White House Hides Culpability for Mumbai Attacks Beneath Judicial Immunity for ISI

“These facts and statements, though not yet in admissible form, require additional  investigation and discovery as to whether the ISI is a legitimate political subdivision of the Government of Pakistan. If facts elicited during jurisdictional discovery further support plaintiffs’ belief that the ISI is not a true political subdivision of Pakistan but, rather, an autonomous organization, the ISI would not be entitled to invoke the immunity Congress has afforded sovereign governments under the FSIA nor could it or its leadership rely on the common-law immunity available to legitimate state actors for official government acts.”–Rosenberg et al vLashkar-E-Taiba et al

“The defendants’ motion to dismiss on political question grounds should be denied or, at a minimum, deferred to allow the Executive Branch a chance to submit a statement of interest on the issue.”

[Evidently, whatever was in this "statement of interest," it was the documentation which was ruled-upon this past week in NY Federal Court, Eastern District of New York.  The evidence given by the White House (which none of us will ever see), was sufficient to satisfy the court that the ISI is a legitimate extension of the Pakistani state and NOT a fully independent autonomous entity.  Between this case in New York and its counterpart in Chicago ( UNITED STATES OF AMERICA v. ILYAS KASHMIRI, ET AL. ), the ISI has been given carte blanche to commit terrorism against the citizens of the United States, without paying any penalty in US courts.  The relevant claims against ISI by counsel for the defense are included beneath the DAWN article below]

Mumbai attacks case: India ‘disappointed’ at US immunity for ISI

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In this picture taken on November 27, 2008, flames rush out of the Taj Mahal Hotel in Mumbai, during an attack by militants. A US federal court is hearing a case filed by US survivors of the Mumbai attacks and family members of the victims against former Pakistani intelligence chiefs Shuja Pasha, Nadeem Taj and other ISI officials.—AFP Photo

NEW DELHI: India on Wednesday called a declaration that Pakistan’s intelligence service and former chiefs enjoy immunity in a case related to the 2008 Mumbai attacks a “serious disappointment”.

The Indian government has long alleged that the Inter-Services Intelligence agency was behind the Islamist attacks which left 166 people dead – an accusation denied by Islamabad.

The Indian statement was in response to an affidavit filed in a US court earlier in the week in which the US government said Pakistan’s ISI and its former chiefs, Ahmed Shuja Pasha and Nadeem Taj, “enjoy immunity” in the Mumbai attacks.

The US affidavit is “a matter of deep and abiding concern”, the Indian government statement said, noting Washington has publicly said it is committed to bringing “those responsible for the Mumbai terror attacks to justice”.

“The decision of the US authorities in this case is a cause of serious disappointment,” said the Indian statement.

The New York federal court is hearing a case filed by US survivors of the Mumbai attacks and family members of the victims against Pasha, Taj and other ISI officials.

Leaders of the Lashkar-e-Taiba (LeT) militant group, including its founder Mohammed Hafiz Saeed, are also named in the suit. India has accused Pakistan’s ISI of collaborating with the LeT to mount the attacks.

The US government insisted in its affidavit that Pakistan must take steps to dismantle the LeT and support India’s efforts to counter militant threats, according to the Press Trust of India (PTI).

But at the same time the affidavit said, “the ISI is entitled to immunity because it is part of a foreign state”, the PTI report stated.

India last month hanged Pakistani national Mohammed Ajmal Kasab, the lone surviving gunman of 10 attackers who raided targets including top hotels and a Mumbai railway station while holding elite Indian Special Forces at bay.

