India-US extradition treaty: In a major development concerning the extradition of Pakistani-origin Canadian businessman Tahawwur Rana, who is accused of involvement in the 26/11 attacks, a US attorney has said Rana is extraditable to India under the extradition treaty signed between the two countries. This came almost a year after a US court had ordered a stay on Rana's extradition.
Rana's extradition was approved after his detention in a Los Angeles prison in 2020 due to his alleged involvement in the Mumbai terror attacks, in which 10 Pakistani terrorists besieged Mumbai for more than 60 hours, killing more than 160 people, including six Americans. In response, Rana filed a writ of habeas corpus challenging the court order and his extradition was stayed in 2022.
Rana's attorney reasoned that his extradition would be in violation of the US-India extradition treaty. However, Assistant US Attorney, Criminal Appeals Chief Bram Alden said the Canadian businessman was extraditable to India under the plain provisions of the treaty and that India has established probable cause to prosecute him for his role in the 26/11 attacks.
What did the US attorney say on Rana?
Alden said India and the United States have agreed on the meaning of the treaty provision, the non-bis provision in Article 6-1 that should be interpreted based on the elements of the offence and not based on the conduct underlying those crimes. That, he said, was consistent with long-standing Supreme Court double jeopardy precedent.
Alden further said Rana never even attempted to argue that he cannot show that the elements India seeks to prosecute him for were the same as those he was prosecuted for in Chicago in 2011. He said Rana was aware of what was going to happen in India between 2006 and 2008 and there was overwhelming evidence to support probable cause.
"He met with (David) Headley multiple times. There is documentary evidence that supports Hadley's testimony, including the fake visa applications that were provided so that Hadley could operate a fraudulent business in India in order to conduct surveillance, in order to carry out those terrorist attacks," he added.
"It was primarily at the Taj Mahal Hotel, but the terrorists attacked a number of bars, restaurants, and the Chabad House. There were other targets in India that they were attacking in Mumbai. And it was their 9/11. It was a devastating attack over the course of multiple days that resulted in 166 deaths, including six Americans. That is why India wants to prosecute this case and, under the extradition treaty, has every right to do so," he further argued.
What is the India-US extradition treaty?
The Government of the United States of America and the Government of the Republic of India signed an Extradition Treaty on June 25, 1997, which was aimed to enhance cooperation between the law enforcement authorities of both countries and make a significant contribution to international law enforcement efforts. The treaty was signed by former MoS External Affairs Saleem Shervani and then-Deputy Secretary of State Strobe Talbott.
As per the treaty, an offence is extraditable if punishable under the laws of both contracting parties by imprisonment for more than one year or by a more severe penalty. This applies whether or not the laws in the contracting state place the offence within the same category of offences, and whether or not it relates to taxation or revenue or is one of a purely fiscal character.
The treaty outlines that extradition shall be granted for an extraditable offence regardless of where the act or acts constituting the offence were committed. However, extradition should not be granted for a political offence, although the treaty says acts like a wilful crime towards the head of government, aircraft hijacking offences, crimes against internationally protected persons, hostage-taking and more should remain outside the ambit of political crimes.
Article 6 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offence, but it does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings against the person sought.
What does Rana's defence say?
Representing Rana, attorney John D Cline said there's no competent evidence supporting probable cause, and that the treaty does not permit the extradition of a man acquitted by an American jury for prosecution in a foreign country. Cline, in his deposition, said the central question here is whether the “known bis in idem provision” in the US-India extradition treaty, allows the extradition of a man acquitted by the American jury for prosecution in a foreign country.
“That's the question here. The answer to that question is no, and the answer is no for four principal reasons,” Cline said as he listed the four provisions. Rana faces charges for his role in the Mumbai attacks and is known to be associated with Pakistani-American terrorist David Coleman Headley, one of the main conspirators of the 26/11 Mumbai attacks. Rana's defence team at the time said he was manipulated and misled by Headley, according to BBC.
Notably, Rana was convicted in Chicago in 2011 of providing material support to the Pakistan-based terror group Lashkar-e-Taiba, which carried out the Mumbai terror attack and for supporting a never-carried-out plot to attack a Danish newspaper that printed cartoons of the Prophet Muhammed in 2005. However, he was cleared of the more serious charge of helping plot the attack. He was sentenced to 14 years in jail in 2013 and was released in 2020 on compassionate grounds, before being arrested again after India's extradition request.
(with inputs from agency)
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