Featured, Features, frontpage, Online — September 14, 2017 at 12:50 pm

India’s Distressed Justice Sector: A Matter of U.S. National Security Concern

Dan E. Stigall*

I. Introduction

In his recent speech on the U.S. strategy in Afghanistan, U.S. President Donald Trump stated that India is “the world’s largest democracy and a key security and economic partner of the United States.”[1] This statement echoes statements of previous administrations that have recognized India’s increasing importance as a partner and strategic ally. For instance, in describing the unique and multi-layered relationship between India and the United States, former U.S. President Barack Obama characterized it as “one of the defining partnerships of this century.”[2] Indeed, the deepening political, economic, and social relationships between the two countries have intertwined their respective fates in important respects. Such interconnectedness obviously has many positive effects. It also, however, creates new vulnerabilities and makes the domestic problems of one country a potential issue of national security concern to the other. One area of acute concern to both countries in this synergistic international relationship is the increasing problem of terrorist violence in India. Shared values, aligned interests, and increasingly overlapping populations mean that terrorist violence in India can reverberate inside the United States, imperiling U.S. persons and national interests.

India possesses many skilled jurists and a cadre of stalwart counterterrorism professionals. Nonetheless, India has faced significant challenges in addressing terrorism, especially through its courts. This Article highlights the degree to which institutional frailty in the Indian justice sector poses a national security risk to the United States, and illuminates policy choices that can serve to mitigate this potential threat to U.S. persons and national interests. In particular, this Article demonstrates that a revitalized Indian justice sector would help create a bulwark against regional instability and the pernicious threat posed by global jihadist groups currently seeking a foothold in South Asia. Such a goal is both achievable and necessary; but, to succeed in this endeavor, policy-makers and legislators must focus efforts on the modernization and support of two vitally necessary Indian institutions: India’s beleaguered judiciary and its offices responsible for international cooperation in criminal matters. Without improvements in the capacity of these institutions, India’s counterterrorism efforts will ultimately founder—and vital U.S. interests will be at risk.

II. Two Countries Intertwined

India and the United States are critical allies that have long had a strategic partnership “rooted in shared values of freedom, democracy, universal human rights, tolerance and pluralism, equal opportunities for all citizens, and rule of law.”[3] Moreover, India is a geostrategically important ally for the United States due to its significant influence and position in South Asia:

India is an indispensable partner for the United States. Geographically, it sits between the two most immediate problematic regions for U.S. national interests. The arc of instability that begins in North Africa, goes through the Middle East, and proceeds to Pakistan and Afghanistan ends at India’s western border. To its east, India shares a contested land border with the other rising Asian power of the twenty-first century, China. India—despite continuing challenges with internal violence—is a force for stability, prosperity, democracy, and the rule of law in a very dangerous neighborhood.[4]

At the social level, in recent years, India and the United States have witnessed an impressive degree of integration with nearly 4 million Indian-born American citizens living in the United States, forming a prosperous and influential minority group that generally maintains a close affinity to its homeland and culture.[5] Likewise, over 700,000 U.S. citizens currently live overseas in India.[6] With such overlapping and intrinsically linked population groups, it is little wonder that Indian culture has become an influential force in the United States and vice versa.[7] The natural degree of cultural fusion that comes from such closeness has created new political realities that will continue to influence policies in both countries for the foreseeable future.[8] As commentators have noted, “[t]here is every reason to believe that India will be one of America’s most crucial partners in the twenty-first century. No two other major countries in the world are more natural partners in democracy and freedom.”[9]

With partnership comes shared goals, shared triumphs, and shared vulnerabilities. Social integration and political alignment can easily lead to a degree of conflation in the minds of groups with grievances against one country or the other, making one country a tempting proxy target or target of convenience. And India is home to an impressive array of terrorist groups that wish to do it harm.

III. Into the Maelstrom: The Vortex of Terrorist Groups in India

Despite the closeness of the two countries, the United States and India each experience markedly dissimilar levels of terrorist violence. India has struggled with terrorist violence since its earliest days of independence, confronting both internal and external terrorist threats.[10] In fact, India consistently ranks alongside conflict zones like Iraq and Afghanistan in terms of the number of yearly terrorist attacks.[11] Such attacks are carried out by a diverse array of groups, including (1) Islamic extremists; and (2) terrorist movements in territories bordering Pakistan, northeastern India, and in India’s interior states.[12] Recently, the most active areas for terrorist activity in India have been in the states Jammu and Kashmir, where Pakistani-sponsored groups routinely launch attacks on Indian security forces and Hindu civilians.[13] Beyond those areas, with the rise of Islamic extremism and jihadist groups, new external threats lurk beyond India’s borders which seek to conduct attacks, radicalize vulnerable groups, and place even more stress on India’s already burdened judicial and security institutions.[14]

Terrorist groups in India span a continuum from purely regional and localized groups to those that are global in scope. India’s separatist groups exist at the localized extreme of that continuum. Numbering among India’s sizeable population of 1.2 billion people are myriad ethnic and religious minorities, some of which “face economic subordination and often seek territorial concessions.”[15] Such groups have frequently engaged in terrorist attacks within India’s territory. Many examples of this can be found in the northeastern region of India, which is comprised of eight states: Meghalaya, Assam, Nagaland, Manipur, Arunachal Pradesh, Mizoram, Tripura, and Sikkim.[16] In this region one finds the United Liberation Front of Asom (ULFA), which continues to wage a national liberation struggle with the aim of “establishing an independent socialist sovereign Assam”;[17] the National Liberation Front of Tripura (NLFT) which seeks to secede from India to form “an independent Christian fundamentalist state”;[18] and the Naxalites, a militant left-wing movement responsible for a crushing wave of violence in India that has claimed thousands of lives.[19]

