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

Filing 16

AFFIDAVIT/DECLARATION in Opposition re 12 MOTION to Dismiss for Lack of Jurisdiction Declaration of James Kreindler filed by All Plaintiffs. (Attachments: # 1 Exhibit A to the Declaration of James Kreindler, # 2 Exhibit B to the Declaration of James Kreindler, # 3 Exhibit C to the Declaration of James Kreindler, # 4 Exhibit D to the Declaration of James Kreindler, # 5 Exhibit E to the Declaration of James Kreindler, # 6 Exhibit F to the Declaration of James Kreindler, # 7 Exhibit G to the Declaration of James Kreindler, # 8 Exhibit H to the Declaration of James Kreindler, # 9 Exhibit I to the Declaration of James Kreindler, # 10 Exhibit J to the Declaration of James Kreindler, # 11 Exhibit K to the Declaration of James Kreindler, # 12 Exhibit L to the Declaration of James Kreindler, # 13 Exhibit M to the Declaration of James Kreindler, # 14 Exhibit N to the Declaration of James Kreindler, # 15 Exhibit O to the Declaration of James Kreindler, # 16 Exhibit P to the Declaration of James Kreindler, # 17 Exhibit Q to the Declaration of James Kreindler, # 18 Exhibit R to the Declaration of James Kreindler, # 19 Exhibit S to the Declaration of James Kreindler, # 20 Exhibit T to the Declaration of James Kreindler, # 21 Exhibit U to the Declaration of James Kreindler, # 22 Exhibit V to the Declaration of James Kreindler, # 23 Exhibit W to the Declaration of James Kreindler, # 24 Exhibit X to the Declaration of James Kreindler, # 25 Exhibit Y to the Declaration of James Kreindler, # 26 Exhibit Z to the Declaration of James Kreindler, # 27 Exhibit AA to the Declaration of James Kreindler, # 28 Exhibit BB to the Declaration of James Kreindler, # 29 Exhibit CC to the Declaration of James Kreindler, # 30 Exhibit DD to the Declaration of James Kreindler, # 31 Exhibit EE to the Declaration of James Kreindler, # 32 Exhibit FF to the Declaration of James Kreindler, # 33 Exhibit GG to the Declaration of James Kreindler, # 34 Exhibit HH to the Declaration of James Kreindler, # 35 Exhibit II to the Declaration of James Kreindler, # 36 Exhibit JJ to the Declaration of James Kreindler, # 37 Exhibit KK to the Declaration of James Kreindler, # 38 Exhibit LL to the Declaration of James Kreindler, # 39 Exhibit MM to the Declaration of James Kreindler, # 40 Exhibit NN to the Declaration of James Kreindler, # 41 Exhibit OO to the Declaration of James Kreindler, # 42 Exhibit PP to the Declaration of James Kreindler, # 43 Exhibit QQ to the Declaration of James Kreindler, # 44 Exhibit RR to the Declaration of James Kreindler) (Walsh, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

DECLARATION OF JAMES P.
KREINDLER IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
MOTION TO DISMISS AND
REQUEST FOR
JURISDICTIONAL DISCOVERY

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.
DECLARATION OF JAMES P. KREINDLER
James P. Kreindler, Esq. an attorney duly admitted to the practice of law in New York
and before this court, declares under penalty of perjury that:
1.

I am an attorney duly licensed to practice law under and by virtue of the laws of

the State of New York and in the Eastern District of New York and represent all plaintiffs in
these consolidated actions.
2.

I am submitting this declaration in support of plaintiffs’ opposition to the motion

to dismiss filed by defendants Inter-Services Intelligence (“ISI”), Ahmed Shuja Pasha (“Pasha”)
and Nadeem Taj (“Taj”).
3.

I have spoken with senior staff members of the State Department and the United

States Senate regarding this litigation and have advised them of the claims plaintiffs are making
1

against the ISI, Pasha and Taj. To date, the United States Government has not submitted a
statement of interest regarding the political question or immunity issues raised by those three
defendants.
4.

The moving defendants have submitted a declaration from Pakistan’s Attorney

General, who included with his declaration a document in translation (with no indication of its
original language) bearing no official seal or other proof of authenticity. Plaintiffs have not had
the opportunity to depose the declarant or to test the credibility and veracity of the document
upon which the moving defendants rely in asserting that the ISI is a legitimate political
subdivision of the Government of Pakistan.
Evidence Raises Questions as to Whether the ISI is
a Political Subdivision of the Pakistani State
5.

