Pakistani-origin Canadian businessman Tahawwur Rana, who is sought in India for his involvement in the 2008 Mumbai terror attack, is extraditable under the plain provisions of the US-India extradition treaty, a US attorney has told a federal court.
Assistant US Attorney, Criminal Appeals Chief Bram Alden was making a closing argument before the US Court of Appeals for the Ninth Circuit, where Rana has appealed against the order by a US District Court in California that denied the writ of habeas corpus.
In May, Rana, 63, had filed a writ of habeas corpus challenging the court order, which acceded with the request of the US government that the 2008 Mumbai terror attacks accused be extradited to India.
"Rana is extraditable to India under the plain provisions of the treaty, and India has established probable cause to prosecute him for his role in terrorist attacks that resulted in 166 deaths and 239 injuries," Alden said.
In his deposition before the court on June 5, Alden, who left the position last week, said both India and the United States have agreed on the meaning of the treaty provision, the non-bis provision in Article 6-1.
"Both parties have now stated what they intended, that that provision be interpreted based on the elements of the offence and not based on the conduct underlying those crimes. That is consistent with long-standing Supreme Court double jeopardy precedent," he argued.
Rana, currently lodged in a jail in Los Angeles, faces charges for his role in the Mumbai attacks and is known to be associated with Pakistani-American terrorist David Coleman Headley, one of the main conspirators of the 26/11 Mumbai attacks.
"Rana has never even attempted to argue that he cannot show that the same elements India seeks to prosecute him for were those he was prosecuted for in Chicago," Alden said.
Representing Rana, attorney John D Cline said there's no competent evidence supporting probable cause.
Alden said the evidence is overwhelming to support probable cause, that low standard that Rana knew about what was going to happen in India between 2006 and 2008.
"He met with (David) Headley multiple times. There is documentary evidence that supports Hadley's testimony, including the fake visa applications that were provided so that Hadley could operate a fraudulent business in India in order to conduct surveillance, in order to carry out those terrorist attacks," he said.
"There was a phone call, of course, after the fact where Rana said that he was informed about what was going on by one of their co-conspirators in Pakistan. And his praise for what was carried out in a gruesome terrorist attack that killed 166 people, injured 239 more, and cost India USD 1.5 billion," Alden said.
"It was primarily at the Taj Mahal Hotel, but the terrorists attacked a number of bars, restaurants, and the Chabad House. There were other targets in India that they were attacking in Mumbai. And it was their 9/11," he said.
"It was a devastating attack over the course of multiple days that resulted in 166 deaths, including six Americans, he added. That is why India wants to prosecute this case and, under the extradition treaty, has every right to do so," Alden argued.
The extent he wants to raise humanitarian concerns or even concerns about the process, the acquittal, the fact that he is facing extradition, those all get raised and can be raised to the Secretary of State, he said in response to a question from the judge.
Representing Rana, Cline, in his deposition, said the central question here is whether the known bis in idem provision in the US-India extradition treaty, the double jeopardy provision, permits the extradition of a man who was acquitted by an American jury for prosecution in a foreign country on that same conduct.
"That's the question here. The answer to that question is no, and the answer is no for four principal reasons," Cline said as he listed the four provisions.
