Smoke and fire billows out of the Taj Hotel in Mumbai November 27, 2008
Smoke and fire billows out of the Taj Hotel in Mumbai November 27, 2008 Reuters

The Indian government said on Friday that it would like to extradite American citizen David Coleman Headley to face trial for his involvement in the 2008 Mumbai terrorist attacks after he was sentenced to 35 years in prison by a Chicago court, a sentence New Delhi says should have been “harsher.”

"The U.S. legal system had no provision to extradite him, but we will still try and get him tried in India," External Affairs Minister Salman Khurshid told reporters in Delhi in a televised address, adding that he would have faced a “harsher” sentence had he been tried in the country that was attacked.

Union Home Secretary RK Singh, a member of the Cabinet, was more direct, saying that India wants Headley executed, and he vowed to push the United States on the matter. In November, Mohammad Ajmal Amir Kasab, the surviving killer in the Nov. 26, 2008, massacre of 166 people in the heart of India’s commercial capital, was hanged in the city of Pune and buried on the prison grounds.

Headley, whose father is Pakistani, was charged with conspiracy for doing scouting missions for Lashkar-e-Taiba, the Pakistan-based terrorist organization that planned the murderous assault as part of its fight against India’s claim to parts of Kashmir.

The U.S. Embassy issued a statement on Friday defending the court’s decision on Headley’s conspiracy charge, saying he received a lighter sentence because he cooperated with investigators and provided valuable intelligence regarding the terrorist organization.

Headley is 52, but he could live long enough to be freed, which has raised hackles in India because they view him as a key player in the attack even if he wasn’t actively involved in randomly gunning down members of the public at various Mumbai locations, including a train station, a Jewish community center, the Taj Mahal Palace Hotel and a children’s hospital.

Speaking on behalf of the victims, with Headley present inside the court room, an emotional Linda Ragsdale, who was shot in the back by a gunman while dining at the Oberoi Trident hotel in Mumbai, told a federal court in Chicago that Headley should be made to bear the consequences of what he did.

"Headley has lost his right to live as a free man," Ragsdale was quoted as saying by IANS.

“He must bear the consequences for the rest of his life. It would be a moral outrage to all the victims and even those still in India if he gets only 35 years," she said.

Ragsdale also read from a statement written by another survivor who said it would be an "appalling dishonor" if Headley was sentenced to the 30 to 35 years in prison recommended by federal prosecutors.

Headley will spend only one year in prison for nearly every five people who died in the Mumbai attacks.

India’s Minister for External Affairs, Salman Khurshid, said that India would have sought a longer jail term for Headley but added that he was satisfied with the prison term handed by the U.S. court.

Eminent Indian public prosecutor Ujjwal Nikam, who was instrumental in sending Ajmal Kasab, the lone surviving gunman of the Mumbai attack, to the gallows, has termed David Headley's sentence as meager in comparison to the brutality and heinousness of the crime.

"This sentence to David Headley is very meager, inadequate, insufficient, taking into consideration the role played by David Headley in the criminal conspiracy of November 26. Had he been in India, definitely he would have been awarded the death penalty,” Nikam was quoted as saying by ANI.

Even U.S. District Judge Harry Leinenweber observed that 35 years was not enough punishment for Headley.

"Mr. Headley is a terrorist … Recommending 35 years is not a right sentence," Leinenweber said while pronouncing the sentence.

"The sentence I impose, I'm hopeful it will keep Mr. Headley under lock and key for the rest of his natural life," Leinenweber said. The judge said it would have been much easier to impose the death penalty: "That's what you deserve.”

Headley had entered into a plea bargain with U.S. investigators, under which he evaded a death sentence.

But is the idea of proportional justice feasible? And even if Headley had been sentenced to life or hanged, could those be considered proportional punishments for his crimes? After all, a mass killer may end up receiving the same punishment as someone guilty of a single murder.

The inherent flaw in a concept of justice based on proportionality and retribution is that it has no limits and creates a slippery slope leading to state-sponsored barbarism.

When it comes to punishing terrorists linked to crimes outside their own nations, several factors including differences between national and international legal systems could create confusion that may lead to dissatisfaction among the victims.

Anthony F. Lang Jr, author of “Punishment, Justice, and International Relations: Ethics and Order after the Cold War (2008)” writes that a wide range of sentencing decisions at the international level against people found guilty of terrorism and related crimes “suggests an inchoate amalgamation of objectives rather than a clearly defined set of progressive values.”

“These objectives waver among deterrence, retribution, and rehabilitation,” he writes.

He observes that when national institutions respond to international crimes, confusion and dissatisfaction is almost unavoidable.

“There is no legal basis for a truly international response to the crime of terrorism, which is today largely addressed through national court structures; and, consequently, responses to terrorism remain mingled with national agendas and interests,” he writes.

The general dissatisfaction expressed by the Indian establishment over Headley’s sentence may be one of the reasons why a U.S. federal Attorney indicated that there was still some possibility of extraditing the Mumbai conspirator to India, by going into a rare hypothetical scenario which is not usually expected of a government official.

Acting Attorney Gary S. Shapiro told reporters that in order to extradite Headley to India, Headley would have to violate his guilty plea by not co-operating with the U.S. government or any foreign government in future investigations and by not being truthful.

“Under the plea agreement, he cannot be extradited to India for the crimes he has been convicted of here. If the plea agreement was voided, then our agreement as to extradition is voided as well," he said.