The terrorist group called Babbar Khalsa International (BKI) is a Pakistan-supported Sikh secessionist group that seeks to obtain, through violent means, the creation of Khalistan, an independent state in the Punjab region of northern India for the Sikh minority in India.[20] BKI has participated in hundreds of attacks against Indian security forces and civilians, including an attack on Indian police at Daheru village in Ludhiana district in November of 1981, which resulted in the deaths of Indian police officials.[21] BKI is also considered responsible for the bombing of Air India Flight 182 in June 1985, an attack which killed 329 people traveling from Canada to India.[22]

While the activities of a group like BKI may seem far removed from the United States, it is worth recalling that, in 2016, an individual named Balwinder Singh was convicted by a federal court in the United States for conspiring to support BKI terrorist attacks in India.[23] “Singh communicated with co-conspirators by telephone to discuss these plans and agreed to provide material support by facilitating a co-conspirator’s travel to and within South Asia and providing funding and materials necessary to carry out an overseas attack.”[24] Accordingly, a BKI terrorist was able to use the United States as a haven from which to plot and facilitate an attack inside Indian territory. This demonstrates how there can be a U.S. nexus even to terrorist activity that, at the surface, may seem entirely internal to India—such as plotting by a Sikh secessionist group.

Further along the continuum from local to global are groups such as Lashkar-e-Taiba (LeT), a Pakistan-sponsored terrorist group that has conducted numerous attacks in India, including “many massacres targeting minorities in Kashmir, killing 16 Hindus in Barshalla, Doda,” and the March 20, 2000, Chattisinghpora attack, in which “LeT terrorists killed 35 Sikhs in Anantnag on the eve of President Bill Clinton’s official state visit to India.”[25] Most notably, LeT is responsible for the brutal Mumbai attacks of 2008, which resulted in the death of approximately 164 victims, including six Americans.[26] Again, while LeT’s activities may seem removed from the United States, it must be recalled that David Coleman Headley, a U.S. citizen of partial Pakistani descent, pleaded guilty in 2010 to numerous federal terrorism charges for his role in planning the Mumbai attacks.[27] Headley was able to use his American identity as a means to cloak his assistance to LeT, making numerous trips to India to identify potential targets and using a U.S.-based company as a front to carry out intelligence activity in support of the Mumbai attacks.[28] Thus, there was even a U.S. nexus to the plotting of one of the most significant and devastating terrorist attacks in India—and one that claimed the lives of several U.S. citizens.

A similar group is Harkat-ul-Jihad-al-Islami (HuJI), “a Pakistan-based Deobandi militant group with the current stated goal of secession of Jammu and Kashmir . . . from India and the region’s eventual incorporation into Pakistan.”[29] HuJI is responsible for numerous terrorist attacks in India and elsewhere, including a suicide bombing of the U.S. Consulate in Karachi, Pakistan, on March 2, 2006, which killed four people—including U.S. diplomat David Foy—and wounded 48 others.[30]

Jaish-e-Mohammed (JeM), in turn, is “an extremist Islamist group based in Pakistan that aims to undermine Indian control of the Indian Administered Kashmir and unite the province with Pakistan under their own interpretation of Shariah law.”[31] JeM has continuously demonstrated its lethality and threat to Indian interests. For instance, on January 2, 2016, JeM attacked Pathankot Air Force Station in Punjab, killing eight security personnel and one civilian.[32]

Other groups with a more regionalized focus include the Student Islamic Movement of India (SIMI), an al-Qaeda affiliate,[33] which “reportedly reinforces LeT efforts by helping it expand its activities within India,”[34] and Indian Mujahadeen (IM), which carries out terrorist actions against non-Muslims to further its ultimate objective of creating an Islamic Caliphate across South Asia.[35] The U.S. State Department notes that IM “maintains close ties to other U.S.- designated terrorist entities, including Pakistan-based Lashkar e-Tayyiba (LeT), Jaish-e-Mohammed (JEM) and Harakat ul-Jihad-i-Islami (HUJI).”[36]

Toward the global end of the continuum are groups more closely linked to the global jihadist movement, such as the Islamist terrorist group al-Qaeda in the Indian Subcontinent (AQIS). In September 2014, al-Qaeda launched an effort to create a regional al-Qaeda affiliate “to operate across South Asia . . . with its centre of gravity and leadership based in Pakistan.”[37] Commentators note, however, that, since its formation, AQIS “has largely failed to live up to its ambitions, unable to carry out a terrorist spectacular and managing only a handful of relatively minor attacks across South Asia.”[38]

Of more immediate concern is the rise of the Islamic State of Iraq and al-Sham (ISIS) in India and elsewhere in Southeast Asia. Since ISIS included India as part of its planned caliphate in June 2014, it has gained momentum in the region, recruiting at least 75 Indian nationals to join its ranks, building attack networks, planning a number of attacks, and successfully executing one.[39] While the number of Indians who have joined ISIS remains relatively small, experience has demonstrated that it does not take a large group to wreak severe damage against unprotected and unsuspecting civilians. Moreover, indications are that ISIS is gaining strength in India and in surrounding countries[40]:

India faces an increasing domestic threat from virtual recruitment and self-radicalization, which has resulted in some Indians officially joining ISIS and fighting in Iraq and Syria. Also of concern is the external threat from Bangladesh’s rising extremist population and radicalized individuals from Bangladesh that might plan and execute attacks in India if ISIS were to grow larger in the region.[41]

As an example of ISIS’s operational activity in India, in June 2016, India’s National Investigation Agency raided a suspected ISIS cell in Hyderabad, uncovering an ISIS plot to conduct attacks in that area.[42] In March 2017, ISIS operatives (who were reportedly radicalized online) detonated a pipe bomb on a passenger train.[43] Although these plots focused on Indian targets, experience has shown that wherever ISIS takes root, it soon becomes a threat to U.S. interests at home and abroad.[44]

Wanted Poster (photo taken by the author).

IV. The Choice: Military Actions or Rule of Law Responses?

India has addressed some of these terrorist challenges through military and quasi-military means. For instance, India’s Armed Forces (Special Powers) Act of 1958 (AFSPA) still applies in northeastern India and provides Indian armed forces broad law enforcement authority, including the ability to use lethal force in law enforcement matters.[45] Commentators, however, note that this has served to militarize the situation, inflame existing tensions, and alarm human rights groups.[46] In fact, the Indian Supreme Court recently directed India’s Central Bureau of Investigation to investigate potential illegal uses of force after that court was asked to consider allegations of “1,528 extra-judicial killings in Manipur from 2000 to 2012 by security forces and police.”[47] In addition, “[t]he existence of the AFSPA has undermined the role of state police forces in the management of internal security and has also led to persistent civil society protest against it.”[48] Moreover, military responses are implausible in urban areas—especially in “megacities” like Mumbai and Delhi. The use of the military as the major instrument against India’s myriad internal terrorism-related threats is, thus, an imperfect response.

A preferred mechanism for addressing terrorism in India is through India’s domestic law enforcement and judicial institutions. These interrelated institutions, however, will need support in order to counter the rising tide of terrorist violence, especially the Indian judiciary and India’s governmental architecture for international cooperation. If Indian courts cannot effectively oversee the judicial process leading to a prosecution, then no amount of investigation will yield a desired result. If courts take over a decade to complete a case, then needed evidence will disappear, witnesses will die, memories will fade, and the chances of a successful prosecution will diminish. In addition, if Indian investigators cannot obtain needed evidence and fugitives from other countries, then there is little likelihood that prosecutors can successfully address transnational crimes involving conduct that transcends national borders. As a result, justice sector responses will be viewed as ineffective and decision-makers will naturally turn back to militarized approaches that may not provide a long-term solution, but will at least yield a body count and the appearance of action.

A. India’s Distressed Justice Sector

India’s justice sector, however, is currently challenged on a number of levels, resulting in dysfunction that impedes timely prosecutions of terrorists and, relatedly, the ability of Indian authorities to provide or obtain needed evidence and/or fugitives from other countries. As one commentator has noted, “[t]he saddening part in this war against terrorism has been the absence of a proper legal apparatus in the country, which could provide a mechanism for the conviction and legal punishment of the terrorists arrested in counter-terrorism operations.”[49]

The principal problem for India’s judiciary today is that it is buckling under the weight of an unsustainable caseload.[50] Reports indicate that India has only 12 judges for every million people (compared with 50 per million in the United States).[51] This shortage—along with an antiquated court administration process—has resulted in near paralysis of the justice sector. A 2014 Indian government report noted that the Indian judicial system was “unable to deliver timely justice because of [a] huge backlog of cases for which the current judge strength is completely inadequate.”[52] That same report noted that, “in addition to the already backlogged cases, the system is not being able to keep pace with the new cases being instituted, and is not being able to dispose of a comparable number of cases.”[53] As a result, the report concluded that the Indian judiciary was no longer able to guarantee access to timely justice and that the situation was leading to an erosion of the rule of law. Most startlingly, the report posited that “[t]he already severe problem of backlogs is . . . getting exacerbated by the day.”[54] Recent reports demonstrate that the problem is indeed mounting.[55]

Aside from judicial paralysis, the unsustainable backlog has tertiary effects, such as prison conditions that are also unsustainable. Reports indicate that 67.2% of the total prison population is comprised of accused criminals awaiting trial, and that the total prison population is already 31% above its capacity.[56] Similarly, the extremes to which hearings are delayed also contribute to the unusually low conviction rates in Indian courts in terrorism and other matters. In that regard, the conviction rate for terrorism in certain areas is as low as 20%[57]—meaning that judicial dysfunction results in impunity for many terrorists in India.

