Washington, 19 December 2012. The US State Department has informed a New York court that Pakistan’s Inter-Services Intelligence and two of its former directors general “enjoy immunity” and cannot be tried in the Mumbai terror attacks case.
“Upon consideration of this matter, and after a full review of the pleadings, the Department of State has determined that defendants Ahmed Shuja Pasha and Nadeem Taj are immune from suit in this case,” said an official letter sent to the US Department of Justice.
The State Department also pointed out that its determination was “not subject to judicial review”.
India, however, rejected the determination, saying that the US affidavit was “a matter of deep and abiding concern” and contradicted Washington’s public commitment to bringing “those responsible for the Mumbai terror attacks to justice”.
Six Americans were among the 166 killed in the Nov 26, 2008, terrorist attacks in the Indian city and later their relatives filed a case in a New York court, listing two former ISI chiefs among the accused.
Lashkar-e-Taiba leaders, Mohammed Hafiz Saeed, Zakiur Rahman, Sajid Mir and Azam Cheema are on the same list.
The complainants claimed that since the ISI was involved in the planning and execution of the attack, Mr Pasha and Mr Taj should be asked to appear before the court.
But on December 17, a State Department legal adviser, Harold Hongju Koh, informed the Department of Justice of its determination that both Mr Pasha and Mr Taj enjoyed immunity and, therefore, could not be called to a court in the United States.
“The residual immunity of a former official is based upon that official’s conduct and extends only to acts that individual took in an official capacity,” explained Mr Koh in a letter addressed to the US Principal Deputy Assistant Attorney General Stuart Delery.
On December 17, Mr Delery submitted a 12-page affidavit in the court, saying: “In the view of the United States, the Inter-Services Intelligence is entitled to immunity because it is part of a foreign state within the meaning of the Foreign Sovereign Immunities Act.”
The Department of State has also determined that the two former ISI chiefs were also “immune because plaintiffs’ allegations relate to acts that these defendants allegedly took in their official capacities as directors of an entity that is undeniably a fundamental part of the government of Pakistan,” he said.
“Because foreign sovereign immunity and foreign official immunity provide an adequate basis upon which to dispose of this case … the United States takes no position on the political question doctrine issues that are also presented in this case,” he added.
“In making this immunity determination, the United States emphasises that it expresses no view on the merits of plaintiffs’ claims. The United States strongly condemns the terrorist attacks in Mumbai and continues to believe that the Islamic Republic of Pakistan must take steps to dismantle LeT and to support India’s efforts to counter this terrorist threat,” the affidavit said.
A lawyer representing the ISI and its two former chiefs informed the court that the agency was a part of the Pakistani government and functioned under the Ministry of Defence.
The lawyer disagreed with the plaintiffs’ claim that the ISI was “not governed or authorised by Pakistani law” and was “not under the control of the Pakistani government”.
The US executive and legislative branches had “consistently treated the ISI as part of the Government of Pakistan,” the lawyer pointed out.
“The executive branch holds official meetings with representatives of the ISI, issues them diplomatic visas consistent with their status as Pakistani government employees and in all respects recognises the ISI as part of the Government of Pakistan,” the lawyer said.
“Congress likewise has specifically recognised that the ISI is part of the Pakistani government,” he argued.
The attorney also noted that so far no US court had concluded that a component of a foreign state lacked immunity because the foreign state allegedly did not control its actions.
“Plaintiffs’ theory is particularly unusual in the context of an intelligence agency, which, like a foreign ministry or defence ministry, serves a quintessentially sovereign purpose,” he argued.