Three lessons from Chicago trial

Brahma Chellaney
The Economic Times, June 13, 2011

The verdict in the Chicago trial, which coincided with CIA Director Leon Panetta’s unannounced departure for Pakistan, holds three important lessons for India.

The first lesson is that it was wrong on New Delhi’s part to expect the U.S. to try and legally corner the ISI for its role in 26/11 or to help bring to justice the perpetrators of those grisly attacks. The U.S. has its own foreign-policy interests and compulsions. Since its daring raid that killed Osama bin Laden, it has sent four high-level delegations to Islamabad, including one led by Secretary of State Hillary Clinton. The flurry of visits has been intended to repair its relationship with — not discipline — Pakistan.

In fact, Panetta, who is due to replace Robert Gates as defence secretary on July 1, delivered a positive message to Islamabad that the U.S. wants to rebuild a trusting, constructive relationship. Washington may be unhappy with Pakistan’s counterterrorism efforts. But the last thing it wants to do is to spotlight the ISI’s terror role in a third country, India, when the CIA needs the ISI more than ever to cut a peace deal with the Afghan Taliban, whose top leadership is ensconced in Pakistan.

The second lesson is about the Chicago trial itself. The prosecution — the Federal Bureau of Investigation — had a subtle political focus. It was more interested in securing Tahawwur Hussain Rana’s conviction on the Denmark-related charge than on the more-serious 26/11 charge. Furthermore, the prosecution directly and through its star witness David Headley sought to shield the ISI brass from getting linked with 26/11.

A junior ISI functionary, one Major Iqbal who served as Headley’s handler, was indicted and made the fall guy, without any effort by the prosecutors to delve into the issue whether the ISI’s leadership was in the loop on the 26/11 operation. Headley actually contradicted himself in his testimony, claiming the ISI brass was not aware of the operation, yet admitting that Iqbal’s commanding officer and the wing of the ISI they worked for knew about the 26/11 planning.

Although the case helped highlight the impunity with which serving and retired Pakistani military officers have been aiding Lashkar-e-Taiba, the prosecution was reluctant to go beyond the role played by Iqbal. The prosecution also declined to examine the military antecedents of a Lashkar leader, Sajid Mir, who was caught on tape directing the killings in Mumbai by phone during the terrorist strikes.

The prosecution, of course, did not examine the key question — whether 26/11 could have been prevented had the FBI stopped Headley’s terrorist activities in time? Despite having received six warnings over seven years about Headley’s Lashkar connections, the FBI did not arrest him because he was working as a U.S. agent. Headley, a former drug trafficker with a history of previous arrests in the 1980s and 1990s, reportedly continued to work as a paid U.S. informant even beyond 26/11 until evidence surfaced in October 2009 of his involvement in a plot to target a Danish newspaper that had published cartoons of Prophet Muhammad.

It was thus no accident that the prosecution buried material evidence about Headley’s ties with U.S. law-enforcement agencies. This has left the key issue hanging: Was 26/11 preventable?

The verdict may reopen old wounds between India and the U.S. over Headley, including the failure to arrest him in time or share with India sooner the intelligence the U.S. had on him. And even after he was arrested in Chicago in 2009, it took months before America granted Indian investigators limited access to question him. Headley’s plea bargain has saved him the death penalty and extradition to India.

The 26/11 acquittal sets back the plaintiffs’ case against ISI in the New York civil suit —in which the ISI chief has been named as a defendant — and facilitates Islamabad’s bid to strike a deal with Washington in that matter.

The third lesson is about India’s own lack of response to 26/11. India did not take the smallest of small steps after 26/11. Instead it responded by fashioning a new counterterrorism tool — dossier bombing. It also delivered lists of Pakistan-based terrorists.

Can such bureaucratic exercises make Pakistan reassess its strategic calculus and abandon a foreign policy that relies on jihadist adventurism? The answer came recently from the Pakistani foreign secretary, who publicly mocked the dossiers as interesting “literature” but not evidence. In fact, after bin Laden’s killing, he heaped scorn on India’s demand that Islamabad arrest and prosecute all the 26/11 perpetrators, calling the demand “a familiar line,” “outdated,” and a line of thinking “mired in a mindset that is neither realistic nor productive.”

Islamabad indeed has had the last laugh: The Pakistan-based masterminds of 26/11 remain untouched and the terrorist-training camps near the border with India continue to operate, yet New Delhi has returned to square one by resuming political dialogue at all levels. U.S. Assistant Secretary Robert Blake recently thanked India for resuming “full comprehensive dialogue” with Pakistan by dropping both its conditions — “that those who had been responsible for the Mumbai bombings had to be brought to justice and the trials had to be completed; and then that there had to be visible progress by the Pakistanis to stop cross-border infiltration.”

The role of the Pakistani state agencies, including the ISI and navy, in scripting 26/11 is clear. It is time the culpability of Indian decision-makers in letting Pakistan off the hook over 26/11 came under public spotlight.

(c) The Economic Times, 2011.