Various efforts have been made to address the situation, including the creation of specialized courts to address matters of acute public concern, such as terrorism and sexual assault. For instance, under the Terrorism and Disruptive Activities (Prevention) Act (TADA), “designated courts were to be established with special powers to deal exclusively with cases relating to terrorism.”[58] This included procedures to help expedite criminal prosecutions. After TADA’s repeal in 1995, similar courts and procedures were maintained as part of the 2002 Prevention of Terrorist Activities Act (POTA).[59] Legislation passed in reaction to the 2008 Mumbai Attacks—namely the Unlawful Activities (Prevention) Act and the National Investigation Agency Act—also permits special tribunals for terrorism.[60]

The Indian Supreme Court has upheld the use of special courts in terrorism matters due to the need to expedite terrorism cases and to ensure a “speedy trial and execution of punishment, especially if [a] death penalty is awarded.”[61] These courts have, however, raised human rights concerns,[62] and their records are, at best, mixed:[63]

While [Mumbai-attack participant Ajmal Kasab’s] trial is hailed as one of the quickest trial-to-execution cases in the history of India taking a little less than four years, it is also criticised for violating certain due process measures followed in ordinary criminal cases. In contrast, [JeM terrorist Mohammad Afzal Guru’s] trial, also under a Special Court under POTA, took 12 years, questioning the efficiency of Special Courts in ensuring speedy justice.[64]

Beyond the terrorist context, other fast-track courts were created to expedite justice and overcome the delay and dysfunction of the ordinary courts. At their zenith, there were roughly 1,734 fast-track courts in India[65] with an impressive record of disposing of roughly 3 million cases.[66] After March 2011, however, the central government could no longer fund the fast-track courts and left their fate and funding in the hands of individual states, many of which discontinued them due to their inability to maintain the additional costs.[67] Of the fast-track courts that still exist, many must now rely on the same existing, distressed judicial infrastructure they were created to circumvent.[68]

A lesson gleaned from India’s experiments with fast-track courts is that, as a general matter, the problems experienced with the Indian judiciary cannot be surmounted through the creation of special fora or through procedural shortcuts. Long-term solutions can only be obtained by focusing on the foundational judicial institutions that comprise the Indian justice sector, augmenting their capacity, and providing them the tools and resources that they need to hear cases and dispense justice. This means focused efforts on improving judicial administration, providing resources so that courts can operate properly, and instituting robust training programs for both judges and prosecutors.

B. International Cooperation

International cooperation in criminal matters is another area that has posed challenges for Indian authorities. It is worth noting that the two main areas of practice in transnational criminal law are mutual legal assistance and extradition. Mutual legal assistance (or MLA) is the “process by which states seek and provide assistance in gathering evidence for use in criminal cases or in the restraint and confiscation of proceeds of crime.”[69] Extradition, in turn, is the mechanism by which one sovereign requests and obtains custody of a fugitive located within the jurisdiction and control of another sovereign.[70] Through the extradition process, a sovereign—the requesting state—typically makes a formal request to another sovereign—the requested state.[71]

Importantly, both of these processes are intensely legal and require specialized institutions for their effective execution. These institutions, generally referred to as “central authorities,” are the national entities responsible for mutual legal assistance and extradition. Central authorities effectively facilitate and catalyze international cooperation under the modern international legal framework.[72] As one senior United Nations officer has noted, “[e]stablishing effective central authorities that receive and process requests for [mutual legal assistance] and extradition is essential in bringing terrorists to justice.”[73]

On that score, while much recent writing on international cooperation and mutual legal assistance has focused on procedural aspects of what is sometimes misleadingly referred to as “the MLAT problem,” commentators too frequently lurch to address perceived procedural inadequacies in formal cooperation and neglect the real root of the problem: frailty in the institutions needed for effective international cooperation. Advocating for procedural modifications while ignoring institutional frailty is akin to installing new wheels on a car that has no engine—the result is wasted effort, wasted resources, and the persistence of the problem.

Like its judiciary, India’s institutions charged with international cooperation in criminal matters are inadequately resourced and, thus, have struggled to fulfill their role.[74] Compounding the problems associated with the lack of effective central authorities, international cooperation in India is hampered by its reliance on India’s impaired judiciary. This creates a dual dysfunction that complicates extradition and mutual legal assistance with India from every angle. Indian investigators and prosecutors struggle to obtain needed evidence and fugitives from other countries, while other countries struggle to obtain needed evidence and fugitives from India.

As an example of this double dysfunction, Indian law generally requires investigators seeking mutual legal assistance from abroad to first apply to a criminal court in India, which then issues a “letter of request” to the appropriate foreign authority for the evidence sought.[75] This means that investigators needing cross-border evidence such as travel records, bank records, email activity, and other electronically stored evidence, are generally reliant on judicial action in order for a mutual legal assistance request to be sent. If judicial action is stymied by a dysfunctional judiciary, then the Indian investigator will be unable to obtain evidence quickly. Likewise, requests from countries seeking evidence from India will also be delayed by the need for judicial action before such requests can be executed. For this reason, a Financial Action Task Force (FATF) report noted that some countries “have encountered problems with international co-operation via formal legal channels with India. The problems reported relate to the delay in the Indian authorities’ reaction when providing MLA, if MLA is provided at all.”[76]

Similarly, extradition in India (as in most other countries) is an intricate and complex legal procedure, involving numerous judicial hearings. India’s judiciary, however, has struggled to address extradition matters, leading several countries to note their inability to obtain extraditions from India and contributing to India’s relatively low success rate in seeking extradition.[77] Attorneys note that India’s lack of responsiveness frequently results in failure at the judicial level when fugitives litigate their extraditions in the courts.[78]