 

 

A. The Uncertain Status of Defendant Inter-Services Intelligence
The ISI exists without any legislative statute or executive order founding, creating or
authorizing its activities. Kreindler Decl., ¶¶ 5 – 8. Pakistan’s own current Attorney General,
Maulvi Anwar ul Haq, said to the Supreme Court of Pakistan less than nine months ago that no
rules or laws govern the ISI. See Kreindler Decl., ¶ 5.3 Similarly, Lieutenant Colonel Khalid
Iqbal Sahoo, Assistant Judge Advocate General of the Pakistan Army, filed a brief on behalf of
Pakistan’s Ministry of Defence with the Pakistan Supreme Court on July 11, 2006 in which he
stated that his ministry had no operational control over the ISI. Id., ¶ 7.4 On July 19, 2006, in
that same action, Tariq Wazeem Ghazi, a Defence Secretary with the Government of Pakistan,
submitted an affidavit to the Pakistan Supreme Court in which he also asserts that the
Government of Pakistan has no control over the ISI. Id., ¶ 8.5 Likewise, Sherry Rehman, a
Member of Pakistan’s National Assembly from 2002 to 2007 and Pakistan’s Minister of
Information from 2008 to 2009, wrote in June 2005 that the ISI “remain[s] above the law and
unaccountable.” Id., ¶ 10(g).
3 Plaintiffs are attempting to obtain the records from the proceedings at which Attorney General
Haq made these statements, which directly contradict the assertions in the declaration before this
Court. Kreindler Decl., ¶ 5.
4 Plaintiffs are attempting to obtain the brief Lt. Col. Sahoo submitted to the Pakistan Supreme
Court. Kreindler Decl., ¶ 7.
5 Plaintiffs are attempting to obtain the affidavit Secretary Ghazi submitted to the Pakistan
Supreme Court. Kreindler Decl., ¶ 8.

With increasing frequency, the ISI has, in fact, operated autonomously and even contrary
to the stated missions, laws and objectives of the Government of Pakistan. For example:
• According to Pakistan’s current Ambassador to the United States, between 1977 and
2002, the ISI attempted to manipulate Pakistan’s official government-held elections on at
least five occasions. See Kreindler Decl., ¶ 10(c).
• A United Nations commission concluded that the ISI hindered the investigation into the
assassination of former Prime Minister Benazir Bhutto and that it may have been
involved in other attempted assassinations of Ms. Bhutto. See id., ¶ 10(d) – (f).
• The ISI has long and deep ties with the terrorist group Lashkar-e-Taiba. See id., ¶ 11(a) –
(b). In the late 1980’s, the ISI created the LeT to fight proxy wars, including efforts
against the Soviet presence in Afghanistan and against India in the Kashmir region. See
id.
• The United designated the LeT a Foreign Terrorist Organization on December 26, 2001.
See id., ¶ 11(d). Shortly thereafter, on January 12, 2002, Pakistan’s then-leader, General
Pervez Musharraf, outlawed the LeT. See id., ¶ 11(e).
• For years after the LeT was outlawed, the ISI, acting in direct contradiction to the orders
of Pakistan’s government, continued to offer financial, logistic and personnel support to
the LeT. See id., ¶ 11(e) – (i).
• The LeT’s leader Hafiz Mohamed Saeed was imprisoned in light of General Musharraf’s
January 12, 2002 declaration. See id., ¶ 11(e). Despite this, the ISI facilitated Mr.
Saeed’s release from prison and thereafter made substantial financial payments to him.
See id.
• In 2008, the civilian Government of Pakistan attempted to put the ISI under the control of
Pakistan’s Ministry of the Interior, but the ISI refused to comply with those efforts. See
id., ¶ 10(b).
Western leaders, like their Pakistani government counterparts, have also called into
question the legitimate authority of the ISI, noting that it has and continues to act in ways that are
contrary to the stated goals and missions of the Government of Pakistan. For example, the
United States Ambassador to Pakistan from 2007 to 2010, Anne Patterson, noted in November
2008 the troubling “extent of [Lashkar-e-Taiba’s] current relationship with the ISI,” despite the
fact that the Pakistan government had outlawed the LeT. See Kreindler Decl., ¶ 11(l), Exhibit

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