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In a huge setback to Tahawwur Hussain Rana, a United States court has ruled that the Pakistani-origin Canadian businessman could be extradited to India where is wanted for his involvement in the 2008 Mumbai terror attack carried out by Pakistan-based Lashkar-e-Taiba terrorists.
"The (India US Extradition) Treaty permits Rana's extradition," the US Court of Appeals for the Ninth Circuit said in its ruling on Thursday.
Ruling on an appeal filed by 63-year-old Rana, a panel of judges of the US Court of Appeals for the Ninth Circuit affirmed the District Court in the Central District of California's denial of his habeas corpus petition challenging a magistrate judge's certification of his as extraditable to India for his alleged participation in terrorist attacks in Mumbai.
Rana, currently lodged in a jail in Los Angeles, faces charges for his role in the 26/11 Mumbai attack and is known to be associated with Pakistani-American Lashkar-e-Taiba (LeT) terrorist David Coleman Headley, one of the main conspirators of the terror incident that hit India's financial hub in 2008.
Rana has the option of appealing against the ruling. He still has not run out of all the legal options to prevent his extradition to India.
Under the limited scope of habeas review of an extradition order, the panel held that Rana's alleged offence fell within the terms of the extradition treaty between the United States and India, which included a Non Bis in Idem (double jeopardy) exception to extraditability 'when the person sought has been convicted or acquitted in the Requested State for the offence for which extradition is requested'.
Relying on the plain text of the treaty, the US State Department's technical analysis, and persuasive case law of other circuits, the panel held that the word 'offence' refers to a charged crime, rather than underlying acts, and requires an analysis of the elements of each crime.
The panel of three judges concluded that a co-conspirator's plea agreement did not compel a different result.
The panel held that the Non Bis in Idem exception did not apply because the Indian charges contained distinct elements from the crimes for which Rana was acquitted in the United States.
In its ruling, the panel also held that India provided sufficient competent evidence to support the magistrate judge's finding of probable cause that Rana committed the charged crimes.
The three panel of judges were Milan D Smith, Bridget S Bade, and Sidney A Fitzwater.
Rana, a Pakistani national, was tried in a US district court on charges related to his support for a terrorist organisation that carried out large-scale terrorist attacks in Mumbai.
A jury convicted Rana of providing material support to a foreign terrorist organisation and conspiring to provide material support to a foiled plot to carry out terrorist attacks in Denmark.
However, the jury acquitted Rana of conspiring to provide material support to terrorism-related to the attacks in India.
After Rana served seven years in prison for those convictions and upon his compassionate release, India issued a request for his extradition to try him for his alleged participation in the Mumbai attacks.
Before the magistrate judge who initially decided Rana's extraditability (the extradition court), Rana argued that the US extradition treaty with India protected him from extradition because of its Non Bis in Idem (double jeopardy) provision.
He also argued that India did not provide sufficient evidence to demonstrate probable cause that he committed the charged crimes.
The extradition court rejected Rana's arguments and certified that he was extraditable. After Rana raised the same arguments in a habeas petition in district court (the habeas court), the habeas court affirmed the extradition court's findings of facts and conclusions of law.
In his appeal, Rana argued that he cannot be extradited based on conduct for which he was acquitted in the United States because the word 'offence' refers to underlying acts.
The US government argued that 'offence' refers to a charged crime and requires an analysis of the elements of each charged crime.
Thus, according to the government, the Treaty permits Rana's extradition because the Indian charges contain distinct elements from the crimes for which he was acquitted in the United States.
Judge Smith said that the Treaty's plain terms, the post-ratification understanding of the signatories, and persuasive precedent all support the government's interpretation.
Rana argued, however, that, based on the government's interpretation of the Treaty in Headley's plea agreement, we should judicially estop the government from advocating for its current interpretation of the Treaty.
"We decline to do so," Judge Smith said.
"Because the parties do not dispute that the crimes charged in India have elements independent from those under which Rana was prosecuted in the United States, the Treaty permits Rana's extradition," Judge Smith said.
A total of 166 people, including six Americans, were killed in the 2008 Mumbai terror attacks in which 10 Pakistani terrorists laid a more than 60-hour siege, attacking and killing people at iconic and vital locations in Mumbai.