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Cautious steps on Headley

Washington, April 11: The Obama administration has told India in the run-up to today’s meeting between Prime Minister Manmohan Singh and US President Barack Obama that the road they are opening up for India’s access to terrorist enabler David Headley is paved with good intentions.

But top administration officials have also told India that tolls have to be collected on this symbolic road in order to ensure its upkeep and optimum use.

In other words, the Americans do not want to provide India any access to Headley, who scouted targets in Mumbai for the Lashkar-e-Toiba’s November 2008 attacks on the city, until they are sure that the effort is beneficial for New Delhi and does not violate any of Headley’s constitutional rights as a US citizen at the same time.

High-level sources in the Obama administration told The Telegraph amidst preparations for today’s Singh-Obama mini-summit that Patrick Fitzgerald, the high-profile US attorney for Illinois’ northern district, who is prosecuting Headley — and his co-conspirator Tahawwur Rana — has told the department of justice here that even if something minor goes wrong in the arrangements for India’s access to Headley under US law, the entire case against the accused could be thrown out as mistrial.

US attorney-general Eric Holder, a member of Obama’s cabinet who is now personally seized of the issue of Indian access to Headley, is convinced of the delicate nature of the constitutional requirements in the case which have to be met to ensure a conviction in Illinois, sources in the department of justice told this correspondent.

In addition, Holder is believed to have told inter-agency meetings here that access to Headley can be arranged for India only once, although this does not necessarily mean one sitting.

Therefore, he wants to ensure that the meeting between Indian investigators and the accused produces the desired results for New Delhi even as it does not violate the terms of a plea agreement by Headley in the court of Illinois district judge Harry Leinenweber.

“What is the use of arranging quick access to Headley merely to relieve the heat on your home minister (P.) Chidambaram?” asked a source at the department of justice who refused to be quoted so that he can speak frankly about the case.

“What if Headley takes the Fifth (Amendment) because his plea agreement specifically provides for his protection against any self-incrimination? Then the Indians will go back to New Delhi empty-handed. Let me tell you that your government will be under worse fire if that happens. And we will look like a bunch of incompetent fools who did not know the law,” the source explained.

The Fifth Amendment to the US constitution, sacrosanct to every American citizen, guarantees the right to everyone, including non-citizens, during any proceeding of a judicial or law enforcement nature on US soil that “no person shall be held to answer for a capital, or otherwise infamous crime... nor shall be compelled in any criminal case to be a witness against himself”.

An additional complication is the extremely high profile of the prosecutor in this case: Fitzgerald has brought cases against Illinois governor Rod Blagojevich that led to the governor’s arrest and departure from office into political disgrace.

The only conviction of a top Bush administration official during the eight years when George W. Bush rode roughshod over the American constitution, political propriety and civil liberties was also achieved by Fitzgerald when Vice-President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, was sentenced to 30 months for obstruction of justice. It was the first such conviction of a top White House official in a quarter century.

Wringing his hands in despair, a department of justice official pleaded for some understanding by India that in addition to Fitzgerald and judge Leinenweber, a consensus had to be reached on Indian access to Headley among his lawyer, justice and state department officials, the Federal Bureau of Investigation and a host of other US government agencies.

But the official insisted that with patience and foolproof sifting of US laws in the case, India will, indeed, get the access it is seeking.

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