Notably, India’s cumbersome internal processes have had detrimental effects in the counterterrorism context. For instance, reports indicate that, because India was slow in sending an extradition request, a suspected terror financier and senior IM operative named Abdul Wahid Siddibappa was released by authorities in the UAE—a decision reportedly also influenced by pressure from Pakistan.[79] A more agile extradition framework likely would have resulted in a more favorable result.[80] Similarly, as for countries seeking extradition from India, the Indian judiciary can drag out extradition litigation for decades.[81] As a FATF report notes, “[p]roblems have been reported related to the delay the Indian authorities have in providing assistance on extradition, if extradition takes place at all. This raises concerns about the effectiveness of the extradition system in place in India.”[82]

The ability of Indian authorities to obtain and provide cooperation in transnational criminal matters could greatly be enhanced through the creation of effective central authorities that are empowered to facilitate international cooperation with less judicial reliance. The Indian government must ensure these central authorities are well resourced so that they can handle the high volume necessarily faced by a country of India’s importance. In addition, they must be staffed by experts who understand the international legal frameworks for mutual legal assistance and extradition, applicable Indian law, and relevant foreign law. Fortunately, India already has a corps of personnel capable of filling this role: sophisticated public servants with a wealth of expertise and international legal experience. Their capabilities need only to be channeled through a properly resourced, empowered institution that is capable of effective action.

IV. Conclusion

India is a key U.S. partner in South Asia and a potential “force for stability, prosperity, democracy, and the rule of law” in the region.[83] The United States thus has a vested interest in India’s long-term stability and its ability to effectively counter terrorism through a rule-of-law framework. Moreover, a key part of U.S. South Asia strategy is “to further develop [the United States’] strategic partnership with India.”[84] On that score, it is worth contemplating the degree to which targeted justice sector assistance might better enable Indian contributions to U.S. counterterrorism efforts worldwide. U.S. interests, therefore, call for the adoption of policies designed to augment the ability of India’s courts and related institutions to address terrorism and transnational crime. Doing so would help preserve regional stability, mitigate potential terrorist threats, and create a judicial bulwark against the spread of global jihadist groups.

To reach this desired end state, India must be able to provide justice effectively, in a timely fashion, and in a manner that comports with the rule of law. Indian authorities must also be able to obtain and provide assistance in criminal matters that transcend national boundaries. Indian prosecutors must be able to convict those responsible for terrorism and transnational crime. Although these essential functions are currently impaired by institutional frailty in the Indian justice sector, a major initiative by the United States government and international partners to improve the basic institutions responsible for India’s judicial administration and international cooperation can make India a more effective force against terrorism in South Asia and beyond. Given the current state of affairs, the consequences of not taking this remedial action would be continued risk to India’s government, regional stability, and vital U.S. interests. As our fates are intertwined, our efforts should be similarly combined.

 


 

* Dan E. Stigall is an attorney with the National Security Division of the U.S. Department of Justice (DOJ). He has served as Counsel to the Assistant Attorney General of the National Security Division and Senior Counsel to the Assistant Attorney General of the Criminal Division. He previously served with the DOJ Office of International Affairs where he was responsible for facilitating international cooperation with countries in Africa, Asia, and the Middle East (including India). Prior to joining DOJ, he served on active duty as a U.S. Army Judge Advocate (JAG) from 2001–2009. He has also served as an Adjunct Professor of International Law at The Judge Advocate General’s Legal Center and School (U.S. Army) and continues to serve as an officer in the U.S. Army Reserves.

Any opinion expressed is solely that of the author and not necessarily the U.S. Departments of Justice or Defense.

[1] Donald Trump, Remarks by President Trump on the Strategy in Afghanistan and South Asia (Aug. 21, 2017), https://www.whitehouse.gov/the-press-office/2017/08/21/remarks-president-trump-strategy-afghanistan-and-south-asia.

[2] Barack Obama, Remarks by President Obama in Address to the People of India at Siri Fort Auditorium, New Delhi, India (Jan. 27, 2015).

[3] Office of the White House Press Secretary, JOINT STATEMENT: The United States and India: Enduring Global Partners in the 21st Century (June 7, 2016).

[4] Robert D. Blackwill, Naresh Chandra, & Christopher Clary, The United States and India: A Shared Strategic Future, Council on Foreign Relations/Aspen Institute in India Joint Study Report (Sep. 2011), https://www.cfr.org/content/publications/attachments/USIndia_jointstudygroup_IIGG.pdf.

[5] See Office of the White House Press Secretary, Fact Sheet: The United States and India — Prosperity Through Partnership (June 26, 2017) [hereinafter “White House Fact Sheet”]; A model minority: How Indians triumphed in America, The Economist (Nov. 26th, 2016), https://www.economist.com/news/books-and-arts/21710784-america-needs-consider-what-it-might-lose-if-it-curbs-influx-clever.

[6] See White House Fact Sheet, supra note 5.

[7] See M.J. Warsi, In US, a growing influence of India’s cultural diversity, Deccan Herald (Mar. 16, 2015), http://www.deccanherald.com/content/466137/in-us-growing-influence-indias.html.

[8] David J. Karl, The Desi Factor in U.S.-India Relations, Foreign Policy (Oct. 21, 2015), http://foreignpolicy.com/2015/10/21/the-desi-factor-in-u-s-india-relations/.