During a hearing in Pakistan arising out of a constitutional petition filed by family

members of 11 people allegedly abducted by the ISI, Maulvi Anwar ul Haq, the Attorney
General of Pakistan (and the declarant upon whom defendants rely in their moving papers here),
informed the Chief Justice of the Supreme Court of Pakistan in November 2010 that there is no
legislative statute or executive order that created the ISI. See Umer Farooq, Revealing the Secret,
THE DAWN, Jan. 24, 2011, http://www.dawn.com/2011/01/24/revealing-the-secret.html, a true
and accurate copy of which is attached hereto as Exhibit A (“Revealing the Secret”); Nasir Iqbal,
No Laws to Govern Spy Agencies, SC Told, THE DAWN, Nov. 26, 2010,
http://www.dawn.com/2010/11/26/no-laws-to-govern-spy-agencies-sc-told.html, a true and
accurate copy of which is attached hereto as Exhibit B (“No Laws”). In the January 24, 2011
article, Mr. ul Haq is reported as having represented to the Supreme Court that no legal
instrument supports the creation or functioning of the ISI. See Exhibit A, Revealing the Secret.
In the November 26, 2010 piece, Mr. ul Haq is said to have conceded to the court that there were
2

no rules or laws that governed the ISI. See Exhibit B, No Laws. Plaintiffs are making efforts to
obtain the official records and/or transcripts of the November 2010 Pakistan Supreme Court
hearing and Mr. ul Haq’s sworn statements to the Pakistani court.
6.

Attorney General ul Haq’s November 2010 statement is consistent with questions

previously raised by members of the Supreme Court of Pakistan, in which individual justices
probed as to what law, if any, the ISI had been created under. See Ardeshir Cowasjee, We Never
Learn From History - 6, THE DAWN, Aug. 5, 2007,
http://archives.dawn.com/weekly/cowas/20070508.htm, a true and accurate copy of which is
attached hereto as Exhibit C (“We Never Learn From History”). Plaintiffs are making efforts to
obtain the records and/or transcripts of the proceeding reported in that article.
7.

In a human rights petition relating to the alleged abduction of six people by the

ISI filed in the Sindh High Court in Karachi, Pakistan in 2006, Lieutenant Colonel Khalid Iqbal
Sahoo, then the Assistant Judge Advocate General of the Pakistan Army, filed a brief on behalf
of the Pakistan Ministry of Defence. In that July 11, 2006 brief, Lt. Col. Sahoo stated that
Pakistan’s Ministry of Defence has no operational control over the ISI. See No Operational
Control Over ISI and MI, Defence Ministry Tells Court, THE DAWN, July 12, 2006,
http://archives.dawn.com/2006/07/12/top3.htm, a true and accurate copy of which is attached
hereto as Exhibit D. Plaintiffs are making efforts to obtain the brief the Ministry of Defence
filed in that proceeding.
8.

In the same proceeding, on July 19, 2006, Pakistan’s then-Defence Secretary,

Tariq Waseem Ghazi, filed an affidavit in which he, like Lt. Col. Sahoo, asserted that the
Government of Pakistan has no control over the ISI. See We Have No Control Over ISI, EXPRESS
INDIA, July 20, 2006, http://www.expressindia.com/news/fullstory.php?newsid=71367, a true

3

and accurate copy of which is attached hereto as Exhibit E. Plaintiffs are making efforts to
obtain Secretary Ghazi’s affidavit.
The ISI is Not Under the Control of the Government of Pakistan and it Has Acted to
Undermine, Thwart and Subvert the Legitimate Government
9.

In addition to the materials submitted in court proceedings in Pakistan, set forth

above, 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 autonomously and pursuant to its own
interests, and undermining, thwarting and subverting the goals and directives of the Government
of Pakistan. Those questions merit additional investigation through discovery and other means.
10.

