Rosenberg et al v. Lashkar-E-Taiba et al

Filing 15

MEMORANDUM in Opposition re 12 MOTION to Dismiss for Lack of Jurisdiction filed by All Plaintiffs. (Walsh, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Memorandum of Law in Opposition
to Motion to Dismiss Submitted by
Defendants Inter-Services
Intelligence, Pasha and Taj

Shimon ROSENBERG, et al.; Kia SCHERR,
et al.; and Emunah CHROMAN, et al.,
Plaintiffs,
v.

10-cv-5381
10-cv-5382
10-cv-5448

LASHKAR-E-TAIBA (also known as Idara
Khidmat-e-Khalq, Jamat ud Dawa, Markaz ud
Dawa and Tehrik-e-Tahaffuz-e-Qibla Awal);
MOHAMAED HAFIZ SAYEED; ZAKI ur
REHMAN LAKHVI; SAJID MAJID (also
known as Sajid Mir); AZAM CHEEMA;
INTER-SERVICES INTELLIGENCE of the
ISLAMIC REPUBLIC OF PAKISTAN;
AHMED SHUJA PASHA, NADEEM TAJ,
MAJOR IQBAL and MAJOR SAMIR ALI,
Defendants.

PRELIMINARY STATEMENT
Plaintiffs, the United States victims of the November 26, 2008 Mumbai terror attacks and
their surviving family members, have brought a civil action against, among others, defendants
Inter-Services Intelligence (“ISI”) Ahmed Shuja Pasha (“Pasha”), the current ISI director, and
Nadeem Taj (“Taj”), the former ISI director, pursuant to the Antiterrorism Act (“ATA”), 18
U.S.C. § 2331 et seq. and supplemental causes of action. Defendants ISI, Pasha and Taj (the
“moving defendants”) have raised a facial challenge to this Court’s subject matter jurisdiction on
the grounds that they are immune under either the Foreign Sovereign Immunities Act, 28 U.S.C.
§ 1603 et seq. (“FSIA”), or principles of common law immunity and that the lawsuit presents
non-justiciable political questions, despite the fact that during the recently concluded criminal
1 

prosecution of Tahawwur Rana, the United States Department of Justice relied upon much of the
same evidence and arguments regarding the ISI and the Mumbai attacks that the plaintiffs intend
to present in this action.
In support of their facial challenge to the complaints,1 the moving defendants have
submitted sworn statements and documentary exhibits, arguing that no questions of genuine fact
exist on the jurisdictional and justiciability questions. For the reasons set forth below, however,
this Court should defer a decision on the immunity argument and deny, or, at the least, defer the
motion to dismiss on political question grounds. With respect to sovereign immunity, the
plaintiffs must be allowed to conduct limited jurisdictional discovery and the Executive Branch
must be provided an opportunity to submit a statement of interest. As for the political question
issue, the federal government has already impliedly taken the position that the assertions in
plaintiffs’ claims raise no non-justiciable issues, as the Department of Justice presented the same
arguments and theories in a recent criminal prosecution arising out of the Mumbai attacks. If the
Court requires further articulation of the government’s position, however, a decision on the
justicability argument should be deferred to allow the Executive Branch to submit a statement of
interest on this issue, as well.
I.

OVERVIEW

Plaintiffs and their decedents all suffered terrible physical, emotional and pecuniary
injuries as a result of the Mumbai terror attacks. The moving defendants, acting both

1

A facial challenge to subject matter jurisdiction under Rule 12(b)(1) is reviewed under the same
standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Lerner v. Fleet
Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). Although the moving defendants do not expressly
state that their challenge is a facial one, their attacks are limited to the allegations in plaintiffs’
complaints and they concede that for purposes of this motion, the Court must accept the factual
allegations in the complaints as true. Moving Defendants’ Memorandum of Law in Support of
Motion to Dismiss (“Def. Memo. of Law”), p. 9.
2 

independently and in concert with the terrorist organization Lashkar-e-Taiba (“LeT”) and its
members, also named in this suit, provided critical planning, material support, control and
coordination of those attacks.
Since commencing this lawsuit, plaintiffs’ counsel has met with senior staff members of
the Executive and Legislative Branches, advising them of the claims made in this litigation.
Declaration of James P. Kreindler (“Kreindler Decl.”), attached hereto, ¶¶ 3, 24. Despite such
notice, the United States Government has not, to date, filed a statement of interest on the
immunity or political question issues. Id., ¶ 3. While such silence may create a presumption that
the Executive Branch does not support a finding of immunity or non-justiciability here, deferral
of a decision on this motion would allow the government an opportunity to submit a written
statement regarding those issues.
In support of their immunity claims, movants rely on two documents: (1) a declaration
from the country’s current attorney general, Maulvi Anwar ul Haq and (2) a heavily-redacted
half-page document in translation (from an unidentified language) bearing no official seal,
purported to be a letter establishing the ISI in 1948. Mr. ul Haq, however, has recently stated
during proceedings in Pakistan’s Supreme Court that no legal instrument supports the creation or
functioning of the ISI and that the organization is not bound by any of Pakistan’s rules or laws, a
representation in conflict with the assertions in his declaration.2 Plaintiffs, who contend that the
ISI is not a political subdivision of the Government of Pakistan for purposes of the FSIA, and
that its directors are not shielded by common law immunity, must be afforded an opportunity to

2

Mr. ul Haq’s prior in-court statements are consistent with representations by Pakistan officials
in other court proceedings, as discussed in greater length below.
3 

test the veracity and credibility of the defendants’ submissions through jurisdictional discovery;
and the United States Government must be afforded an opportunity to weigh in on these issues.
Further, this case presents no non-justiciable political question. The facts, assertions and
arguments plaintiffs rely on in their claims is, in most respects, the same as the information
proffered by the United States Department of Justice during its recent criminal prosecution of
Tahawur Rana in the Northern District of Illinois and in its recently unsealed criminal indictment
of non-moving defendant Major Iqbal. See Kreindler Decl., ¶ 16, Exhibit KK, United States v.
Kashmiri et al., 09-cr-830, docket entry number 213. Judicial resolution of the claims here
requires no greater intrusion into foreign affairs or political matters than those criminal
prosecutions in which the Executive Branch has voluntarily sought out judicial consideration of
these issues. Given the manner in which the federal government has proceeded in the Rana
prosecution and the Iqbal indictment – and its silence regarding this litigation, despite having
known about the plaintiffs’ suit for nearly a year – the question as to whether these lawsuits
implicate political questions has already impliedly been answered in the negative. In addition,
plaintiffs’ wrongful death and injury claims are made pursuant to federal statutes passed by
Congress and signed into law by the President (as well as the common law) and, thus, have the
implicit approval of the political branches. For all of those reasons, 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.
II.

