Chicago, 25 January 2013. It happened the instant I took my seat in the large, well-lit courtroom of District Judge Harry Leinenweber. Until that point I had been too busy with logistics, dealing with Chicago’s icy flurries and simply focused on ensuring that I got a chance to witness the remarkable proceedings that were about to unfold before me.
But the moment I finally sat down in that room and a tall, well-built man in grey track pants and sweatshirt walked in, I was left with little doubt about how momentous the next 90 minutes were going to be. Standing ramrod straight with legs slightly apart and hands behind his back, military-style, was none other than Daood Gilani, aka David Coleman Headley.
In 90 minutes from that point, he would be handed a sentence of 35 years, as recommended by the U.S. Department of Justice. In 90 minutes from that point, the broken families and friends of 166 victims of his terror in Mumbai would have to find some way to cope with that reality. But beyond those 90 minutes, would India be able to come to terms with a sentence most Indians regard as lenient?
One thing is for sure — the intensity of emotion surrounding this case from its early days has been unprecedented.
Ever since the web of deceit Headley wove masterfully around multiple agencies across the world came unravelled, difficult questions were raised about why the U.S. permitted Headley to travel to India even after his family and associates warned authorities about his terror links.
Indian law enforcement also found itself in a frustrating morass of dead ends over fervent appeals to have Headley extradited under existing treaties New Delhi has with Washington. Although India’s National Investigative Agency was permitted seven days’ access to the terror mastermind in early June 2010, the plea bargain that the U.S. Department of Justice struck with Headley precluded any prospect of continuing his interrogation on Indian soil.
Kicking off the proceedings, U.S. Attorneys Daniel Collins and Sarah Streicker argued that they concurred that a crime that had various been called “despicable,” “shocking,” “deplorable,” and so forth required a punishment of appropriate magnitude.
Yet under what is known as Guideline 5K1.1 of the Federal Sentencing Guidelines Manual, the prosecution noted that the court may allow “downward departure” from guidelines that require, for example, life imprisonment, when the defendant has “provided substantial assistance in the investigation or prosecution of another person who has committed an offence.” Thus it was that both the U.S. Attorneys argued for 35 years.
A footnote that appeared to escape the notice of many was the U.S. Department of Justice’s press release on the sentence, according to which “Defendants must serve at least 85 per cent of their sentence.” Lead prosecutor Gary Shapiro also said in a post-sentencing media briefing that Headley, now 52 years of age, may be in his 70s when released, suggesting that he might escape with even less time in jail than 35 years.
But Headley’s defence lawyers took it one step further. They argued that given that Headley was 52 years of age and a 35-year sentence would in effect be a life sentence, a lower sentence would send the correct signal to future defendants in terror cases who were considering whether to cooperate with law enforcement rather than plead not guilty and go to trial.
Judge Leinenweber wasted little time in pushing past the defence’s arguments, noting that Headley continued to pose a danger to society as evidenced by his view, shared with his Lashkar-i-Taiba comrade Sajid Mir, that “all Danes” were responsible for the offending cartoons in Danish magazine Jyllands-Posten and hence were legitimate targets.
Reflecting on the parallel in the Mumbai attacks, Headley had said that “all Indians” were responsible for the death of Pakistanis in Kashmir.
However when the judge suggested that the “downward departure” that was being requested for Headley would not keep society at large safe from any future actions of the man, Headley’s defence lawyers Robert Seeder and John Thomas argued that this was still too harsh, from the point of view of co-defendant Tahawwur Rana receiving 14 years in prison despite not entering into a plea bargain with the U.S. government as Headley did.
Defence arguments also sought mitigation based on the purported remorse that Headley felt after the incident, the interest he had expressed in “American values and the American way of life,” and the fact that he confessed to his role in the Mumbai attacks even before authorities realised that the man they had arrested in 2009 in connection to the Danish plot was also behind the Indian tragedy.
Their arguments were met with what appeared to be scepticism by the judge, who reminded the defence that Headley expressed profound remorse after being arrested for heroin possession in 1988 and then again for a similar crime 11 years later. His request for clemency in a letter petitioning Judge Leinenweber was not being taken seriously, it was obvious.
Then came the most poignant moment of the entire proceeding when Linda Ragsdale, a survivor of the attack on the Oberoi hotel in Mumbai described the cold horror of being shot in the back, even as her friends lay bleeding around her, after being hit with “a barrage of bullets so intense that waves of heat clouded” her vision.
The bullet that hit her missed her heart by a quarter of an inch but travelled all the way through her body and exited at the top of her thigh, she said, describing the sheer heroism of the cooks in the restaurant who braved the bullets to drag her out through a backdoor.
Speaking of the killing of 13-year-old Naomi and her father Alan by her side, Ms. Ragsdale said, “I know what a bullet could do to every part of the human body… I know the sound of life leaving a 13-year-old child. These are things I never needed to know, never needed to experience.” Headley did not flinch throughout the entire reading of multiple victim accounts from a tearful Ms. Ragsdale.
Hearing the victim accounts, however, what came to my mind were the faces of the many hundreds of our own that would never been seen here in Chicago, the voices that would never be heard in this courtroom, the lives forever ripped apart by what can only be described as a calculated brutality.
In the face of the continued suffering of victim families in India, pressure is building on the Government of India to not passively accept the outcome of the Headley case that has been thrust upon it.
Although the U.S. government’s plea bargain with Headley has effectively slammed the door shut on New Delhi’s face,
there may be legal and diplomatic means to gradually re-open that door. Mr. Shapiro said after the sentencing that the plea bargain would be voided if Headley was considered to be not fully cooperating — a potential loophole to exploit to put the extradition option back on the table.
Also questions about undisclosed reasons why the U.S. has sought to so indefatigably protect its adopted citizen from facing a more honest justice in India are likely to be asked again. After all, Headley’s intimate embroilment as an informant to the U.S. Drug Enforcement Agency must have left him with powerful influence within the machinery of the administration.