumbai terror plot was originally drawn up by the ISI. While Shahzad claimed that the plan was hijacked by the al Qaeda, Headley’s testimony makes it clear that the plan was not hijacked but outsourced by the ISI to the LeT.
Other than the satisfaction of tarnishing the already terrible image of the Pakistan army and the ISI before the international community, there is little that will come out of the Rana trial in terms of bringing the guilty of 26/11 to justice. Most Pakistanis have responded to the Chicago trial by going into paroxysms of denial, disingenuously pointing to the unsavoury past of Headley to question his credibility as a prosecution witness. What the Pakistani defenders of the ISI and LeT seem to gloss over is that only dysfunctional and disreputable characters like Headley would get sucked into the terrorist underworld where drug smuggling, gunrunning, money laundering and other such criminal activity gets mixed up with State policy and religion to make an explosive cocktail.
But why blame the Pakistanis when the Indian establishment itself has little interest in pursuing the culprits of 26/11. Sure, there is no dearth of lipservice being paid to bringing the masterminds to justice. Nor is there any slackening of the rhetoric on 26/11. But having resumed the composite dialogue process, it is pretty much back-to-business-as-usual with Pakistan and all the noise over 26/11 is more the result of political compulsion rather than any conviction on the part of the Indian establishment.
Sushant Sareen is Consultant, Pakistan Project, IDSA.