[9] Karl F. Inderfurth & Bruce Riedel, Breaking New Ground with India: Build a Valuable Indo-U.S. Strategic Partnership, Brookings Institution (Apr. 8, 2008), https://www.brookings.edu/wp-content/uploads/2016/06/PB_India_Riedel.pdf.

[10] Manas Mohapatra, Learning Lessons from India: The Recent History of Antiterrorist Legislation on the Subcontinent, 95 J. Crim. L. & Criminology 315, 322 (2004).

[11] See, e.g., India faced more terror attacks than Syria in 2016: US report, The Indian Express (July 23, 2017); National Consortium for the Study of Terrorism and Responses to Terrorism, Annex of Statistical Information: Country Reports on Terrorism 2015 (2016), https://www.state.gov/documents/organization/257738.pdf.

[12] See Mohapatra, supra note 10, at 322–23.

[13] Id. at 323.

[14] Natalie Tecimer, As India confronts the threat within its borders, could it find common ground with the Trump administration?, The Diplomat (June 14, 2017), http://thediplomat.com/2017/06/india-and-the-fight-against-islamic-state/.

[15] Carin Zissis, Terror Groups in India, Council on Foreign Relations (Dec. 1, 2008), http://www.washingtonpost.com/wp-dyn/content/article/2008/12/01/AR2008120101461.html; Central Intelligence Agency, The World Factbook (July 2016), https://www.cia.gov/library/publications/the-world-factbook/geos/in.html.

[16] Heinrich Böll Foundation, Conflict in Northeast India: Issues, Causes and Concern (Feb. 28, 2009), https://in.boell.org/2009/02/28/conflict-northeast-india-issues-causes-and-concern.

[17] See United Liberation Front of Asom (ULFA), GlobalSecurity.org, http://www.globalsecurity.org/military/world/para/ulfa.htm (last visited Sept. 12, 2013).

[18] See National Liberation Front of Tripura (NLFT), GlobalSecurity.org, http://www.globalsecurity.org/military/world/para/nlft.htm (last visited Sept. 12, 2013).

[19] Sameer Lalwani, India’s Approach to Counterinsurgency and the Naxalite Problem, CTC Sentinel (Oct. 31, 2011), https://ctc.usma.edu/posts/india%e2%80%99s-approach-to-counterinsurgency-and-the-naxalite-problem.

[20] See generally Giorgio Shani, Sikh Nationalism and Identity in a Global Age (2007).

[21] Terrorism Profiles: Babbar Khalsa International (BKI), The Mackenzie Inst. (Dec. 4, 2015), http://mackenzieinstitute.com/babbar-khalsa-international-bki-3/.

[22] Id.

[23] Press Release, U.S. Department of Justice, Nevada Man Pleads Guilty to Conspiracy to Provide Material Support to Terrorists (Nov. 29, 2016) [hereinafter Nevada Press Release], https://www.justice.gov/opa/pr/nevada-man-pleads-guilty-conspiracy-provide-material-support-terrorists; Press Release, Fed. Bureau of Investigation, Reno Man Charged with Conspiring to Provide Material Support to Terrorism Groups in India and Pakistan (Dec. 18, 2013), https://archives.fbi.gov/archives/lasvegas/press-releases/2013/reno-man-charged-with-conspiring-to-provide-material-support-to-terrorism-groups-in-india-and-pakistan.

[24] Nevada Press Release, supra note 23.

[25] See Lashkar-e-Taiba, Stanford Univ.: Mapping Military Organizations, http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/79 (last updated Jan. 30, 2016).

[26] Press Release, U.S. Department of Justice, Chicago Resident David Coleman Headley Pleads Guilty to Role in India and Denmark Terrorism Conspiracies (Mar. 18, 2010) [hereinafter Headley Press Release], https://www.justice.gov/opa/pr/chicago-resident-david-coleman-headley-pleads-guilty-role-india-and-denmark-terrorism.

[27] Cathy Scott-Clark & Adrian Levy, The Siege: 68 Hours Inside the Taj Hotel 291 (2013); see also Headley Press Release, supra note 26.

[28] See Second Superseding Indictment at ¶ ¶ 1.D. and 6, United States v. Ilyas Kashmiri, et al., No. 09 CR 830, 2011 WL 1938505 (N.D. Ill. Apr. 21, 2011), available at https://www.investigativeproject.org/documents/case_docs/1520.pdf.

[29] Harkat-ul-Jihadi al-Islami, Stanford Univ.: Mapping Militant Organizations, http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/217 (last updated July 11, 2016).

[30] Id.

[31] Jaish-e-Mohammed, Stanford Univ.: Mapping Military Organizations, http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/95 (last updated June 25, 2015).

[32] Bureau of Counterterrorism and Countering Violent Extremism, U.S. Dep’t of State, Country Reports on Terrorism 2016 (2017), https://www.state.gov/j/ct/rls/crt/2016/272233.htm.

[33] Bill Roggio, US State Department adds Indian Mujahideen to list of terror groups, Long War J. (Sept. 15, 2011), http://www.longwarjournal.org/archives/2011/09/us_state_department_2.php.

[34] See Zissis, supra note 15.

[35] Press Release, Bureau of Counterterrorism and Countering Violent Extremism, U.S. Dep’t of State, Terrorist Designations of the Indian Mujahideen, (Sept. 15, 2011), https://www.state.gov/j/ct/rls/other/des/266633.htm.

