Pakistani-origin Canadian businessman Tahawwur Rana, a key accused in the 2008 Mumbai terror attack, has opposed his extradition to India, arguing that he has previously been acquitted of the offences for which his extradition is sought.
Rana, 59, a childhood friend of David Coleman Headley, was re-arrested on June 10 in Los Angeles on an extradition request by India for his involvement in the 2008 Mumbai terror attack in which 166 people, including six Americans, were killed. He has been declared a fugitive by India.
Pakistani-American Lashkar-e-Taiba (LeT) terrorist Headley was involved in plotting the 2008 Mumbai terror attack. He was made an approver in the case, and is currently serving a 35-year prison term in the US for his role in the attack.
The motion in opposition of Rana's extradition was filed by his attornies early this week before the US District Court Judge in Los Angeles Jacqueline Chelonian.
Rana's extradition is barred under Article 6 of the United States-India extradition treaty with India because he has previously been acquitted of the offences for which extradition is sought, and under Article 9 of the Treaty because the government has not established a probable cause to believe that Rana committed the alleged offences, his attorneys argued.
The US government, which is supporting his extradition, expected to file its motion soon.
"This is the rarest of cases: the government seeks to extradite Tahawwur Rana to India to face the death penalty based on alleged criminal conduct for which an American jury acquitted him," Rana''s attorneys said.
"The US government seeks to accomplish this inequitable result by reading... double jeopardy, provision of the extradition treaty contrary to its text, to international and Indian law, to the interpretation the government gave that provision in its plea agreement with Rana''s alleged co-conspirator, David Headley, and even to United States double jeopardy principles," they said.
The government relies for its required showing of probable cause on the very witness -- Headley -- whose testimony the American jury rejected. The court should dismiss the extradition complaint and deny the request for extradition, they argued.
Rana was previously prosecuted in the United States District Court for the Northern District of Illinois. He was charged with conspiring to provide material support to terrorism in India.
The motion also argues that the US government has failed to establish probable cause to believe that Rana committed the crimes charged in India.
It says that the US government relies for its probable cause showing almost entirely on Headley''s direct-examination testimony and other evidence from the Illinois trial, at which Rana was acquitted on India-related charges.
The government's theory has two essential pillars. One that Headley told Rana he was working with LeT, including in preparation for the Mumbai attack and secondly that Rana furthered Headley''s efforts on LeT''s behalf by, for example, opening the Mumbai office of Immigrant Law Center to provide cover for Headley's surveillance of potential attack sites and helping Headley obtain a business visa for India through the submission of false documents.
His attorney's claim that Headley lied to Rana about his true plans in Mumbai.
"He then brazenly lied to his handler in Pakistan -- telling Major Iqbal he was using the USD 25,000 to pay for the office when in fact Rana was paying for it -- to con the Pakistanis out of thousands of dollars," the motion says.
Giving several examples, the motion to oppose extradition says that the government''s probable cause rests on Headley's uncorroborated and at times demonstrably false testimony.
"The Illinois jury rejected that testimony. The government nonetheless insists that the court must accept Headley''s testimony at face value, without any inquiry concerning his credibility," it says.
It would be no less of an "unthinkable imposition" on this court''s duty to "determine independently" whether probable cause supports Rana''s extradition if the court had to swallow uncritically Headley''s false testimony, it said.
"Probable cause may not be a stringent standard, but it requires something more than the say-so of a twice-convicted drug dealer and conman who has repeatedly and admittedly lied to judges, prosecutors, federal agents, his own family, and anyone else necessary to get what he wanted -- particularly because what he wanted here was of utmost importance to him: to avoid a death sentence in the United States and his own extradition to India, where he would surely face execution," his lawyers added.