BACKGROUND

While the moving defendants have submitted a declaration and a single document
purportedly establishing the ISI’s status as a “political subdivision” for Foreign Sovereign
Immunity Act purposes, this issue is far from settled and is, in fact, the subject of contentious
4 

debate within Pakistan, among United States government representatives and by a variety of
experts. Questions regarding the creation, authority and control of the ISI must be answered
before the moving defendants’ immunity motion can be decided.
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. 
5 

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
6 

CC. During a 2008 interview, the NATO Commander in Afghanistan, United States General
David D. McKiernan, observed that “there certainly is a level of ISI complicity in the militant
areas in Pakistan and organizations such as the Taliban.” Id., ¶ 11(k), Exhibit BB. Reflecting
these concerns, a United States-produced document assisting investigators at Guantanamo
includes the ISI in “a list of terrorist and terrorist support entities identified as associate forces
… .” Id., ¶ 11(j), Exhibit AA.6
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.
B. The Role of the ISI in the Mumbai Terror Attacks
In addition to the ISI’s historical independence from the Pakistani government and its
record of defying and obstructing the aims and objectives of the Pakistani state, which, alone,
warrant jurisdictional discovery, substantial evidence (much of it based on testimony presented
by the United States Government in the Rana trial) confirms plaintiffs’ charge that the ISI was
intimately involved in the planning, design and execution of the Mumbai terror attacks.
During the recent criminal trial of Tahawwur Husain Rana in the United States District
Court for the Northern District of Illinois, the United States Government called David Headley

6

Recently obtained classified intelligence also shows that the ISI directed the 2011 killing of an
investigative journalist. See Kreindler Decl. ¶ 10(j), Exhibit P. The Government of Pakistan has
convened an investigation into the matter in light of the allegations against the ISI. Id.
7 

as a witness. Prior to his trial, Headley had told Indian investigators that “every important
member of LeT is handled by one or more ISI officials.” Kreindler Decl.¶ 18, Exhibit MM, NIA
Headley Report, p. 5. While testifying for the federal government last month, Headley said that
after training with the LeT, he entered Pakistan’s tribal areas, where he was recruited by the ISI
sometime in early 2006. Kreindler Decl., ¶ 11(n), Exhibit FF, Hedley Testimony, pp. 671 - 673.
At that time, non-moving defendant Major Iqbal became Headley’s ISI “handler,” directing,
along with LeT members, Headley’s reconnaissance efforts in Mumbai and providing Headley
with $25,000 to help fund the terror attacks. Kreindler Decl. ¶ 14, Exh. FF, Headley Testimony,
pp. 689, 141. According to Headley, the ISI settled him in Mumbai, providing him a cover
business and directions on sites and locations to conduct surveillance on in anticipation of a
terrorist attack. Id., pp. 732 - 733. All efforts Headley made in preparation for the Mumbai
attacks, such as target selection, the route for an amphibious approach to the city and a proposed
safehouse for the gunmen on the ground, were submitted to and approved by the ISI. Id., pp. 744,
746.
With the material support and encouragement of the ISI, Headley explored the sites
targeted for the Mumbai attacks, including the Chabad House, the Oberoi Trident Hotel, the Taj
Mahal Hotel, the CST Railway station and the Leopold Café. Id., pp. 733 - 734. Between the
winter of 2006 and the summer of 2008, Headley communicated with ISI leaders regarding his
many surveillance trips to Mumbai, providing them with oral and video reports. Id., pp. 744, 746.

8 

In return, the ISI continued to give Headley instructions regarding further reconnaissance trips.
Id., p. 191. 7
Just before the Rana trial, the United States Government filed a criminal indictment
against non-moving defendant Major Iqbal, naming him as a conspirator in the Mumbai attacks.
See Kreindler Decl., ¶ 16, Exhibit KK. But Major Iqbal was not the only ISI official working on
the Mumbai attacks. Headley testified that his first contact with the ISI was with non-moving
defendant Major Ali, who then turned him over to Major Iqbal. See Kreindler Aff., ¶ 14, Exhibit
FF, Headley Testimony, p. 671. ISI Brigadier Riyaz was the ISI handler of defendant Zaki ur
Rehman. See Kreindler Aff., ¶ 18, Exhibit MM, NIA Headley Report, p. 5. ISI Colonel Shah
established and oversaw the Karachi safehouse, from which the Mumbai attack was planned. Id.,
p. 6. ISI Colonel Hamza was defendant Major Iqbal’s superior. See id., p. 9. Headley, whose
training was directed by Major Iqbal, worked with numerous low-level ISI members. See
Kreindler Aff., ¶ 14, Exhibit FF, Headley Testimony, p. 676.
Based on the substantial preparation work Headley conducted for the ISI and LeT, ten
attackers approached Mumbai by boat, anchoring off the shore of the city on the night of
November 23, 2008. That night, the ten attackers split up, targeting the various sites previously
selected by the ISI. The terrorists attacked the sites with firearms, bombs and other explosive
devices brought with them from Karachi, murdering and injuring 170 people, including plaintiffs
and their decedents.