[36] Id. There are obviously numerous other terrorist organizations operating in India, such as Pakistan-based Hizbul Mujahideen (HM), one of the largest and oldest militant groups operating in Kashmir, which was recently designated by the United States as a Foreign Terrorist Organization and a Specially Designated Global Terrorist group. See Press Release, U.S. Department of State, State Department Terrorist Designation of Hizbul Mujahideen (Aug. 16, 2017) https://www.state.gov/r/pa/prs/ps/2017/08/273468.htm.

[37] Alastair Reed, Al Qaeda in the Indian Subcontinent: A New Frontline in the Global Jihadist Movement?, International Centre for Counter-Terrorism – The Hague (May 2015), https://www.icct.nl/wp-content/uploads/2016/05/ICCT-Reed-Al-Qaeda-in-the-Indian-Subcontinent-May2016.pdf.

[38] Id.

[40] Dhruva Jaishankar, Assessing the Islamic State threat to India: It is a serious but manageable challenge, Brookings Institution (May 8, 2017), https://www.brookings.edu/opinions/assessing-the-islamic-state-threat-to-india-it-is-a-serious-but-manageable-challenge/.

[41] Tecimer, supra note 39.

[42] Id.

[43] Id.

[44] Majority Staff, House Homeland Security Committee, Terror Gone Viral: Overview of the 100+ ISIS-Linked Plots Against the West 5 (July 2016) (noting that the United States is the most-targeted country for ISIS external plotting and that “[a]round 40 percent of ISIS-linked Western plots specifically targeted the United States, its citizens, or its official presence overseas.”), https://homeland.house.gov/wp-content/uploads/2016/07/100-ISIS-Linked-Plots-Report-.pdf.

[45] See K. S. Subramanian, State, Policy and Conflicts in Northeast India 152 (2016).

[46] See Id.

[47] Prabhash K Dutta, AFSPA: Supreme Court orders CBI probe into face encounters in Manipur, IndiaToday (July 14, 2017), http://indiatoday.intoday.in/story/afspa-supreme-court-cbi-probe-fake-encounters-manipur/1/1001826.html.

[48] See Subramanian, supra note 45, at 156.

[49] Saji Cherian, Terrorism & Legal Policy in India, Faultlines, Feb. 2004, http://www.satp.org/satporgtp/publication/faultlines/volume15/Article6.htm.

[50] See Amy Kazmin, India’s court system offers little hope of justice: Acute delays and too few judges mean decades can pass before cases are resolved, Financial Times (Mar. 6, 2017), https://www.ft.com/content/e3e31e4e-0015-11e7-8d8e-a5e3738f9ae4.

[51] See How fast are fast-track courts?: These courts, set up to accelerate the delivery of justice, often deliver speedy verdicts that sometimes don’t make the cut, LiveMint (Dec. 16, 2014), http://www.livemint.com/Politics/n4Z5sIIen0TJ75ij1gDrYP/How-fast-are-fasttrack-courts.html; see also Vandana Peterson, Speeding up Sexual Assault Trials: A Constructive Critique of India’s Fast-Track Courts, 18 Yale Human Rights and Dev. J. 59, 107 n.252 (2017), http://digitalcommons.law.yale.edu/yhrdlj/vol18/iss1/2.

[52] Law Commission of India, Arrears and Backlog: Creating Additional Judicial (wo)manpower 1 (July 2014), http://lawcommissionofindia.nic.in/reports/Report245.pdf.

[53] Id.

[54] Id.

[55] E.g., India, World Prison Brief , http://www.prisonstudies.org/country/india (last visited Sept. 12, 2017); Vidhi Doshi, India’s long wait for justice: 27m court cases trapped in legal logjam: Calls for wholesale reform of legal system, with delays costing the country billions of rupees every year, The Guardian (May 5, 2016) (“More than 22m cases are currently pending in India’s district courts. Six million of those have lasted longer than five years. Another 4.5m are waiting to be heard in the high courts and more than 60,000 in the supreme court, according to the most recently available government data. These figures are increasing according to the decennial reports.”), https://www.theguardian.com/world/2016/may/05/indias-long-wait-for-justice-27-million-court-cases-trapped-in-a-legal-logjam.

[56] See Cherian, supra note 49.

[57] Rashmi Rajput, Poor Conviction Rate: Govt sanctions dedicated set of prosecutors for ATS cases, The Indian Express (Apr. 2, 2015), http://indianexpress.com/article/cities/mumbai/poor-conviction-rate-govt-sanctions-dedicated-set-of-prosecutors-for-ats-cases/; see Sandy Gordon, India’s Rise As An Asian Power: Nation, Neighborhood, and Region 31 (2014) (noting that across India, the conviction rate for crime under the Indian Penal Code was only 42.3 percent).

[58] See Cherian, supra note 49.

[59] Jayanth K. Krishnan & Viplav Sharma, Exceptional or Not? An Examination of India’s Special Courts in the National Security Context, in Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective 283 (Fionnuala Ní Aoláin & Oren Gros eds., 2013).

[60] Id. at 290–92; see National Investigative Agency Act 2008, No. 75 of 2008, secs. 11–21; Unlawful Activities (Prevention) Act of 1967, par. 5 (1) (“The Central Government may, by notification in the Official Gazette, constitute, as and when necessary, a Tribunal to be known as the ‘Unlawful Activities (Prevention) Tribunal’ consisting of one person, to be appointed by the Central Government.”).

