In a major win for India’s efforts to punish perpetrators of the 26/11 Mumbai terror attack, a US court has ruled that Tahawwur Rana can be extradited to India under the India-US extradition treaty. Pakistan-born Canadian, Rana is a former Pakistani military doctor. He is also a close aide of David Headley and a wanted man in India.
In its ruling on 15th August, the US court said, “The (India-US Extradition) Treaty permits Tahawwur Rana’s extradition.”
While hearing a plea filed by Rana, a panel of Judges of the US Court of Appeals for the Ninth Circuit upheld the decision of California’s Central District Court which had denied his habeas corpus petition. His plea had challenged the certification of the magistrate judge that declared him “extraditable to India” for his role in the Mumbai terrorist attacks.
In a limited scope of habeas review for an extradition order, the panel of Judges held that Rana’s alleged offense fell within the terms of the extradition treaty between the United States and India. This 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”.
It is pertinent to note that Tahawwur Rana was convicted in the United States for his involvement in the 2008 Mumbai terror attacks. He was imprisoned for more than 10 years for supporting terrorist groups and plotting Mumbai attacks.
The panel held that the Non Bis in Idem exception did not apply in Rana’s case because the Indian charges contained distinct elements from the crimes for which he was acquitted in the United States.
The US court relied on the text of the treaty, the State Department’s technical analysis, and persuasive case law of other circuits and held that the word “offence” refers to a charged crime, rather than underlying acts, and requires an analysis of the elements of each crime.
In its ruling, the US court also held that India provided sufficient competent evidence to support the magistrate judge’s finding of probable cause that Rana committed the charged crimes. The three-judge panel included Milan D Smith, Bridget S Bade, and Sidney A Fitzwater.
The US district court tried him on charges of supporting a terrorist organisation that carried out large-scale terrorist attacks in Mumbai. The jury convicted Rana of providing material support to a foreign terrorist organisation as well as conspiring to provide material support to a foiled plot to carry out terrorist attacks in Denmark.
However, the jury acquitted him of conspiring to provide material support to terrorism-related activities to the attacks in India. Following his convictions, he served seven years in prison but after his compassionate release, India made the extradition request to the US so that he could be tried in India for his role in the Mumbai terror attacks.
Rana had contested his extradition on grounds of Non-Bis in Idem (double jeopardy) exception in the India-US extradition treaty. Challenging his extradition proceedings before the Magistrate court, where it all initially began, he argued that India did not provide sufficient evidence to demonstrate probable cause that he committed the charged crimes.
However, the extradition court rejected his arguments and certified that he was extraditable. He then challenged it in district court (the habeas court), but this court also upheld the extradition court’s findings of facts and conclusions of law.
Rejecting his contentions on the grounds of exception in the India-US treaty, Judge Smith said, “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.”
However, it is pertinent to note that Tahawwur Rana still has options to appeal against the 15th August ruling and still has not run out of all the legal options to prevent his extradition to India.