7

Headley’s trial testimony was consistent with what he said in prior grand jury proceedings,
where he testified that he “had been asked to perform espionage work for ISI” and that, at the
behest of the ISI, he was on “assignment to conduct surveillance in Mumbai.”Kreindler Decl., ¶
13, Exhibit II, United States v. Rana, 09-cr-830, docket entry no. 197, slip op. at 3 - 4 (N.D.Ill.
April 1, 2011).
9 

C. Recent Events and Discoveries Involving the ISI
Recent discoveries and governmental statements further reveal the ISI’s extensive
involvement with terrorist groups and its continued proclivity to operate without legal authority.
Following the Mumbai attacks, Ambassador Patterson, noted that it was not clear that Pakistani
government leaders “have the power to force ISI to take action” regarding Lashkar-e-Taiba’s
activities inside Pakistan borders. Kreindler Decl., ¶ 11(l), Exhibit CC.8
In May of this year, the discovery of Osama bin Laden hiding deep inside Pakistan, a
country whose officials and leaders have avowedly supported the United States efforts to bring
bin Laden and other terrorists to justice, has focused additional suspicion on the ISI. Following
the raid on the bin Laden compound, United States government officials have noted the probable
involvement of the ISI in sheltering the terrorist leader. On May 6, 2011, Senator Christopher
Coons, in a hearing before the Senate Foreign Relations Committee, stated that “at best, the ISI
was unable to detect bin Laden’s presence, at worst it was complicit in providing him safe haven,
probably for six years and in either way, it then challenges us to recalibrate our relationship.”
Kreindler Decl., ¶22, Exhibit RR. This opinion is shared by individuals with direct knowledge
of the relationship between bin Laden and the ISI. Two Pakistani militants (including one who
personally met with bin Laden twice) recently interviewed by New York Times reporters have
stated that they “received support from the ISI for years,” and are both “convinced that the ISI
played a part in sheltering Bin Laden.” Id., ¶ 11(o), Exhibit GG, Seized Phone Offers Clues to
Bin Laden’s Pakistani Links.

8

These concerns regarding the ISI are shared by key United States allies. On June 10, 2002,
Jack Straw, then the Foreign Secretary of the United Kingdom, stated to Parliament that “Her
Majesty’s Government accepts that there is a clear link between the ISI[] and” terrorist
organizations, including Lashkar-e-Taiba. Kreindler Decl., ¶ 11(f) Exhibit X, Statement of
Secretary Straw.
10 

Supporting these suspicions is the long history of cooperation between the ISI and bin
Laden. While bin Laden was in Sudan from 1991 – 1996, the ISI maintained contact with the Al
Qaeda leader and likely “had advance knowledge of” his return to Afghanistan. Kreindler Decl.,¶
11(c), Exhibit U, 9/11 Commission Report, p. 64. The ISI introduced bin Laden to Taliban
leaders in Kandahar, Afghanistan, hoping to convince the Taliban to allow bin Laden to
reestablish control over his former militant training camps in that country. Id., pp. 64 – 65.
While Al Qaeda was building up to the September 11, 2001 attacks, the ISI financed hundreds of
weapons purchases directed by bin Laden on behalf of Al Qaeda, including the acquisition of
Chinese and Russian made surface to air missile. See Kreindler Decl., ¶11(i), Exhibit Z, Rear
Admiral Thomas Report, pp. 2, 6, 7.
The ISI, contrary to the position taken by the Government of Pakistan, which has been
declared a major ally of the United States (see Exhibit B to Declaration of Kevin J. Walsh), was
providing financial, strategic and logistical support to bin Laden and Al Qaeda, declared enemies
of the United States. See Kreindler Decl., ¶ 11, Exhibits Q and R.
III.

THE DEPARTMENT OF STATE’S VIEWS ARE
CRITICAL TO THIS MOTION

The immunity of foreign parties from lawsuits in this country “is a matter of grace and
comity on the part of the United States[.]”Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480,
486 (1983); see also The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) (in
dispute between United States citizens and the French navy over ownership of a ship, the
Supreme Court, relying on the federal government’s statement of immunity in favor of the
French party, dismissed the action). In the context of both foreign sovereign immunity and
political question claims, United States courts have consistently recognized that the positions
taken by the political branches must be granted deference. See Whiteman v. Dorotheum GmbH,
11 

431 F.3d 57, 69 (2d Cir. 2005) (“Judicial deference to the Executive Branch on questions of
foreign policy has long been established under the prudential justiciability doctrine known as the
‘political question’ doctrine[.]”)
A. Executive Branch Statements of Interest in the Political Question Context
When facing a political question defense, “there is a strong argument that federal courts
should give serious weight to the Executive Branch’s view of the case’s impact on foreign
policy.” Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n. 21 (2004).9 Though an assertion of the
political question doctrine by the Executive Branch does not necessarily preclude adjudication, it
is, nevertheless, “entitled to respectful consideration.” Kadic v. Karadzic, 70 F.3d 232, 250 (2d
Cir. 1996); see also Jota v. Texaco Inc., 157 F.3d 153, 159-161 (2d Cir. 1998) (though the views
of foreign nations are a consideration in the political question context, they are not dispositive.)
In political question cases, the Executive Branch frequently submits statements of interest
with the court in order to express its position. See, e.g., Spectrum Stores, Inc. v. Citgo Petroleum
Corp., 632 F.3d 938, 951 – 52 (5th Cir. 2011) (Departments of State, Treasury, Energy and
Justice filed statements arguing that adjudication of case “would result in the frustration of
various objectives ‘of vital interest to the United States’ national security”); Vietnam Ass’n for
Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 108 (2d Cir. 2008) (United States
submitted a statement of interest supporting defendants’ position with respect to the political
question doctrine); Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1205 – 06 (9th Cir. 2007) (giving
State Department’s statement of interest “great weight,” but nevertheless denying dismissal

