The US State Department's decision to extend immunity to two former ISI chiefs in the 26/11 Mumbai terror attacks case is in accordance with a clandestine understanding reached between Admiral Mike Mullen and General Ashfaq Kayani during a day-long meeting held at a secluded resort in Oman on February 22, 2011.
The State Department informed a New York federal court on December 19 that the ISI and two of its former director generals enjoyed immunity and cannot be tried in the Mumbai terror attacks case.
But well-informed diplomatic circles in Islamabad say a commitment to this effect had been given to Pakistan's military top brass almost a year ago by their American counterparts during the Oman meeting.
Those who attended the Oman meeting [besides Kayani and Mullen] included General David Petraeus, the then commander of International Security Assistance Force, Admiral Eric Olson, commander of US Special Operations Command, General James Mattis, commander of US Central Command and Major General Javed Iqbal, the then director general Military Operations. Interestingly, the ISI and CIA chiefs were absent from the conference room during the high-powered meeting.
The meeting was meant to overcome the diplomatic crisis threatening the Pak-US ties in the wake of the arrest of Raymond Davis, an undercover CIA agent, who had killed two youngsters in Lahore on January 27, 2011. The shooting had led to a major diplomatic row between Washington and Islamabad as the Americans insisted that Davis enjoyed diplomatic immunity while Pakistanis argued that he was a CIA contractor and not an embassy employee to be given immunity.
In fact, the Davis episode took place hardly a few weeks after a US court summoned the then DG ISI Ahmed Shuja Pasha and several other senior army officers [in November 2010] for their alleged involvement in the Mumbai terror attacks.
The US summons had deeply upset the Pakistani military establishment, which was of the view that the spy chief of a friendly country should not have been treated like this. On December 16, 2010, shortly after the issuance of the summons, the Islamabad Police had moved to register a murder case against the then CIA station chief in Pakistan, Jonathan Banks, who was supervising the deadly drone campaign in the tribal areas. The complainant was a resident of North Waziristan, who wanted a murder case to be registered against Jonathan for the killings of his son and brother in a drone attack in December 2009.
The standoff had pushed the CIA and ISI into an eyeball-to-eyeball confrontation, compelling the military leadership of the two countries to hold a secret moot in a third country to resolve the crisis. The Pakistani side made it clear that any understanding to improve the ties, including the release of Davis, would include the withdrawal of the summons against the ISI chief. Subsequent to the clandestine deal, Raymond Davis was set free on March 16, 2011 by a Pakistani court after the families of the two killed men were paid $2.4 million as blood money. The CIA agent was immediately taken out of Pakistan.
Almost a year later, the US State Department has informed a New York court that the defendants in the Mumbai attacks case — Ahmed Shuja Pasha and Nadeem Taj — are immune from the law suit. The State Department also pointed out that its determination was not subject to judicial review. The US court had issued summons in November 2010 to Lt Gen Ahmed Shuja Pasha, Lt Gen Nadeem Taj, Hafiz Mohammad Saeed, Zakiur Rehman Lakhvi and five serving and retired Majors of the Pakistan Army for their alleged involvement in the Mumbai attacks, asking them to appear before it. The court was hearing a law suit filed by the relatives of Gavriel Noah Holtzberg, an American Jew and his wife Rivka who were shot dead at the Chhabad House in Mumbai during the 2008 terror strikes. Their son, Moshe, was saved by his Indian nanny.
Filed on November 19, 2012, the 26-page lawsuit stated: "The ISI has long nurtured and used international terrorist groups, including the LeT, to accomplish its goals and has provided material support to the LeT and other international terrorist groups. The Mumbai attacks were planned, trained for and carried out by members of defendant, the LeT. Defendant ISI provided critical planning, material support, control and coordination of the 26/11 attacks," the lawsuit alleged.
The lawsuit further alleged: "On and prior to November 26, 2008, the ISI, Ahmed Shuja Pasha, Nadeem Taj, as well as other officials, agents and employees of the ISI directed, engaged and/or relied upon the efforts of US-based individuals, including but not limited to David Headley and Tahawwur Rana, for raising funds, building a network of connections, recruiting participants and planning the operation of the Mumbai terror attack".
Noting that the LeT still operates training camps in Pakistan, Kashmir and Afghanistan, the petition alleged that the group has openly advocated violence against India, Israel and the US. It also named Muridke, Manshera and Muzaffarabad as centres of training camps operated by the Lashkar. The 10 LeT activists who undertook on-the-ground Mumbai attack underwent extensive training in the LeT camps in Pakistan, the lawsuit further alleged.
The lawsuit also claimed that Pakistani American LeT operative David Headley, who has already pleaded guilty to his role in the plotting of the Mumbai attack, built a network of connections from Chicago to Pakistan, undertaking these efforts at the direction and with the material support of both the LeT and ISI. Prior to and following each trip to Mumbai, Headley reported to and received further instructions from both the LeT and ISI.
"In September 2008, the 10 LeT attackers were moved to Karachi and installed in an ISI/LeT safe house and isolated from outside contact," it said, adding that while staying in the Karachi safe house, the attackers received specific instructions on Mumbai targets. The safe house was part of the ISI's "Karachi Project," an initiative by which anti-Indian groups were tasked and supported by the ISI in a surreptitious fashion to engage in acts of international terrorism.
As the US State Department has extended amnesty to two former ISI chiefs in the 26/11 case, India has reacted sharply, saying the American decision was a matter of deep and abiding concern as it 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 Mumbai attacks. India's National Investigation Agency (NIA) has already secured an Interpol Red Corner Notice against five officers of Pakistan Army for their alleged role in the Mumbai terror strikes.
They include Major Sajid Majid (named by David Headley, an American terror accused being tried in the US), Major Mohammad Iqbal (an ISI official and Headley's alleged handler who faces terrorism charges in the US for his role in the Mumbai attacks), Major Sameer Ali (an ISI official accused of having worked with Headley), Major Syed Abdul Rehman alias Pasha (accused of carrying out recruitments for the Lashkar-e-Taiba) and Major Abu Hamza (one of the alleged handlers of the Mumbai attackers who was on phone with the terrorists who carried out Mumbai attack). The warrants were issued on the basis of claim made by Headley that these people had worked in close coordination with him in executing the Lashkar-e-Taiba plans for carrying out the 26/11 strikes in Mumbai.
It took two days of persuasion for Headley to waive his right to silence under the US law and detail every meeting he had with his LeT handlers, including Hafiz Saeed and the ISI officials in Muzzaffarabad and Lahore before the 26/11 attacks. He told the NIA team in Chicago in the presence of US prosecutors, FBI agents and his lawyers, that his reconnaissance missions and its results were closely and jointly monitored by the LeT and ISI before he received fresh instructions. The 11th dossier, which India had handed over to Pakistan on June 18, 2010, contained every statement by Headley, which shows the ISI as a central player. "An ISI brigadier served as handler for Zakiur Rehman Lakhvi who is also close to DG ISI. The ISI funds LeT and shields Hafiz Saeed from interference," so said the 11th dossier while quoting Headley.
