Headly’s plea bargain ---need for victim opposition

By B.Raman

(March 21, Chennai, Sri Lanka Guardian) The plea bargain entered into by the Federal Bureau of Investigation (FBI) with David Coleman Headley of the Chicago cell of the Lashkar-e-Toiba (LET) in order to persuade him to plead guilty to all the charges againsthim relating to the Mumbai 26/11 terrorist strikes and a planned strike against the Danish newspaper which published cartoons of the Holy Prophet in 2005 summarises the information which had earlier figured in the initial affidavits and the subsequent indictment filed by the FBI in a Chicago court. In addition, it contains some new information which had not figured in the earlier documents. This new information is discussed in this paper.

FIVE TRAINING COURSES:Headley attended the following training courses of the Lashkar-e-Toiba (LET) in Pakistan: (a).February 2002:a three-week ideological course on the merits of waging a jihad. (b). August 2002: a three-week course in the use of weapons and grenades and other skills. (c). April 2003:a three-month course in close combat tactics, use of weapons and grenades, and survival skills. (d).August 2003: a three-week course in counter-surveillance.(e). December 2003--a three- month course in combat and tactical training.

In late 2005, Headley entered into a conspiracy with four members of the LET identified only as A,B,C and D "to deliver, place, discharge and detonate explosives and other lethal devices in, into and against places of public use, state and government facilities, public transportation systems, and infrastructure facilities in India with the intent to cause death and serious bodily injury, and with the intent to cause extensive destruction of such places and facilities which such destruction would likely result in major economic loss." The plea bargain adds:"In or around late 2005, Headley met with LET members A, B and D, and received instructions to travel to India to conduct surveillance of various locations in India, including places of public use, and state and government facilities. "

The above wording indicates that this was a conspiracy probably unrelated to Mumbai 26/11 and involved the planting of explosives in public places and infrastructure of economic importance. The plea bargain makes a distinction between a "Conspiracy to Bomb Places of Public Use in India " and a "Conspiracy to Murder and Maim in India." The second conspiracy relates to 26/11. What is the first conspiracy about? Does it refer to the series of explosions in India in 2005 and 2006, including the explosion in New Delhi in October 2005 and the suburban train explosions in Mumbai in July 2006? Did Headley play any role in those explosions? However, it is evident from the plea bargain that his visits to India started after the suburban train explosions. He was not in India on behalf of the LET before September 2006.

FIRST VISIT TO INDIA:In or around September 2006, Headley made his first visit to India. " During this trip, defendant conducted extensive videosurveillance of various locations in India, including, but not limited to, the Taj Mahal Hotel.After this trip, defendant met in Pakistan with various co-conspirators, including but not limited to members of Lashkar e Tayyiba, provided them with the video recordings he had made and discussed with the co-conspirators the video and the surveillance he had conducted. Further, defendant received instructions to return to Mumbai and perform additional surveillance."

Thus, the planning for 26/11 would seem to have started around September 2006. In describing his five visits to India before 26/11, the plea bargain repeats every time that on his return to Pakistan from India Headley met "with various co-conspirators, including but not limited to members of Lashkar eTayyiba." This indicates that according to Headley, the conspiracy involved not only the LET, but also others. Who are those others? State actors such as serving and retired army and intelligence officers? The plea bargain is silent on this point.However, the references in the plea bargain to his discussions in Pakistan after his visit to Copenhagen do not refer to his meetings with prople other than LET members, Ilyas Kashmiri and his associate (Pasha). This gives rise to a possible inference that while State actors were involved in the conspiracy against India, they were not in the conspiracy against Denmark.

SECOND VISIT TO INDIA: "In or around February 2007, defendant returned to Mumbai and conducted video surveillance of various locations, including, but not limited to, extensive video of the second floor of the Taj Mahal Hotel in Mumbai, India. After this trip, defendant again met in Pakistan with various co-conspirators, including but not limited to members of Lashkar eTayyiba, provided them with the video recordings he had made and discussed with the co-conspirators the video and the surveillance he had conducted."

There are two significant points relating to his first and second visits in the plea bargain. While talking of his first visit, the plea bargain says he " conducted extensive videosurveilance of various locations in India " including but not limited to the Taj Mahal Hotel." In its reference to his second visit, the plea bargain refers only to Mumbai and says: "He conducted videosurveillance of various locations including but not limited to extensive video of the second floor of the Taj Mahal Hotel in Mumbai."

During his first visit in September 2006, he travelled to a number of places in India, including Mumbai. What are those places? During his second visit, he travelled only to Mumbai. During his first visit, he took video pictures of the Taj Mahal Hotel in general. During his second visit, he was asked to take video pictures of the second floor of the Taj Mahal Hotel. Why?

THIRD VISIT TO INDIA: "In or around September 2007, defendant returned to Mumbai and conducted additional surveillance, as instructed. After returning to Pakistan, defendant again met with various co-conspirators, including but not limited to members of Lashkar e Tayyiba,provided them with the video recordings he had made and discussed with the co-conspirators the video and the surveillance he had conducted."