9

The Executive Branch’s opinion regarding political questions is important, but not dispositive.
See, e.g., First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763 (1972) (Powell,
J., concurring) (“I would be uncomfortable with a doctrine which would require the judiciary to
receive the Executive’s permission before invoking its jurisdiction. Such a notion, in the name
of the doctrine of separation of powers, seems to me to conflict with that very doctrine.”)
12 

political question dismissal motion); Doe v. Exxon Mobil Corp., 473 F.3d 345, 354 (D.C.Cir.
2007) (Legal Adviser of the State Department submitted letter noting that whether the case
“would adversely affect U.S. foreign policy depends upon ‘the nature, extent, and intrusiveness
of discovery’”); Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232 fn. 6 (11th Cir.
2004) (United States filed statement of interest informing the court that dismissal was in the
foreign policy interests of the country).
Without a statement from the federal government that litigation impermissibly impedes
upon the prerogatives of the political branches, the argument for dismissal is substantially
weakened. Compare Gross v. German Foundation Indus. Initiative, 456 F.3d 363, 382 (3rd Cir.
2006) (reversing trial court’s finding of non-justiciability in suit seeking additional funds for
victims of Nazi-era wrongs in part because the Executive Branch filed no formal statement of
interest) with Whiteman, 431 F.3d at 69 (“this case has elicited a statement of interest in which
the United States invoked ‘its foreign policy interests’ to urge the dismissal of plaintiffs’ claims”
and, accordingly, dismissing those actions).
Indeed, if the interests that are the subject of the political question doctrine are implicated
in a lawsuit, a court “would expect some communication from the United States Executive –
direct intervention, a Statement of Interest under the Executive Agreement, a statutory statement
of interest under 28 U.S.C. § 517, a letter to the court, or any other way in which the United
States Executive can make its interests known to a court.” Gross, 456 F.3d at 380; see also
Alperin v. Vatican Bank, 410 F.3d 532, 556 – 57 (9th Cir. 2005) (noting “the Executive Branch’s
continuing silence on the Holocaust survivors’ claims,” but stating “[h]ad the State Department
expressed a view, that fact would certainly” factor in the political question decision). The
interests, if any, of the Executive Branch in this litigation, are a substantial factor for the political
13 

question determination and the United States should be invited to, if it chooses to do so, submit a
written statement before this Court reaches a decision on the issue. Following such an invitation,
the absence of such a statement would be even further proof that this case is not barred by the
political question doctrine.
B. Statements of Interest in the Foreign Sovereign Immunity Context
As with the political question doctrine, the Executive Branch’s view on foreign sovereign
immunity is highly probative. Prior to enactment of the Foreign Sovereign Immunity Act, if the
Executive Branch submitted a certification asserting that a foreign party was immune from suit
“to the district court, it became the court’s duty, in conformity to established principles, to …
proceed no further in the cause.” Ex parte Republic of Peru, 318 U.S. 578, 589 (1943); see also
Mexico v. Hoffman, 324 U.S. 30, 37 (1945) only “[i]n the absence of recognition of the claimed
immunity by the political branch of government,” are the courts to decide for themselves
whether a foreign party is entitled to sovereign immunity.) Thus, whether the Executive Branch
supported a claim of sovereign immunity or was silent on the matter was the determining factor
in deciding whether a foreign defendant was immune from suit in this country. See Verlinden,
461 U.S. at 486 – 87 (discussing judicial history of sovereign immunity); Restatement (Third) of
Foreign Relations of Law of the United States (“Restatement (Third)”), pt. IV, ch. 5, subch. A,
introductory note (1987).
The Executive Branch need not file a statement simply on its own initiative. Foreign
parties sued in the United States courts have, historically, regularly made requests to the
Department of State asking it to submit a suggestion of immunity to the courts. See H.R. Rep.
94-1487, 1976 U.S.C.C.A.N. 6604, 6606, 1976 WL 14078, *2 (regarding immunity to suit,
“when a foreign state wishe[d] to assert immunity, it [would] often request the Department of
14 

State to make a formal suggestion of immunity to the court.”); see also Restatement Third, pt.
IV, ch. 5, subch. A, introductory note (regarding immunity).
The 1976 enactment of the Foreign Sovereign Immunity Act codified sovereign
immunity, granting foreign governments immunity from lawsuits involving the foreign state’s
public acts under a theory referred to as the restrictive principle of sovereign immunity, by which
“the immunity of a foreign state is ‘restricted to suits involving a foreign state’s public acts.’”
H.R. Rep. 94-1487, 1976 U.S.C.C.A.N. 6604, 6605, 1976 WL 14078, *2. Nevertheless, the
Executive Branch retained the authority to file a statement of interest with the court in order to
express its position on immunity issues. See, e.g., 28 U.S.C. § 517. And the government’s views
on matters implicating relations with foreign states are entitled to serious judicial consideration.
See Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004). Indeed, when the United States
Government submits statements of interest regarding immunity to federal courts, “there is a
strong argument that federal courts should give serious weight to the Executive Branch’s view on
the case’s impact on foreign policy.” Sosa v. Alvarez-Machain, 542 U.S. at 733 fn. 21 (citing
Altman as to the impact of a statement of interest). This deference to the political branch is
highly “case-specific” and depends on the political and foreign policy interests implicated by the
individual litigation. Id.
Given the historical deference given the Executive Branch on pre-FSIA immunity
determinations, when the issue of immunity arises with respect to individual actors, who are not
entitled to FSIA immunity, the views of the State Department are critically necessary in order to
make a determination regarding common-law immunity. See Samantar v. Yousuf, 2007 WL
2220579, *6 (E.D.Va. Aug. 1, 2007) (deferring decision on immunity for two years in order to
allow the United States Department of State to submit a statement of interest on the sovereign
15 

immunity arguments), reversed on other grounds by 552 F.3d 371 (4th Cir. 2009) and affirmed
and remanded by 130 S.Ct. 2278; see also Abi Jaoudi v. Cigna Worldwide Ins. Co., 2:91-cv06785, docket entry number 231 (on remand from Third Circuit, entering order requesting that
Department of State file a statement of interest within 60 days on, among other things, issue of
common law immunity).
Plaintiffs in this action have informed representatives of the political branches of their
claims but, to date, no governmental representative has made any formal or informal declaration
that this tort lawsuit should be dismissed on immunity grounds. Having had notice of the
lawsuit, the Executive Branch’s silence on the immunity arguments is, in itself, a meaningful
statement. While we believe that the government’s silence is intentional, plaintiffs ask that a
decision on this issue be deferred in order to provide the Executive Branch an opportunity to
submit a statement of interest regarding the defendants’ immunity arguments.
IV.

