India is rightly “disappointed” over a Chicago district court’s acquittal on June 9, 2011 of Tahawuur Hussain Rana in the 26/11 Mumbai carnage. However, New Delhi will do well not to throw in the towel and increase pressure on Pakistan as well as the United States to ensure that 26/11 perpetrators are brought to book in double quick time, and more importantly, Pakistan dares not attempt a repeat of 26/11.

The Chicago jury has ignored two major charges against Rana for which enough evidence had been provided by the prosecutors and which showed the extent to which he provided material and logistic support to Headley for planning the Mumbai attacks:  (i) Rana had purchased air tickets for Headley for his trip to India; and (ii) Rana allowed Headley to pose as his employee for his immigration consultancy firm during his travels to India and Denmark. It is strange that the jury has ignored these two points in giving “not guilty” verdict as far as Rana’s involvement in the Mumbai attacks is concerned. It is equally strange that the jury has at the same time found Rana guilty of providing material support to the Lashkar-e-Toiba as well as for the Denmark terror plot.

This shows the jury’s complete lack of understanding of the jihadist brand of terrorism by Pakistan-based outfits because till date the LeT remains an India-specific outfit and all its strikes have been against Indian interests in India and Afghanistan. The Mumbai carnage was planned, executed and monitored by the LeT in close cooperation with elements of Pakistan Army and the Inter Services Intelligence, besides like-minded terror outfits. It is hard to swallow the Chicago jury’s verdict that Rana had nothing to do with 26/11, though he was a material support provider for the LeT which executed its biggest terror attack on foreign soil since its inception.

It is a fit case for the American prosecutors to appeal against the ‘not guilty’ verdict in a higher court and India needs to use its diplomatic, strategic and economic leverages with the US to pressure Obama administration that it files a strong appeal in soonest possible time. Barely a few days ago, India had on June 6 handed to the US a $ 4.1 billion deal for purchase of ten military transport planes which will provide jobs to 23,000 Americans. India needs to tell Washington that trade cannot be delinked from issues like the Rana-Headley episode which threaten Indian national security.

So, what can India do now? There are at least two options that the Ministry of External Affairs can explore, and straws in the wind suggest that the MEA is indeed considering these options.
India is seriously mulling over taking the Rana-Headley issue and their neck-deep involvement with Pakistan’s Inter Services Intelligence (ISI) to the Terrorism Monitoring Committee of the UN Security Council and seek action against the ISI for willfully violating UNSC Resolution No 1373. Besides, India is also considering to tell the US to treat the Rana-Headley case and the ISI’s involvement in 26/11 at par with the involvement of the Libyan intelligence in the Lockerbie case of 1988 wherein a Pan Am aircraft had been bombed in air.

Resolution 1373, passed after the 9/11 terrorist strikes in the US, makes it clear that “every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts.” The Indian diplomatic establishment is enthused by loads of testimonies in the case against Rana that have clearly shown a serious violation of this Resolution by the ISI and therefore India will not be wrong in holding the ISI accountable for its sins of omission and commission. Moreover, such a move by India will also strengthen India’s case for the US State Department’s declaration of Pakistan as a state-sponsor of international terrorism.

However, there are two difficulties towards this twin objective. First, China will surely veto any move by the UNSC to take action against the ISI. Secondly, even the State Department is unlikely to play ball with India in declaring Pakistan as a state- sponsor of terrorism on the basis of the evidence adduced in the trial just as the State Department avoided doing it as it did after the Mumbai blasts of March 1993.

India has already indicated that it has enough evidence against Rana and his accomplice David Coleman Headley to file a charge sheet against the duo as and when the National Investigating Agency (NIA) is ready to do so. At the same time, UK Bansal, Special Secretary (Internal Security), Ministry of Home Affairs, has gone on record saying that Rana’s acquittal is not a setback for India. "I don't see it as a setback because our case is still under investigation. In our handling of terrorism in India we don't rely overly on prosecutions in other countries," Bansal said.

The Ministry of Home Affairs issued a press note on June 10, 2011 and cited five evidences against Rana that American prosecutors had provided to the US court jury which acquitted Rana of conspiracy to provide material support to the Mumbai terror attacks. These evidences are as follows: (i) Headley had advised Rana of his assignment to scout potential targets in India; (ii) Headley obtained Rana’s consent to open an office of First World Immigration Services as a cover for his activities; (iii) Rana advised Headley on how to obtain a visa for travel to India; (iv) Headley and Rana had reviewed how Headley had done surveillance of the targets that were attacked in Mumbai; (v) Rana told Headley that the terrorists involved in Mumbai attacks should receive Pakistan’s highest military honours posthumously.

“We are, therefore, disappointed that Rana was acquitted on the count of conspiracy to provide material support to the Mumbai terrorist attacks. However, it must be remembered that Rana was tried in a US court in accordance with US law. Criminal trials in the US are jury trials and there are special rules governing such jury trials,” the MHA said. It pointed out that while Rana’s lawyers have stated that they will file an appeal against the verdict, it was not yet clear whether the US authorities would also file an appeal against the acquittal on one count of conspiracy.

The NIA, which is investigating the case against Headley, Rana and others, has for now decided to wait for the proceedings to conclude in the US court before filing a charge sheet in India against the accused. NIA has also sought certain documents and evidence that were produced in the US court and expects to receive them. The NIA has loads of work on its hands. It has to examine the verdict in the US court and after reviewing the documents and evidence that it expects to receive, NIA will file a charge sheet against Headley, Rana and others in an Indian court. This process is likely to take months.