Canadian businessman of Pakistani descent Tahawwur Rana | Photo: ANI
New York: In a significant legal victory for India, a US court has approved the extradition of Pakistani-origin Canadian businessman Tahawwur Rana to India where he is sought for his involvement in the horrific 2008 Mumbai terror attacks.
The ruling comes just over a month before Prime Minister Narendra Modi travels to the US on his first state visit at the invitation of President Joe Biden. He will be hosted by President Biden and First Lady Jill Biden for a state dinner at the White House on June 22.
US Magistrate Judge Jacqueline Chooljian of the District Court of the Central District of California issued a 48-page order dated May 16, which was released Wednesday, saying 62-year-old Rana "should be extradited to India" under the extradition treaty between India and the United States.
"The court has reviewed and considered all of the documents submitted in support of and in opposition to the request and has considered the arguments presented at the hearing.
"Based on such review and consideration and for the reasons discussed herein, the court makes the findings set forth below, and certifies to the Secretary of State of the United States the extraditability of Rana on the charged offences that are the subject of the request," the court order said.
Rana, who is currently in the federal lockup in downtown Los Angeles, can appeal in the Circuit Court, which will likely affirm the district court order. Under US law, Secretary of State is the authority who decides whether to surrender the fugitive.
The order noted that the court cannot certify Rana's extradition unless there is probable cause to believe he committed the offences for which extradition is sought.
Citing its reasoning in detail, the order states: "Accordingly, the court finds there is probable cause to believe Rana committed the charged offences as to which extradition has been sought and should be extradited to India under the extradition Treaty between the United States and India."
India had filed a complaint on June 10, 2020 seeking the provisional arrest of Rana with a view towards extradition. The Biden administration had supported and approved the extradition of Rana to India.
In response to a question, a State Department spokesperson told PTI that "we refer you to the Department of Justice for specifics on this case."
"However, we can say that we are committed to confronting terrorism across the world and we deeply value our counterterrorism relationship with India. We continue to call for those involved in the 2008 Mumbai attacks to be brought to justice," the spokesperson said.
Commenting on Rana's extradition order, Ravi Batra, a prominent Indian-American attorney said US Secretary of State Antony Blinken will feel compelled to approve the extradition of the Pakistani-origin Canadian businessman to India as Washington is "joined at the hip” with every nation that suffers from foreign terrorism.
He said the order is “transparent about our legal protocol - given our bilateral extradition treaty - that is needed to pass constitutional muster in our lofty American federal courts.”
Batra noted that the decision now legally goes from a court of law to the Executive Branch's Secretary of State Blinken who will "feel compelled to approve the extradition request as 9/11 was worse than Pearl Harbor and we, the United States are joined at the hip with every nation that suffers from foreign terror.”
He noted that Rana has received significant judicial consideration over almost two years since the hearing, and can still seek, as a right, a direct appeal to the Circuit Court.
Batra said he fully expects the Circuit Court will affirm the certification and extradition order.
"Any further plea for leave to be heard by our Supreme Court, I expect will be denied, unless a legal principle gets identified along the way making it worthy for the Supreme Court of the United States (SCOTUS) to hear and determine Rana's transfer to India, where he will be extradited, and receive yet more due process under India's Constitution,” Batra said.
During court hearings, US government attorneys argued that Rana was aware that his childhood friend Pakistani-American David Coleman Headley was involved with Lashkar-e-Taiba (LeT), and that by assisting Headley and affording him cover for his activities, he was supporting the terrorist organisation and its associates.
Rana knew of Headley's meetings, what was discussed, and the planning of the attacks, including some of the targets. The US government asserted that Rana was part of the conspiracy and there is probable cause that he committed the substantive crime of commission of a terrorist act.
Rana's attorney on the other hand opposed the extradition.
As many as 166 people, including six Americans, were killed during the attacks by the LeT terrorists. Because members of the conspiracy committed acts resulting in death with the intention of causing death, or at a minimum committed those acts knowing its imminent dangers, there is sufficient evidence that the elements for murder would be satisfied, federal prosecutors said.
There is an extradition treaty in place between India and the United States. The judge ruled that Rana's extradition to India is fully under the jurisdiction of the treaty.
India has issued an arrest warrant and charged Rana with the offences on which the United States is proceeding, the judge said.
These include conspiracy to wage war, to commit murder, to commit forgery for the purpose of cheating, to use as genuine a forged document or electronic record, and to commit a terrorist act, waging war, murder, committing a terrorist act and conspiracy to commit a terrorist act.
"The foregoing charged offences constitute extraditable offences within the meaning and scope of the treaty and over which India has jurisdiction," the judge ruled.
The judge said that sufficient competent evidence has been presented to establish probable cause that Rana is the individual who has been charged in India and whose extradition has been sought by India in this action, and that Rana committed the aforementioned offences for which extradition has been sought.
"Based on the foregoing, the court concludes that Rana is extraditable for the offences for which extradition has been requested and on which the United States is proceeding and hereby certifies this finding to the United States Secretary of State," the order said.
"It is therefore ordered that Tahawwur Hussain Rana be and remain committed to the custody of the US Marshal pending a final decision on extradition and surrender by the Secretary of State to India for a trial of the offences as to which extradition has been granted pursuant to Title 18, United States Code, section 3186 and the treaty," the judge ruled.
Last month, official sources in New Delhi said the National Investigation Agency (NIA) was keeping itself in readiness to initiate proceedings in view of the possible extradition of Rana to India.
Nine Pakistani terrorists who were involved in the attack on November 26, 2008 were killed by the Indian security forces. Ajmal Kasab was the only terrorist who was captured alive. He was hanged four years later on November 21, 2012 after a trial.