THE PLAINTIFFS MUST BE AFFORDED LIMITED JURISDICTIONAL
DISCOVERY ON THE SOVEREIGN IMMUNITY DEFENSE

In a motion to dismiss for lack of subject matter jurisdiction on sovereign immunity
grounds, the defendant has the burden of making a “prima facie case that it is a foreign
sovereign.” Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir. 2002)
(internal quotation marks omitted.) Only if the defendant makes its prima facie case does the
plaintiff have any burden of presenting evidence that immunity should not be granted. Cargill
Intern. S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993). The defendant always
bears the “ultimate burden of persuasion” on immunity, which must be satisfied by a
preponderance of the evidence. Id. at 1016 (quoting Robinson v. Government of Malaysia, 269
F.3d 133, 141 (2d Cir. 2001) (internal quotation marks omitted.))
16 

When determining whether the defendant has met its burden, the court “must review the
allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and – if
the plaintiff comes forward with sufficient evidence to carry its burden of production on this
issue – resolve disputed issues of fact, with the defendant foreign sovereign shouldering the
burden of persuasion.” Robinson, 269 F.3d at 141. The district court’s decision on jurisdiction is
not coterminous with a decision on the merits and “jurisdiction is not defeated by the possibility
that the averments might fail to state a cause of action.” Id. (quoting Bell v. Hood, 327 U.S. 678,
682 (1946)).
A. There Are Genuine Questions as to Whether the ISI is a Political Subdivision of the
Government of Pakistan for FSIA Purposes
In determining whether a party is a “state” for purposes of the Foreign Sovereign
Immunity Act, the Second Circuit “has limited the definition … to entities that have a defined
territory and a permanent population, that are under the control of their own government, and
that engage in, or have the capacity to engage in, formal relations with other such entities.”
Klinghoffer, 937 F.2d at 47 (internal brackets and quotation marks omitted) (emphasis added).
The political subdivision analysis is, thus, concerned not only with the institutional design of the
entity asserting immunity, but also the reality of the political relationship. Only entities under
the actual control of the government are true political subdivisions or agencies entitled to share
the immunity granted to the state. See Compagnie Noga D’Importation et D’Exportation, S.A. v.
Russian Federation, 361 F.3d 676, 687 – 88 (2d Cir. 2004) (in arbitration enforcement case, if a
judgment would be against the state and the state’s purported political subdivision’s assets are
not separate from the state’s assets, then the subdivision “is not a legal person separate from the
state[.]”)

17 

On all questions, the party asserting immunity bears not only the burden of making a
prima facie case that it is a political subdivision but also the burden “of producing evidence to
establish its claim of sovereign immunity.” Outbound Maritime Corp. v. P.T. Indonesian
Consortium of Const. Industries, 575 F.Supp. 1222, 1224 (S.D.N.Y. 1983) (single affidavit from
officer of defendant and a translated government proclamation insufficient to establish sovereign
immunity.) Evidence “merely stat[ing] in conclusory terms that” the defendant’s status entitles it
to immunity does not satisfy that burden. Id.; see also Emarat Maritime LLC v. Shandong Yantai
Marine Shipping, 2009 WL 1024317, *2 (S.D.N.Y. April 15, 2009) (defendant’s “[d]eclaration
is insufficient to make out a prima facie claim of sovereign immunity … because [the
declarant’s] conclusory statement does not provide the Court with a sufficient legal basis or
analysis to determine whether [the defendant] is in fact and at law entitled to sovereign
immunity”) (internal quotation marks and citation omitted).
“[G]enerally a plaintiff may be allowed limited discovery with respect to the
jurisdictional issue [in actions where the FSIA applies.]” First City, Texas Houston, N.A. v.
Rahdain Bank, 150 F.3d 172, 176 – 177 (2d Cir. 1998); see also Filus v. LOT Polish Airlines,
907 F.2d 1328, 1332 (2d Cir. 1990); City of New York v. Permanent Mission of India to United
Nations, 376 F.Supp. 429, 431 (S.D.N.Y. 2005) (denying FSIA dismissal following jurisdictional
discovery), aff’d, 446 F.3d 365 (2d Cir. 2006), aff’d and remanded, 551 U.S. 193 (2007).
Refusal to do so when the non-movant has identified specific facts and questions undermining
the jurisdictional defense constitutes an abuse of a court’s discretion. See First City, TexasHouston, N.A., 150 F.3d at 177 (reversing dismissal because district court refused to allow
plaintiff to take any jurisdictional discovery on FSIA immunity argument against Iraqi bank);
Ehrenfeld v. Mahfouz, 489 F.3d 542, 550 n. 6 (2d cir. 2007) (“forbidding jurisdictional discovery
18 

any time a plaintiff does not make a prima facie showing of jurisdiction … would indeed be legal
error.”)
In this case, plaintiffs have shown a reasonable basis for the assertion of this court’s
jurisdiction over the claims and multiple facts warrant jurisdictional discovery, both as to the
legal architecture purportedly establishing and governing the ISI as well as to the facts regarding
its relationship to or autonomy from the Government of Pakistan
First, the declarant upon whom the moving defendants rely in order to make their prima
facie case that the ISI is a political subdivision has made contradictory statements in other court
proceedings. Plaintiffs are in the process of obtaining official copies of those statements, which
this Court should consider prior to reaching a decision here. Further, given that the contradictory
statements challenge the credibility of the declarant, plaintiffs should be provided an opportunity
to depose Mr. ul Haq on the statements he makes in his declaration.
Second, other official representatives of the Government of Pakistan have also made
statements in Pakistani court proceedings concerning the creation and functioning of the ISI that
call into question whether the ISI is, in fact, a political subdivision of the Pakistani state or is
instead an autonomous organization not entitled to invoke the protections of the FSIA. In 2006,
the Sindh High Court held a hearing on claims that the ISI had wrongfully abducted several
Pakistani citizens for interrogation. See Kreindler Aff., ¶ 7. Lieutenant Colonel Khalid Iqbal
Sahoo, then an Assistant Judge Advocate General of the Pakistan Army, filed a brief on behalf of
the Pakistani Ministry of Defence in that case on July 11, 2006 in which he stated that Pakistan’s
Ministry of Defence has no operational control over the ISI. Id. On July 19, 2006, Pakistan’s
then-Defence Secretary, Tariq Ghazi, also filed an affidavit in that action in which he, like Lt.
Col. Sahoo, asserted that the Government of Pakistan has no control over the ISI. Id., ¶ 8.
19 

