‘Immunity’ to ISI chiefs
S M Hali


Pakistan’s Ministry of Foreign Affairs has strongly rejected news analyses carried by a section of the media, portraying the determination made by the US State Department seeking immunity for the former chiefs of the Inter-Services Intelligence (ISI) as part of some “deal”.

The Foreign Office spokesperson rejected such insinuations as “totally baseless and incorrect”, according to a press release of the Foreign Office.

It is interesting how facts can be twisted through a play of words. The US government has informed a New York court that the ISI and its former director generals “enjoy immunity” in the case filed by the relatives of the victims of Mumbai terror attacks and have not been “granted immunity” as is being implied.

The Principal Deputy Assistant Attorney General, Stuart Delery, informed a US federal court on December 17, 2012, in a submission filed by the relatives and family members of the American victims of the Mumbai tragedy, naming former chiefs of the ISI as respondents, that the ISI is entitled to immunity because it is part of a foreign state within the meaning of the Foreign Sovereign Immunities Act (FSIA).

The FSIA of 1976 is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602-1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies or instrumentalities) may be sued in American courts - federal or state!

The genesis of the issue is that in November 2010, a civil law suit was filed by the six legal heirs of the Mumbai terror attacks in the district court in New York. The cases filed were against the ISI, its two DGs and a few others for monetary damages worth millions of dollars for the wrongful death, injuries and survival claims.

The plaintiffs, represented by law firm Kreindler and Kreindler LLP (Lockerbie fame), argued that the Mumbai attacks were knowingly planned and supervised by the ISI and its two DGs basing their case on the implication of David Coleman Headley (Daood Sayed Gilani), who was arrested in October 2009 by the FBI from Chicago on the allegations of his involvement in the Mumbai attacks.

In March 2010, Headley entered into a plea bargain and confessed carrying out reconnaissance of various targets in India.

In June 2010, India’s National Investigation Agency (NIA) was granted access to cross-examine Headley, when he started to sing like a canary and implicated the ISI for training and launching him on the attack. The Indian leadership jumped at the “confession”, pointedly blaming Pakistan and the ISI for complicity in the 26/11 attacks.

On May 31, 2011, however, Mr Headley changed his testimony, absolving the ISI leadership from planning the 2008 Mumbai attacks. Of course, in view of his checkered past, there is very little credence that can be given to Mr Headley’s “confessions”.

In 1987, he was first arrested on drug trafficking charges, but became an informer for the US Drug Enforcement Agency (DEA) in exchange for a lighter sentence.

Reports indicate that he visited Pakistan on numerous occasions to carry out sting operations and may have also become a CIA agent to infiltrate al-Qaeda. More so, the Indian authorities’ efforts for his extradition have been unsuccessful. According to US media reports, Headley will be sentenced on January 17, 2013.

Following the summons issued to the ISI chiefs in November 2010, after extensive deliberations, Pakistan’s Prime Minister directed the Foreign Office to defend the case against the ISI and its two DGs. A law firm M/s Locke Lord and Bissell (LL&B) was hired to represent the case while the services of Mr Ahmer Bilal Soofi were acquired to serve as local attorney.

In July 2011, the Defence Counsel moved for the dismissal of the motion on grounds of sovereign immunity, political question and jurisdiction based on the proposition that the ISI and its two DGs are not subject to the jurisdiction of the court of another state on account of FSIA. The judge of the court referred the matter to US State Department for the submission of ‘Statement of Interest’ on the plea of foreign immunity.

The State Department, after considerations for almost seven months, has submitted its response taking clear a position that being an integral part of the Pakistani state, the ISI and its two DGs enjoy state immunity.

As expected, India is raising a hue and cry over the “immunity” aspect, but it is a cut and dried case. For some members of the local media to conjure a conspiracy theory is equally preposterous.