In or about March 2008, he met with the co-conspirators in Pakistan and discussed potential landing sites in Mumbai for a team of attackers that would arrive by sea. "Following this discussion, defendant was ordered to return to Mumbai to perform additional surveillance and locate possible landing sites."

Between September 2006 and March 2008, the conspiracy focussed on possible attacks on targets in Mumbai, including the Taj Mahal Hotel. The first talk with the LET and others of the attacks being mounted from the sea took place in March 2008. Did the idea of a sea-borne attack come from Headley? The plea bargain is silent.

FOURTH VISIT TO INDIA: In or around April 2008, Headley returned to Mumbai "with a global positioning system(“GPS”) device and performed the surveillance,including taking boat trips in and around the Mumbai harbor and entering locations in the GPS device. After returning to Pakistan, defendant again met with various co-conspirators,and, among other things, advised them of his recommendations as to potential landing sites.During these meetings, defendant learned that attack plans were being delayed, in part, to wait for when the sea was calmer."

The fourth visit was devoted to the collection of data to facilitate a sea-borne attack. It may be recalled that sections of the Indian media had reported that according to Kasab, the only Pakistani terrorist caught alive, who is now facing trial before a Mumbai court, the attack was originally planned for September,2008, but was postponed due to reasons not known to him.

FIFTH VISIT: In or around July 2008, Headley returned to Mumbai and conducted extensive video surveillance of various targets, including but not limited to the Taj Mahal Hotel, the Oberoi Hotel, the Chabad House, the Chhatrapati Shivaji Terminus train station, the Leopold Café, as well as potential landing sites for the team of attackers. "After this trip, defendant again met several times in Pakistan with various co-conspirators, including but not limited to members of Lashkar e Tayyiba, provided them with the video recordings he had made and discussed with the co-conspirators the video and the surveillance he had conducted."

Thus, between March 2008, when the decision to attack by sea was taken, and July 2008, when Headley made his fifth and last pre-26/11 visit to Mumbai, a decision was taken by the co-conspirators to expand the list of targets to include----in addition to the Taj Mahal Hotel--- the Leopald Cafe, the Oberoi Hotel, the Narriman House and the railway terminus.

On his return from his fifth visit to India,in addition to other meetings, Headley met with Lashkar Member A on several occasions and at several locations. "Lashkar Member A advised defendant of a number of details concerning the planned attacks, including that a team of attackers was being trained in a variety of combat skills, the team would be traveling to Mumbai by sea and using the landing site recommended by the defendant, the team would be fighting to the death and would not attempt to escape following the attacks.The Chhatrapati Shivaji Terminus train station would be one target of the attacks, and the team would be using a GPS device and remain in telephonic contact with Lashkar Member A during the attacks."

The plea bargain refers specifically to four LET handlers of Headley, who are merely identified as A,B,C and D. Of these, LET member A seems to be the most important. He informed Headley in a personal one-to-one meeting after his fifth visit to Mumbai of the details of the planned attack. He also said it would be a suicidal attack and that the attackers would remain in contact with A during the attacks. Headley had several meetings at different locations with A. During a November meeting held in Karachi, A sought Headley's help in mounting an attack in Copenhagen. Headley's last contact with A was in March 2009 when A informed him that the LET was withdrawing from the Copenhagen conspiracy due to the post-26/11 pressure on it. The plea bargain does not say whether the March 2009 contact was personal or over telephone or by E-mail. Is LET member A Zakiur Rahman Lakhvi, who is believed to have orchestrated the conspiracy? The plea bargain is silent. The plea bargain refers to a personal meeting of Headley with A in Pakistan in January 2009. According to Pakistani media, by that time Lakhvi was already in jail after having been arrested by the Pakistani authorities for his involvement in 26/11. If the presumption that Lakhvi is A is correct, where did Headley meet him? In jail? The plea bargain is silent.

VISIT TO INDIA AFTER 26/11: Headley traveled to India in or about March 2009 to conduct additional surveillance.Among other locations, he conducted surveillance of the National Defense College in Delhi, India, and of Chabad Houses in several cities in India.

COPENHAGEN CONSPIRACY: "In or about early November 2008, defendant met with Lashkar Member A in Karachi,Pakistan, and was instructed to travel to Denmark to conduct surveillance of the Copenhagen and Aarhus offices of the Danish newspaper Morganevisen Jyllands-Posten (the “Jyllands-Posten”), in preparation for an attack on the newspaper in retaliation for its publication of cartoons depicting the Prophet Mohamed. Following this meeting, defendant informed co-defendant ABDUR REHMAN HASHIM SYED (“Pasha”) of his assignment. Pasha stated to defendant words to the effect that if Lashkar did not go through with the attack, Pasha knew someone who would. Although not identified by name at the time, defendant later learned this individual to be co-defendant ILYAS KASHMIRI. Pasha previously had stated to defendant that he had been working with KASHMIRI and that KASHMIRI was in direct contact with a senior leader for Al Qaeda.In or around December 2008, defendant met with Lashkar Member A and again discussed an attack on the Jyllands-Posten facility. More specifically, defendant and Lashkar Member A discussed the scope of the attack. When defendant suggested that the focus be on those responsible, referring to killing the editor and cartoonist, Lashkar Member A stated that “all Danes are responsible.”