Plaintiffs are making efforts to obtain those documents, which the Court should examine before
reaching a decision.
Third, the single document upon which the moving defendants rely in arguing that the ISI
is a political subdivision of the Pakistani state is of questionable probity. The document is a
substantially redacted, translated copy of a letter by a person named R. Milory Hayes (listed as a
deputy secretary to the Government of Pakistan) purporting to establish the ISI under the
Ministry of Defence. Four of the letter’s six paragraphs have been omitted. The document’s
original language is not identified. And, according to publicly available reports, the July 2006
Ministry of Defence brief submitted to the Pakistan Supreme Court contradicts the movant’s
exhibit, instead asserting that the Ministry of Defence has no control over the ISI. In light of
these conflicting statements, plaintiffs cannot be required to take upon faith that this one-half
page document is what the defendants assert it to be. Instead, plaintiffs should be given access to
an unredacted document in the original language to review and have translated, as well as be
given an opportunity to conduct discovery – including further time to complete their efforts to
obtain official transcripts of Mr. ul Haq’s contradictory statements – that would test the accuracy
of the letter’s assertions.
Finally, in addition to the materials submitted in court proceedings in Pakistan, an array
of other statements and facts in the public record (though not yet in admissible form) raise
questions as to whether the ISI is operating pursuant to its own interests and undermining,
thwarting and subverting the goals and directives of the Government of Pakistan. See Kreindler
Decl., ¶¶ 10(a) – 11(p).

20 

These questions merit additional investigation through discovery and other means to
explore whether the ISI is “under the control of [its] own government” and further warrant
deferral of a decision on the pending motion.
B. A Decision on Immunity for Pasha and Taj is Premature
There is no question that defendants Pasha and Taj are not entitled to immunity from suit
under the FSIA. As the Supreme Court recently held in Samantar v. Yousef, 130 S.Ct. 2278
(2010), the Foreign Sovereign Immunity Act “no longer protects government officials[.]”
Carpenter v. Chile, 610 F.3d 776, 780 (2d Cir. 2010) (acknowledging abrogation of In re
Terrorist Attacks on Sept. 11, 2001). The only conceivable basis for immunity that the
individual defendants could invoke, therefore, is under the common law.11
As the Second Circuit has noted, in the absence of an applicable statute regarding
immunity, the courts “deferred to the decisions of the political branches – in particular, those of
the Executive Branch – on whether to take jurisdiction over actions against” foreign defendants.
Mater v. Dichter, 563 F.3d 9, 13 (2d Cir. 2009) (crediting statements of interest Department of
State and Department of Justice filed in affirming dismissal). Thus, here, only if the government
files a statement of interest asserting that defendants Pasha and Taj are entitled to immunity from
suit should this action against them be dismissed. See id.
In addition, if this Court concludes that the ISI is not entitled to immunity because it is
not a political subdivision of a foreign state, then defendants Pasha and Taj, whose defenses are
linked directly to those of the ISI, would also not be entitled to immunity. Thus, for the same

11

Certainly, if the ISI is not entitled to immunity under the FSIA, then defendants Pasha and Taj
cannot invoke such protections under the common law by relying on an argument that they were
sued for their acts undertaken in their “official capacity,” for if the ISI was acting ultra vires,
then so, necessarily, were its leaders.

21 

reasons that the decision regarding the ISI must be deferred to allow for discovery, so must the
decision regarding Pasha and Taj.
As for the direct involvement of Pasha and Taj in the attacks, plaintiffs have alleged that
those defendants participated in the planning and execution of the Mumbai assault. In addition
to the allegations in the complaint, which, at this stage, must be accepted as true, further
evidence, as discussed in Section II.B., supra, supports the claims that Pasha and Taj were
intimately involved in the assault in Mumbai. As set forth above, given the many ISI official
involved with Headley and the geographic scope of the training and planning for the attack –
which took place in Pakistan’s tribal areas, Lahore and Karachi – it could not have been
organized and executed without the knowledge and participation of the organization’s highestlevel leadership.13 This, too, warrants additional discovery.  
V.

THIS ACTION IS FULLY JUSTICIABLE

Adjudicating claims that the ISI was directly implicated in the Mumbai attacks does not
involve the Court in United States-Pakistan foreign relations and does not require it to judicially
designate the Government of Pakistan as a state supporter of terrorism. See Def. Memo., p. 20.
The plaintiffs do not charge that the Government of Pakistan supports terrorism, but, rather, that
an autonomous, rogue organization operating contrary to the directives and goals of the Pakistan
state has committed acts of terror that have killed and injured United States citizens.
In this respect, plaintiffs claims are substantially similar to those presented by the federal
government in the recent Rana criminal prosecution. In Rana, the Department of Justice
presented much of the same evidence and theories that plaintiffs intend to rely on in this action.

13

Senior ISI officers have likewise been implicated in coordination with terrorist groups
disavowed by Pakistan’s government. See Kreindler Decl., ¶ 11(p), Exhibit HH.
22 

Consistent with the Department of Justice’s arguments, plaintiffs seek to establish that the ISI
was directly involved in the Mumbai attacks. As the federal government has sought to have such
matters litigated in the court system, judicial resolution of plaintiffs’ claims here cannot
reasonably be said to threaten United States foreign policy or political considerations. This
lawsuit, like the Rana prosecution, is not a “political” matter that must be kept out of the courts.
And in light of the inference reasonably drawn from the Rana trial (as well as government’s
silence to date in this litigation) that the Executive Branch does not see this case as barred by the
political question doctrine, if this Court does not deny the motion to dismiss in this regard, it
should, at the very least, defer a decision to allow the federal government a chance to rebut
plaintiffs’ argument on this issue.
i.

