Pakistani-American terrorist David Coleman Headley is deposing before a Mumbai court via video-link from the United States, in connection with the November 2008 terror attacks case on the city. Over the course of his deposition, currently in its third day, Headley has made claims that will likely add weight to India’s stance on the involvement of some of Pakistan’s ISI officers, Lashkar-e-Tayyaba (LeT) chief Hafiz Saeed, LeT commander Zaki-ur- Rehman Lakhvi and others in the attacks.
Headley has confirmed the role of Saeed and Lakhvi in the attacks, as well as the involvement of three ISI officers – identified as Major Ali, Major Iqbal and Major Abdul Rehman Pasha.
The Wire’s Preeti John spoke to Sebastian Rotella, a senior reporter at ProPublica who closely tracked the 2011 trials of Headley and his accomplice Tahawwur Rana, to understand the many questions the Headley deposition is likely to throw up. Rotella won the Urbino Press Award in 2012 for excellence in journalism. His investigation of 26/11 – ‘A Perfect Terrorist’ – was nominated for an Emmy and the online version of the story resulted in his third Overseas Press Club Award in 2011. Rotella is also the author of five books, including an e-book on the Mumbai attacks and ‘The Convert’s Song’, a novel about international terrorism.
What is the significance of Headley’s latest testimony?
I do not think it is very significant in the sense that he has not said anything new or important that I am aware of. But, the significance is that he has repeated and ratified, for the Indian justice system, the statements he had has made in prior testimony and interrogations. As in the past, he has outlined the well-documented evidence supporting accusations of the ISI playing a direct role in the Mumbai attacks and acting as a sponsor, partner and protector of Lashkar-e-Tayyaba.
How credible a witness is Headley, given his switch from being an informant for the US Drug Enforcement Agency to an LeT operative?
Headley is very credible, actually. Throughout his odyssey from drug trafficker, to DEA informant, to extremist, to Pakistani spy, he showed a penchant for betrayal and deception. At the same time, during that odyssey he usually told the truth when his back was to the wall. He is a credible and consistent witness when it comes to the Mumbai case and his activity for the LeT, al Qaeda and the ISI.
When the FBI first arrested him in 2009, he spent two weeks providing detailed and unprecedented evidence about his terrorist and espionage activity. Among other things, he showed remarkable first-hand knowledge of the Mumbai and Denmark plots and the workings of the Pakistani intelligence and terrorist networks. The FBI and other agencies put a lot of work into double-checking and confirming his allegations, and almost everything he said proved to be accurate. His testimony is reinforced by abundant supporting evidence: emails, intercepted phone calls, credit card records, videos, testimony of other witnesses, and investigation and intelligence-gathering by US, European, Indian and Pakistani counter-terror agencies.
What specific deal has India offered him for his testimony? Is he now beyond prosecution under Indian law?
Headley signed an ironclad plea agreement with the US government that spared him the death penalty and extradition to India. In return, he promised to provide testimony and intelligence to the US and its allies whenever it was needed, and he has fulfilled that requirement in this case with his deposition to Indian authorities. As far as I know, that US plea deal puts him beyond prosecution in India and nothing can or will change that, unless he were to violate the terms of the deal, which seems extremely unlikely.
Once Headley has served his sentence, would he still be vulnerable to Indian prosecution if he were to leave the US? Or has the Indian government agreed not to prosecute him in exchange for his cooperation?
I assume if Headley serves his time and is freed, he would still be theoretically vulnerable to Indian prosecution if he left the US. My understanding is that his US plea deal requires him to testify for the Indian courts if that is what the US Justice Department wants. I am not aware of any agreement by the Indian government not to prosecute him, and I would find it hard to believe the Indian government would enter into such an agreement.
What is the status of Headley’s implication of Ishrat Jahan, the woman killed in an encounter by the Gujarat police that the CBI says was staged?
I really do not know enough about this particular issue to give you a helpful answer. My understanding is that he essentially repeated to his questioners a comment about this case that he had heard in passing from a LeT chief. But as I said, I’m not a position to provide meaningful analysis on this point.
Did Headley’s work as a US informant affect the investigations of him? Several tip-offs linked him to terrorist activities, yet only preliminary investigations were conducted.
As you know, at ProPublica we spent years digging into this mystery and others in this voluminous case. It seems clear that, after 9/11, Headley’s work as a DEA informant expanded to include counter-terrorism and there were hopes of using him in Pakistan to gather intelligence on extremist networks there. That, I believe, is why his probation was hurriedly ended in the fall of 2001 and he was allowed to go to Pakistan. I know that people in India, including counter-terror officials whom I respect and admire, continue to suspect that Headley kept working for US intelligence even during the Mumbai attacks. In their view, he was a double agent and that explains the repeated failure to stop him sooner despite at least half-a-dozen cases of human source tips and FBI inquiries about his extremist activity in 2001, 2002, 2005, and 2007-2008.
