‘Most complex case’: How India got hold of Tahawwur Rana arrested by US in 2009

New Delhi: Mumbai terror attacks co-conspirator Tahawwur Rana’s extradition was one of the most complex cases pursued by Indian authorities, involving multiple visits to the US, convincing the American side about due process, and ensuring the former Pakistan Army officer remained in custody when he was about to be released, officials said on Thursday.

Rana, 64, a Pakistan-born Canadian citizen, was arrested by US authorities on October 18, 2009, two weeks after his childhood friend David Coleman Headley was held for his role in planning and executing the attacks by Lashkar-e-Taiba (LeT) that killed 166 people.

“Getting Rana is a big deal from the point of view of ensuring justice for the victims of the Mumbai attacks,” said an Indian official who declined to be named. “It brings some sense of closure at a time when Pakistan has failed to prosecute the main conspirators.”

Rana was tried on three counts in the US – conspiracy to support terrorism in India and Denmark and providing support to LeT, a foreign terrorist organisation. Simultaneously, India declared Rana a wanted person and issued an arrest warrant on August 28, 2018, on charges of involvement in conspiracy, waging war, a terrorist attack and committing murder.

India also sent an extradition request for Headley, but US authorities refused to give him up when he pleaded guilty to 12 terror-related charges, including multiple counts associated with the Mumbai carnage and the foiled plot in Denmark. Headley’s plea bargain agreement included a non-extradition provision. “Headley was a double agent and the US would never give him up,” the official quoted above said referring to the widely-known fact that the man worked for an American agency.

Headley testified for the prosecution at the trial of Rana, who was convicted on June 9, 2011, of involvement in the terror conspiracy in Denmark and providing support to LeT, but acquitted in the terror conspiracy in India. On January 17, 2013, a US district court sentenced him to 168 months in prison and he was cleared for release on compassionate grounds during the Covid-19 pandemic after serving seven years.

As he was to be released, Rana was rearrested on June 10, 2020, following India’s extradition request. A NIA team first visited the US in 2010 to question Headley, but Rana was not questioned at that time. In 2018, NIA made another visit to collect evidence.

After extradition proceedings for Rana began in 2020, NIA teams made multiple visits to assist US prosecutors .

Rana was represented by British barrister Paul Garlick, while senior advocate Dayan Krishnan, who handled sensitive cases such as the Delhi gang rape and corruption in the Delhi Commonwealth Games , went to the US to assist India’s extradition efforts pro bono.

At court hearings, US prosecutors argued Rana was aware of Headley’s links with the LeT, and that by assisting Headley and giving him cover for his activities, Rana was supporting LeT and its associates.

To save himself, Rana attacked the credibility of Headley – the prosecution’s main witness – and said the court should discount Headley’s testimony because he was a “serial cooperator”.

Rana’s arguments weren’t accepted by courts and on May 16, 2023, a district court in California cleared his extradition to India.

‘Double jeopardy’ provision argued to avoid extradition

Rana moved a habeas corpus petition in California, citing double jeopardy – whereby a person can’t be tried for the same crime twice – and said his extradition was barred under the extradition treaty between India and the US. However, an analysis of the treaty by the US departments of justice and state – the agencies which negotiate extraditions with other countries – confirmed that Article 6 of the treaty “will not preclude extradition in situations in which the fugitive is charged with different offences in both countries arising out of the same basic transaction”.

Krishnan, in his legal memorandum to the court, said “Indian constitutional law on double jeopardy, like American constitutional law, determines whether two offences are the same by first examining whether the two offences carry the same elements”. Krishnan was only assisting as an Indian lawyer cannot argue in US court proceedings.

The court finally rejected Rana’s petition on August 10, 2023. Rana approached the court of appeals for the ninth court, which rejected his plea on August 15, 2024.

He then moved the US Supreme Court on November 13, 2024. The apex court rejected his plea on January 21. The extradition was approved by the Donald Trump administration during Prime Minister Narendra Modi’s visit to the US in February, and secretary of state Marco Rubio signed the order.

Desperate to stop his extradition, Rana again approached the apex court. On March 6, justice Elena Kagan rejected this application, after which Rana approached the court of Chief Justice John G Roberts Jr, who too refused to entertain his plea this Monday.

A second official, who too didn’t want to be named, said the process of getting to Rana “wasn’t easy”. He added, “It takes a long time for such a complex case to move through the US system, from the California courts to the Supreme Court. But the extradition also reflects the way bilateral relations have strengthened.”

Every time Rana’s legal team raised concerns about India’s jails and claimed he wouldn’t get a fair trial in India, the Indian side countered with the way due process was followed in the case of Ajmal Kasab, the Pakistani LeT fighter who was captured alive in Mumbai.

“We made it clear Kasab’s case demonstrated the principle of natural justice was followed and that he wasn’t tortured,” the second official said. “It also negated Rana’s claim that he wouldn’t get a fair trial.”

Kasab was executed in November 2012 after the Bombay high court and Supreme Court upheld the death sentence given to him by a lower court.

The Indian government gave assurances to US authorities that Rana will be protected in jail and not be tortured in custody. India also assured them Rana will only be tried for the offences he was extradited for.

Indian officials are hoping that further interrogation of Rana will lead to more revelations about the role of the LeT and Pakistan Army officers in the Mumbai attacks.