This Case Does Not Present a Political Question

Plaintiffs’ claims arise out of the wrongful deaths and injuries to United States citizens
and residents. A determination on the merits on the liability and damages questions posed by
these lawsuits is expressly authorized by the Legislative and Executive Branches and thus this
case is fully justiciable.
Ben Zion Chroman, Gavriel Noah Holtzberg, Moshe Holtzberg (Gavriel’s two year old
son) and Norma Shvarzblat-Rabinovich were all in the Chabad House in Mumbai, India on
November 26, 2008 when terrorists targeted, approached and attacked that facility, using
firearms, bombs and other explosive devices. They killed, among five others, Chroman, Gavriel
Noah Holtzberg and left Moshe Holtzberg, a witness to the murder of both of his parents,
wounded. Sandeep Jeswani, Andreina Varagona, Alan Scherr and Alan’s 13 year old daughter
Naomi Scherr were all at the Oberoi-Trident Hotel on November 26, 2008 when the terrorists
targeted, approached and attacked the hotel. As with the Chabad House, the terrorists took over
23 

the Oberoi-Trident and held its residents captive for two days. During the siege, Jeswani, Alan
Scherr and Naomi Scherr were killed; Varagona, a witness to the deaths of the Scherrs, was
seriously wounded.
Plaintiffs filed suit to recover for the losses they suffered as a result of the deaths
and injuries inflicted by the defendants. The question presented in these cases is whether
the defendants are liable in under 18 U.S.C. § 2333, the common law and supplemental
causes of action for the harm caused by the specific attacks on November 28, 2006. This
Court is thus “faced with an ordinary tort suit, alleging that the defendants breached a
duty of care owed to the plaintiffs or their decedents … .” Klinghoffer, 937 F.2d at 49
(suit against foreign entitiesnot barred by the political question doctrine). 14
The “nonjurisdictional, prudential doctrine” of political questions, Kadic v. Karadzic, 70
F.3d at 249, is grounded in the concept that when a representative of the Executive Branch is
engaged in a purely discretionary matter, “nothing can be more perfectly clear than that their acts
are only politically examinable.” Marbury v. Madison, 1 Cranch 137, 166 (1803). “In such cases
… whatever opinions may be entertained of the manner in which executive discretion may be
used, still there exists, and can exist, no power to control that discretion. The subjects are

14

Unlike these wrongful death and personal injury claims, the cases upon which the moving
defendants rely all required the courts to become involved in quintessentially foreign policy
decisions. See Schneider v. Kissinger, 412 F.3d 190 (D.C.Cir 2005) (suit against the United
States Government and its National Security Advisor for their role in Chilean politics was
intertwined with Cold War decision-making and thus could not be adjudicated); Haig v. Agee,
453 U.S. 280 (1981) (issue of whether Department of State was entitled to revoke United States
citizen’s passport was a political question); Aktepe v. United States, 105 F.3d 1400, 1404 (11th
Cir. 1997) (suit challenging safety of United States and NATO training exercises was nonjusticiable because it “would require a court to interject itself into military decisionmaking and
foreign policy”); Mater v. Dichter, 500 F.Supp.2d 284 (S.D.N.Y. 2007) (action raised questions
about Israel’s supposed “targeted killing” military policy); Doe I v. Israel, 400 F.Supp.2d 86
(D.D.C. 2005) (plaintiffs sued Israel and Israeli officials, alleging that the country’s policy
regarding the West Bank amounted to human rights violations).
24 

political.” Id. It is only those “political acts,” however, that “can never be examinable by the
courts.” Id. “The fact that the issues before [the court] arise in a politically charged context does
not convert what is essentially an ordinary tort suit into a non-justiciable political question.”
Klinghoffer, 937 F.2d at 49. Courts must be mindful that the doctrine “is one of ‘political
questions,’ not one of ‘political cases.’” Klinghoffer, 937 F.2d at 49, quoting Baker v. Carr, 369
U.S. 186, 217 (1962).
The moving defendants argue that the war in Afghanistan, Pakistan’s role as a United
States ally in that effort and other aspects of the United States-Pakistan relationship render this
tort suit non-justiciable on political question grounds. The exhibits to the declaration of Kevin J.
Walsh all concern the structure and governance of the Islamic Republic of Pakistan and its
foreign policy relationship with the United States and have no bearing on whether this particular
case improperly impinges on the prerogatives of the political branches. Indeed, nowhere have
the defendants presented any statement from any government representative of the United States
that this lawsuit poses any threat to those relations. As discussed above, in reaching a decision
as to whether a case poses a non-justiciable question reserved to the political branches, the
opinion of that branch of government whose interest is supposedly threatened is a critical issue.
Here, the Executive Branch has not made any such statement.
Not only has the Executive Branch submitted no statement of interest urging dismissal on
political question grounds here, but recent events offer strong evidence that the United States
Government is not worried about the foreign policy implications of this lawsuit. Just one week
prior to the defendants’ serving their moving papers in this case, the President of the United
States authorized a military strike inside Pakistan’s borders targeting Osama bin Laden’s
hideout. See Kreindler Decl., ¶ 21. On May 2, 2011, about two dozen Navy Seals and Central
25 