"In or around late January 2009, defendant met separately with Lashkar Member A and Pasha in Pakistan concerning the planned attack on the newspaper and provided each with videos of his surveillance. At about the same time, Pasha provided to defendant a video produced by the media wing of Al Qaeda in or around August 2008. The video claimed credit for the June 2008 attack on the Danish embassy in Islamabad, Pakistan, and called for further attacks against Danish interests to avenge the publication of the cartoons of the Prophet Mohamed. In or around February 2009, defendant and Pasha met with co-defendant KASHMIRI in the Waziristan region of Pakistan. Defendant discussed with KASHMIRI and Pasha the video surveillance that defendant had taken in Copenhagen and ways in which to carry out the attack. KASHMIRI told the defendant that he (KASHMIRI) could provide manpower for the operation and that the participation of Lashkar was not necessary. After this meeting,in or around March 2009, Lashkar Member A advised defendant that Lashkar put the plans to attack the Jyllands-Posten on hold due to pressure on Lashkar resulting from the November 2008 attacks in Mumbai."

In or around May 2009, Headley and Pasha again met with KASHMIRI in Waziristan. KASHMIRI told the defendant that he had met with an European contact who could provide the defendant with money, weapons and manpower for the attack on the newspaper. KASHMIRI directed the defendant to meet with this European contact, and relate KASHMIRI’s instructions that this should be a suicide attack and that the attackers should prepare martyrdom videos beforehand. Among other details, KASHMIRI stated that the attackers should behead captives and throw their heads out of the newspaper building in order to heighten the response from Danish authorities. KASHMIRI stated that the “elders,”who defendant understood to be Al Qaeda leadership, wanted the attack to happen as soon as possible.

It is clear from the plea bargain that the initial ideas for the Copenhagen attack came from the LET in November 2008, but Ilyas Kashmiri took over the project in March 2009 after the LET came under pressure for its involvement in the 26/11 attacks.

The operative part of the plea bargain rules out his extradition to India or Pakistan or Denmark for trial in connection with the 12 charges relating to Mumbai and Copenhagen to which he has pleaded guilty. Since he has pleaded guilty to two conspiracies relating to India----26/11 and pre-26/11--- he cannot be extradited to India in respect of any offence committed by him on or before 26/11. An extradition request is theoretically possible if Indian investigators find evidence of his involvement in a crime in India after 26/11. We should see whether we can seek his extradition in connection with the Pune explosion of February 13,2010, since he had played a role in the collection of operational information from Pune. The Pune blast is not covered by the plea bargain.

The plea bargain indicates that Headley has had a criminal record in the US since 1989. In or about 1988, he was convicted in the United States District Court for the Eastern District of New York of conspiracy to import heroin into the United States and sentenced on January 5, 1989, to four years’ imprisonment. On March 27, 1995, he was found to have violated the terms of his supervised release,and was sentenced to six months’ imprisonment. On July 18, 1997, he was convicted of conspiracy to import and possess heroin with the intent to distribute it and sentenced on November 7, 1997, to eighteen months’ imprisonment.

As part of the plea bargain, Headley has voluntarily given up his right to a formal trial with production of evidence and cross-examination of witnesses.He has also given up his right to appeal against any sentence imposed by the court on the basis of his guilty pleas. He has made two formal commitments of co-operation with the FBI. The first commitment relates to judicial proceedings of US authorities. The second to judicial proceedings of foreignh countries. His commitment relating to foreign countries reads as follows: "Defendant further agrees that, when directed by the United States Attorney’s Office, he will fully and truthfully testify in any foreign judicial proceedings held in the United States by way of deposition, videoconferencing or letters rogatory." He has not made a formal commitment of letting himself be interrogated by a foreign country. He has only made a commitment of subjecting himself to any foreign judicial proceedings if held in the US. That is, he has agreed to give testimony in any foreign judicial proceeding held in US territory. This judicial proceeding could be by either India or Pakistan or Denmark. It would be useful for India to check with Denmark what they intend doing about this.

While one of the major charges against Headley relates to the murder of six American nationals during the Mumbai terrorist strike, the plea bargain has avoided touching upon questions such as who took the decision to kill foreign nationals, including Americans, and what was the role of the Pakistani State agencies in taking this decision.

The plea bargain becomes valid only when accepted by the court. The court has the discretion to reject the plea bargain and order a formal trial with or without jury. This poses the interesting question: Can the relatives of any of those kiiled by the terrorists appeal to the court not to accept the plea bargain, but to go ahead with the trial in order to find out the full truth behind what happened in Mumbai . The wives of the brave police officers killed by the terrorists should mobilise the relatives of all those----Indians and foreigners--- killed by the terrorists and send a joint appeal to the court to reject the plea bargain and to hold a trial in order to find out the truth. Will somebody pass this on to the relatives of those killed?

( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-mail: seventyone2@gmail.com )