26/11 Mumbai terror attack plotter Tahawwur Hussain can be extradited to India

In a significant blow to Tahawwur Hussain Rana, wanted for his involvement in the 26/11 Mumbai terror attacks, a US court has decided that the he may be extradited to India.
Rana is sought by India for his alleged role in the 2008 Mumbai terror attacks, which Pakistan-based Lashkar-e-Taiba terrorists executed.
“The (India US Extradition) Treaty permits Rana’s extradition,” the US Court of Appeals for the Ninth Circuit said in its ruling on Thursday, as reported by PTI.
A panel of judges from the US Court of Appeals for the Ninth Circuit has upheld a previous decision by the Central District of California, rejecting Tahawwur Hussain Rana’s habeas corpus petition. This petition challenged a magistrate judge’s certification that Rana is extraditable to India for his alleged involvement in the 2008 Mumbai terror attacks.
Currently, in a Los Angeles jail, Rana faces charges related to the 26/11 Mumbai attacks. He is linked to Pakistani-American Lashkar-e-Taiba (LeT) terrorist David Coleman Headley, one of the key conspirators behind the attacks on India’s financial centre.
Rana has the option of appealing against the ruling. He still has not run out of all the legal options to prevent his extradition to India.
PTI reported, under the limited scope of habeas review of an extradition order, the panel held that Rana’s alleged offence fell within the terms of the extradition treaty between the United States and India, which included a Non Bis in Idem (double jeopardy) exception to extraditability “when the person sought has been convicted or acquitted in the Requested State for the offence for which extradition is requested”.
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The panel based its decision on the straightforward language of the treaty, the US State Department’s technical analysis, and influential case law from other circuits. They determined that the term “offence” pertains to the specific crime charged, not the underlying acts, and requires examining the elements of each crime individually.
The three-judge panel also decided that a co-conspirator’s plea agreement did not alter their conclusion. They found that the Non Bis in Idem exception, which prevents being tried for the same offense twice, did not apply in this case because the Indian charges had different elements compared to the crimes for which Rana had been acquitted in the United States.
In its ruling, the panel also affirmed that India had presented adequate and competent evidence to back the magistrate judge’s determination of probable cause that Tahawwur Hussain Rana was involved in the charged crimes. The three judges on the panel were Milan D. Smith, Bridget S. Bade, and Sidney A. Fitzwater.
Rana, a Pakistani national, was previously tried in a US district court on charges related to his support for a terrorist organization responsible for the major attacks in Mumbai. The jury found him guilty of providing material support to a foreign terrorist organization and conspiring to support a thwarted terrorist plot in Denmark.
However, the jury acquitted Rana of conspiring to provide material support to terrorism related to the attacks in India. After Rana served seven years in prison for those convictions and upon his compassionate release, India issued a request for his extradition to try him for his alleged participation in the Mumbai attacks.
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Before the magistrate judge who initially decided Rana’s extraditability (the extradition court), Rana argued that the US extradition treaty with India protected him from extradition because of its Non Bis in Idem (double jeopardy) provision. He also argued that India did not provide sufficient evidence to demonstrate probable cause that he committed the charged crimes, PTI reported.
The extradition court rejected Rana’s arguments and certified that he was extraditable. After Rana raised the same arguments in a habeas petition in district court (the habeas court), the habeas court affirmed the extradition court’s findings of facts and conclusions of law.
In his appeal, Rana argued that he could not be extradited based on conduct for which he was acquitted in the United States because the word “offence” refers to underlying acts. The US government argued that “offence” refers to a charged crime and requires an analysis of the elements of each charged crime.
Thus, according to the government, the Treaty permits Rana’s extradition because the Indian charges contain distinct elements from the crimes for which he was acquitted in the United States.
Judge Smith said that the Treaty’s plain terms, the post-ratification understanding of the signatories, and persuasive precedent all support the government’s interpretation.
As reported by PTI, Rana argued, however, that, based on the government’s interpretation of the Treaty in Headley’s plea agreement, we should judicially estop the government from advocating for its current interpretation of the Treaty. “We decline to do so,” Judge Smith said.
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“Because the parties do not dispute that the crimes charged in India have elements independent from those under which Rana was prosecuted in the United States, the Treaty permits Rana’s extradition,” Judge Smith said.
The 2008 Mumbai terror attacks resulted in the deaths of 166 people, including six Americans. During the more than 60-hour siege, ten Pakistani terrorists targeted and killed individuals at several iconic and crucial locations throughout Mumbai.
(With inputs from PTI)