[61] Srijoni Sen, Rukmini Das, Raadhika Gupta, & Vrinda Bhandari, Anti-Terror Law in India: A Study of Statutes and Judgments, 2001–2014 14 (2015), https://static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/5575b428e4b08898ef56bc60/1433777192655/150531_Vidhi+Terrorism+Report_Final.pdf.

[62] Id. at 14–15.

[63] Krishnan & Sharma, supra note 59, at 301.

[64] Sen et al., supra note 61, at 15.

[65] See LiveMint, supra note 51.

[66] Soutik Biswas, Do India’s ‘fast track’ courts work?, BBC News (Jan. 9, 2013), http://www.bbc.com/news/world-asia-india-20944633.

[67] Id.

[68] See LiveMint, supra note 51.

[69]. See Kimberly Prost, The Need for a Multilateral Cooperative Framework for Mutual Legal Assistance, in Counterterrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges 93 (Larissa Van Den Herik & Nico Schrijver eds., 2013).

[70]. Extradition, Black’s Law Dictionary (10th ed. 2014).

[71]. See Robert Cryer, Håkan Friman, Darryl Robinson, & Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure 95 (2010).

[72] See Dan E. Stigall, Countering Convergence: ‘Central Authorities’ and the Global Network to Combat Transnational Crime and Terrorism, 7 Air and Space Power J. – Afrique & Francophonie 48, 49 (2016), http://www.airuniversity.af.mil/Portals/10/ASPJ_French/journals_E/Volume-07_Issue-1/stigall_e.pdf.

[73] International Cooperation by Central Authorities “Essential” to Bringing Terrorists to Justice, CTED Expert Tells Regional Meeting in Morocco, UN Security Council Counter-Terrorism Committee (Feb. 11, 2014), http://www.un.org/en/sc/ctc/news/2014-2-5_ctedexpert_morocco_essential.html.

[74] Manoj Kumar Sinha, Extradition, in The SAGE Encyclopedia of Political Behavior 283 (Fathali M. Moghaddam ed., 2017).

[75] India Code of Criminal Procedure §166A, http://www.oecd.org/site/adboecdanti-corruptioninitiative/39838138.pdf; see Elonnai Hickock & Vipul Kharbanda, Cross Border Cooperation on Criminal Matters – A Perspective from India, The Centre for Internet & Society (July 10, 2016) (noting that “[t]he process of sending Letters Rogatory is enabled via 166A of the CrPc, which allows an investigating officer to issue a letter of request to a Court. The Court can issue such letter to the Central Government, who will then send it to the courts in the U.S. In 2007, the Ministry of Home Affairs issued comprehensive guidelines regarding letters of rogatory, extradition requests, and contact with foreign police – sighting issues in consistent and accurate use of such tools and processes.”), https://cis-india.org/internet-governance/blog/cross-border-cooperation-on-criminal-matters.

[76] Financial Action Task Force & Asia/Pacific Group on MoneyLaundering, Anti-Money Laundering and Combating the Financing of Terrorism 954 (June 25, 2010) (emphasis added) [hereinafter FATF Report], http://www.fatf-gafi.org/media/fatf/documents/reports/mer/MER%20India%20full.pdf.

[77] Mallya basks in slow rate of extradition, Pune Mirror (Apr. 26, 2017) (reporting that India has only a 36 percent success rate in extraditions over the past 15 years and that India has obtained only one fugitive from the United Kingdom 23 years after entering into an extradition treaty), http://punemirror.indiatimes.com/news/india/mallya-basks-in-slow-rate-of-extradition/articleshow/58366151.cms.

[78] Sandeep Unnithan & Uday Mahurkar, The Noose Tightens, India Today (April 20, 2017) (“‘The CBI will have to satisfy the court that there is prima facie a case against Mallya based on admissible evidence,’ says Edward Grange, partner in UK law firm Corker Binning. ‘This is where India has struggled in the past in its extradition requests. They have not been an active participant, and when called upon to answer the court’s questions, have been slow (if at all) in responding,’ Grange says.”).

[79] Rajesh Ahuja , India too slow, UAE lets off IM member, Hindustan Times (Oct. 6, 2014), http://www.hindustantimes.com/india/india-too-slow-uae-lets-off-im-member/story-mSXr6FU56fHonUbErKQw2H.html.

[80] Id.

[81] See 2016 International Narcotics Control Strategy Report (INCSR): Countries/Jurisdictions of Primary Concern – India, Bureau of Int’l Narcotics and Law Enforcement Affairs, U.S. Dep’t of State (Mar. 2016) (noting that “[a]lthough India is showing increasing capacity with regard to extradition, U.S. requests for extradition continue to be hampered by long delays which make the process of obtaining a fugitive from India slow. As with extradition, India is demonstrating gradually increasing ability to act on mutual legal assistance requests but continues to struggle with institutional challenges which limit their ability to provide assistance.”), https://www.state.gov/j/inl/rls/nrcrpt/2016/vol2/253405.htm#; see also David Jackson & Gary Max, Ex-priest on the run, Chicago Tribune (Mar. 11, 2012), http://www.chicagotribune.com/news/watchdog/ct-met-fugitives-priest-20120310-story.html.

[82] FATF Report, supra note 76, at 969.

[83] Blackwill et al., supra note 4.

[84] Trump, supra note 1.

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