In a major blow to Pakistani-origin Canadian businessman Tahawwur Rana, who is wanted by India for his involvement in the 2008 Mumbai terror attack, the US Appeals Court for the Ninth Circuit has ruled that he can be extradited to India under the extradition treaty between the two countries.
“The (India-US extradition) treaty allows the extradition of Rana,” the court said in its ruling on August 15.
Delivering a judgement on an appeal filed by Rana, a panel of judges of the US Court of Appeals for the Ninth Circuit upheld the decision of the District Court for the Central District of California dismissing his habeas corpus petition challenging the magistrate judge’s certification declaring him extraditable to India for his alleged involvement in the Mumbai terror attacks.
Under the limited scope of habeas corpus review of the extradition order, the panel held that Rana’s alleged crime fell within the terms of the extradition treaty between the United States and India, which includes a non bis in idem (double jeopardy) exception to extradition “when the person sought has been convicted or acquitted in the requested State of the offence for which extradition is requested”.
Relying on the plain text of the treaty, the State Department’s technical analysis, and persuasive case law from other circuits, the panel held that the term “crime” referred to the offense charged, rather than the underlying acts, and that this required an analysis of the elements of each offense.
The three-judge panel concluded that the co-conspirator’s plea agreement did not compel a different conclusion. The panel held that the non bis in idem exception did not apply because the Indian charges involved elements different from the crimes for which Rana was acquitted in the United States.
In its decision, the panel also held that India had presented sufficient competent evidence to support the magistrate judge’s conclusion that Rana had committed the crimes charged. The three judges on the panel were Milan D. Smith, Bridget S. Bedd and Sidney A. Fitzwater.
Rana, a Pakistani national, was tried in a US district court for allegedly providing support to a terrorist organisation that carried out the massive terrorist attacks in Mumbai. The jury convicted Rana of providing material support to a foreign terrorist organisation and conspiring to provide material support to a foiled plot to carry out terrorist attacks in Denmark.
However, the jury acquitted Rana of the charge of conspiring to provide material support to terrorism related to the attacks in India. After Rana served seven years in prison for those crimes and his compassionate release, India issued a request for his extradition to prosecute him for his alleged involvement in the Mumbai attacks.
Before the magistrate judge who initially ruled on Rana’s extradition (the extradition court), Rana argued that the US extradition treaty with India protected him from extradition due to the non bis in idem (double jeopardy) provision. He also argued that India had not provided sufficient evidence to demonstrate probable cause that he committed the charged crimes.
The extradition court rejected Rana’s arguments and certified that he was extraditable. After Rana presented the same arguments in a habeas corpus petition in the district court (habeas corpus court), the habeas corpus court confirmed the extradition court’s findings of fact and law.
In his appeal, Rana argued that he cannot be extradited on the basis of conduct for which he was acquitted in the United States because the term “crime” refers to the underlying acts. The US government argued that “crime” refers to a charged offense and the elements of each charged offense need to be analyzed.
Thus, according to the government, the treaty allows Rana’s extradition because the Indian charges involve elements different from the crimes for which he was acquitted in the United States.
Judge Smith stated that the clear terms of the treaty, the post-ratification understanding of the signatories, and persuasive precedents all support the government’s interpretation. However, Rana argued that, based on the government’s interpretation of the treaty in Headley’s plea agreement, we should judicially prevent the government from advocating its current interpretation of the treaty. “We decline to do so,” Judge Smith stated.
“Because both parties do not dispute that the crimes charged in India contain elements that are independent of the crimes for which Rana was tried in the United States, the treaty permits Rana’s extradition,” Judge Smith said.
Rana has the option to appeal against this decision. He still has all legal options to prevent his extradition to India.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)