At first, I shared those suspicions. But not anymore. I think I am one of the reporters who spent the most time talking to investigators and intelligence officials around the world about this case. I have seen thousands of pages of information, including the materials from the Snowden files that we reported about in the New York Times in late 2014 and in the Frontline documentary ‘American Terrorist’ in 2015. I have not found anything showing that Headley did significant intelligence work on counter-terrorism after he joined the LeT in late 2001/early 2002. I have reached the conclusion that Headley’s role gathering intelligence on the LeT for the DEA (with the awareness but not involvement of other US agencies, I believe) petered out years before the Mumbai attacks, and that he did not provide much intelligence of value in any case. His contacts with his former DEA handler once he’d moved to Pakistan were sporadic and brief as far as I know. All the intelligence I know about that was gathered by US and British agencies about a developing LeT plot to attack Mumbai came from sources other than Headley.
So to answer your question: when he was first questioned by US agents in New York in October 2001 pursuing a tip about his extremist beliefs, the fact that he was still a DEA informant no doubt shielded him from more aggressive investigation although he was already radicalised. Therefore, the inquiry did not, tragically, prevent US agencies from ending his probation early, which enabled him to go to Pakistan and launch his deadly trajectory toward Mumbai. But he really was not that involved in Islamic extremism at that point on an operational level, he hadn’t yet trained with the LeT or gone to work for the ISI. With regard to the subsequent tips over the next seven years, the failures to investigate him more aggressively resulted partly from the fact that he had been a DEA informant in the past and that the FBI therefore did not see him as a threat. But the missed opportunities also related fundamentally to flaws in the FBI’s threat tracking system and in communications among and within agencies (DEA, FBI, CIA, NSA, Department of Homeland Security and the State Department) that prevented investigators from finding the abundant existing information about his extremist activity in data bases and raw intelligence – even after the Mumbai attacks.
It is ultimately an issue of a flawed system, human error, an overwhelming workload and the difficulty of spotting a threat from an individual who did not fit the profile of the typical terrorist.
When a tip finally came in from British intelligence to the Chicago field office of the FBI in the summer of 2009, a young agent handled it diligently and aggressively and the system kicked into gear, resulting in an impressive multi-agency investigation that brought him to justice in time to prevent the Denmark attacks. But sadly, Mumbai had already happened.
Given that Headley’s testimony has established the ISI’s involvement in the attacks, what can India do to push the US to press Pakistan to crack down on institutional/state backed terrorism?
I am not sure what India can do at this point except to keep pushing. It seems increasingly clear that the Pakistani government either cannot or does not want to arrest the suspects who have eluded justice in this case despite abundant evidence against them: Sajid Mir of Lashkar and Major Iqbal of the ISI, to name just two. And it also seems clear that Pakistan has done little to crack down on the LeT, and that the ISI has allowed the LeT bosses who were actually arrested to continue conducting terrorist activity from prison while their unfinished trial has become a farce.
I think India should continue to urge the US to push the Pakistanis to arrest specific individuals accused in the case and, perhaps, something will eventually change in the geopolitical landscape that will induce Pakistan to take action. It is a faint hope, but there are previous cases of terror suspects who seemed to enjoy impunity and were finally captured years later. The obvious avenue for the US would be to threaten to withhold financial aid to Pakistan unless there is meaningful action on the case. I do not think the arrest of mid-level figures such as Mir and Major Iqbal would plunge Pakistan into chaos.
Given that US nationals were killed in 26/11, doesn’t the US have an obligation under its own laws to go after the ISI individuals named by Headley, as well as Hafiz Saeed? What is that status of US investigations along those lines?
Yes, and the FBI and other agencies have been pushing for years for action after taking the unprecedented step of indicting Major Iqbal, Headley’s alleged ISI handler, in federal court in Chicago for the murder of those six US citizens. Sadly, Pakistan has not responded. The US government has a good idea of who Major Iqbal and the other ISI officers named in the case are. Yet my understanding is that Major Iqbal has not been punished, but rather promoted. The FBI has a long memory and it will keep pushing for the arrest of those who have been charged. But there is only so much that can be done if the government of Pakistan refuses to cooperate. Indians are justifiably outraged about this situation, and a lot more Indians died in Mumbai than Americans. On the other hand, Pakistan and India have been mortal foes for a long time, while Pakistan is supposedly an ally of the US. If you think about it from that angle, it makes the Pakistani failure to seek justice outrageous for Americans as well.
Despite the US reward for his capture, and evidence from India, the US and now Headley’s testimony, Hafiz Saeed remains free. How can what Headley said be used to push Pakistan to arrest Saeed?
That’s a politically explosive issue in Pakistan. The US government has to balance its quest for justice with real-world issues on the ground in Pakistan. But this is not unlike any prosecution of a criminal organisation: the first thing that has to happen is the arrests of Sajid Mir, Major Iqbal and other accused conspirators against whom there is strong evidence of direct involvement. Then the US case could build toward an arrest/prosecution of Saeed. But something has to change on a geopolitical level that convinces Pakistan to take action, or Washington has to get tougher and give Pakistan an ultimatum, perhaps using money and other kinds of aid as leverage.