Intelligence Agency operatives surreptitiously entered Pakistani territory, infiltrated a compound
in Abbottabad, Pakistan, about 30 miles northeast of the nation’s capital, and killed Osama bin
Laden, who had been living there. Id.
Following this action, President Obama, in a press conference, explained that, beginning
in August 2010, he had
met repeatedly with my national security team as we developed more information
about the possibility that we had located bin Laden hiding within a compound
deep inside of Pakistan. … Today, at my direction, the United States launched a
targeted operation against that compound in Abbottabad, Pakistan.
Id., ¶ 21, Exhibit PP, Remarks of President Obama. The United States Government undertook
this operation without any prior warning to or approval from the Pakistan Government. Id., ¶ 21,
Exhibit QQ, Brennan Statement. As White House Counterterrorism Advisor John Brennan
publicly stated, “We didn’t contact the Pakistanis until after all of our people, all of our aircraft
were out of Pakistani airspace. [The Pakistanis] had no idea about who might have been on [our
aircraft].” Id.
The United States Government’s recent actions with respect to Pakistan – conducting
clandestine military actions inside its borders without advising the state’s leaders – would surely
present more of a challenge to the political relationship between these two nations than does a
wrongful death and personal injury lawsuit. The defendants here can point to no actual threat to
foreign relations posed by this lawsuit that this Court must endeavor to avoid. They cite no
specific diplomatic impediment the lawsuit imposes, and instead allege that the plaintiffs’ action
will involve an inquiry of the “highest delicacy,” while then simply referring to the political
history between the United States and Pakistan. Def. Memo., pp. 18 – 20.

26 

ii.

Under the Baker v. Carr Test, this Case is Justiciable

Even under the moving defendants’ theory that this litigation touches on foreign
relations, which, as an ordinary tort action it does not, that, alone is not sufficient to warrant
dismissal. “[I]t is error to suppose that every case or controversy which touches foreign relations
lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. at 211; see also Japan Whaling Ass’n
v. Am. Cetacean Soc’y, 478 U.S. 221, 230-31 (1986) (allowing lawsuit to force Secretary of
Commerce to declare Japan in violation of international whaling agreement); Comm. of United
States Citizens Living in Nicaragua, 859 F.2d 929, 934 (D.C.Cir.1988) (finding “troubling” the
district court refusal to adjudicate claim of infringement of personal and property rights of
United States citizens resulting from United States funding of Nicaraguan Contras).
As the Second Circuit has emphasized, “judges should not reflexively invoke the
[political question] doctrine[] to avoid difficult and somewhat sensitive decisions … .”
Whiteman, 431 F.3d at 69 (plaintiffs seeking reparations from Austrian entities for Nazi-era
injuries were barred from suit when the United States Government had negotiated a claims
process with Austria and filed a statement of interest urging the court to dismiss the claims).
Under the “case-by-case” inquiry that must be employed, an action is nonjusticiable on political
question grounds only if it involves one or more of the following factors:
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question
Baker v. Carr, 369 U.S. at 217.
27 

While no one factor is dispositive, “the first … is of particular importance.” Klinghoffer,
937 F.2d at 49, quoting Goldwater v. Carter, 444 U.S. 996, 1006 (1979) (Brennan, J.,
dissenting); see also 767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of
Yugoslavia, 218 F.3d 152, 160 (2d Cir.2000) (the first factor, i.e., “textually demonstrable
constitutional commitment of the issue to a coordinate political department,” is the paramount
concern) (citing Lamont v. Woods, 948 F.2d 825, 831 (2d Cir.1991)).
The first Baker factor does not require dismissal here. Plaintiffs have filed wrongful
death and personal injury lawsuits. They do not challenge any political, military or foreign
policy act or relationship. Rather, their actions present this Court “with an ordinary tort suit,
alleging that the defendants breached a duty of care owed to the plaintiffs or their decedents.
The department to whom this issue has been ‘constitutionally committed’ is none other than …
the Judiciary.” Klinghoffer, 937 F.2d at 49.
As for the second factor, the common law of tort provides clear and well-settled rules on
which this Court can easily rely and thus that factor’s underlying concern – the absence of
“judicially discoverable and manageable standards” – is of no moment. Klinghoffer, 937 F.2d at
49; see also Biton v. Palestinian Interim Self-Gov't Auth., 412 F.Supp.2d 1, 6 (D.D.C.2005)
(“Biton II”) (noting that “the ATA provides jurisdiction for suits in federal courts, the basic
elements of the claim lies in tort, not in the relations between Palestine and Israel.”)
The political branches have spoken to the other four Baker questions by enacting
legislation that allows plaintiffs to pursue actions against terrorists in federal courts, and thus
none of those factors should prevent this Court from reaching the merits of the plaintiffs’ claims
here. See Sokolow v. Palestinian Liberation Organization, 583 F.Supp.2d 451, 456 (S.D.N.Y.
2008) (“By enacting the [Antiterrorism Act] both the Executive and Legislative Branches have
28 

expressly endorsed the concept of suing terrorist[s] in federal court”) (internal quotation marks
omitted), citing Klinghoffer, 937 F.2d at 49. If, as plaintiffs contend, the moving defendants are
not entitled to sovereign immunity, then the political question doctrine can present no bar to
adjudication of their claims. “After all, Congress enacted the” legislation upon which plaintiffs’
claims are based “and the President signed it.” Ungar v. Palestinian Liberation Org., 402 F.3d
274, 280 (1st Cir. 2005). The very purpose of these laws was to provide redress to victims of
terrorism. Only if the moving defendants are entitled to immunity may the claims against them
be dismissed. Congress and the President have spoken – without sovereign immunity, tort
claims arising out of terrorist acts in other countries that injure United States citizens are fully
justiciable.
CONCLUSION
For all of the foregoing reasons, plaintiffs respectfully request that this Court (1) defer a
decision on the motion to dismiss on foreign sovereign immunity grounds in order to provide the
United States a chance to submit a Statement of Interest and to allow the plaintiffs to conduct
limited jurisdictional discovery and (2) deny defendants’ motion to dismiss on political question
grounds.
Dated: New York, New York
July 6, 2011

KREINDLER & KREINDLER
_____/s/_____________
James P. Kreindler (JK7084)
750 Third Avenue
New York, NY 10017-5590
[phone]
[phone] (Fax)
-- and -THE SILVERMAN LAW FIRM
16 Squadron Boulevard
New City, NY 10956 
29