Publicly available information warranting discovery includes the following:
a. A United States Department of Defense Joint Task Force-Guantanamo
Assessment dated June 17, 2005 states that “[r]ogue factions of the ISID have
routinely pursued private interests and acted against the stated policy of the
Government of Pakistan.” See Joint-Task Force-Guantanamo Detainee
Assessment (“JTF-Guantanamo Assessment”), a true and accurate copy of which
is attached hereto as Exhibit F.1
b. In 2008, according to public statements by Pakistan’s Prime Minister, as
confirmed by United States Department of State cable communications, 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. A true and accurate copy of the July 26, 2008 Government of Pakistan
Press Release is attached hereto as Exhibit G; a true and accurate copy of the
March 3, 2009 United States Department of State Cable “Scenesetter for FBI
Director Mueller” is attached hereto as Exhibit H. 2

1

The copy of the JTF-Guantanamo Detainee Assessment plaintiffs currently have in their
possession was disseminated by Wikileaks. Plaintiffs have submitted a request to the Office of
the Secretary of Defense pursuant to the Freedom of Information Act to obtain an official version
of that document. As soon as they are provided the official document, they will submit it to the
Court and distribute it to all parties.
2

All Department of State cables cited herein were obtained via Wikileaks. Plaintiffs have made
requests pursuant to the Freedom of Information Act to the Department of State and the
Department of Defense for official versions of these materials. As soon as those documents are
received, plaintiffs will submit them to the Court and serve them on all parties.
4

c. According to Hussain Haqqani, a former advisor to three different Pakistani Prime
Ministers (Benazir Bhutto, Nawaz Sharif and Ghulam Jatoi) and currently the
Pakistani Ambassador to the United States,3 the ISI has thwarted the aims and
goals of the legitimate Pakistani government for decades. In 2005, the Carnegie
Endowment for Peace published Mr. Haqqani’s book “Pakistan: Between Mosque
and Military,” in which he stated that the ISI manipulated the Pakistani elections
of 1977, 1988, 1990, 1997, and 2002. See HUSSAIN HAQQANI, PAKISTAN:
BETWEEN MOSQUE AND MILITARY 382 (Carnegie Endowment for Peace 2005)
(“BETWEEN MOSQUE AND MILITARY”), of which true and accurate copies of
excerpts are attached hereto as Exhibit J. According to Mr. Haqqani, the ISI
repeatedly “clearly violated the law by using the military to influence
parliamentary elections[.]” Id., p. 279. Plaintiffs will seek to depose and/or serve
interrogatories on Ambassador Haqqani.
d. Benazir Bhutto was twice elected Prime Minister of Pakistan, once in 1988 and
again in 1993. According to Ms. Bhutto, Ramzi Yousef, a long-time associate of
the ISI, with the support and encouragement of the ISI, unsuccessfully attempted
to assassinate Ms. Bhutto in the 1990’s, admitting that “[w]e had [Prime Minister
Benazir Bhutto] right in our sights, but the weapons didn’t arrive on time.” See
BENAZIR BHUTTO, DAUGHTER OF THE EAST 411 – 413 (Pocket Books 2008), of
which true and accurate copies of excerpts are attached hereto as Exhibit K. Mr.
Yousef is currently serving a life sentence in the United States Bureau of Prisons
Administrative Maximum Security Prison in Florence, Colorado for his role in the
1993 World Trade Center attack. Plaintiffs will seek to depose or serve
interrogatories on Mr. Yousef regarding his relationship with the ISI and its
efforts to assassinate Pakistan’s elected leaders.
e. While running for Prime Minister again in 2007, Benazir Bhutto was assassinated.
The United Nations Secretary General subsequently appointed a Commission of
Inquiry to investigate Ms. Bhutto’s assassination. The United Nations
Commission was severely hampered by the ISI, “which impeded an unfettered
search for the truth.” See U.N. SECRETARY-GENERAL, Comm’n of Inquiry, Report
of the Inquiry Into the Death and Circumstances of the Assassination of Former
Pakistani Prime Minister Mohtarma Benazir Bhutto (“U.N. Report on Bhutto
Assassination”), April 15, 2010, pp. 3, 63, a true and accurate copy of which is
attached hereto as Exhibit L. The ISI went so far as to conduct “parallel
investigations, gathering evidence and detaining suspects. Evidence gathered from
such parallel investigations was selectively shared with the police” at the direction
of the ISI. Id., p. 63.
f. After its investigation into the Bhutto assassination, the United Nations
Commission stated that it had received credible information regarding the ISI’s
systematic wire-tapping of legitimate politicians, government officials, journalists
3

Mr. Haqqani’s biography is available for review at www.husainhaqqani.com/detailbio.html. A
true and accurate copy of that biography is attached hereto as Exhibit I. 
5

and social activists. See id., p. 59. “These activities are not authorized or
overseen by judicial authorities and are not in keeping with the operations of such
agencies in a democratic society. . . This pervasive involvement of intelligence
agencies in diverse spheres, which is an open secret, has undermined the rule of
law, distorted civilian – military relations and weakened some political and law
enforcement institutions. At the same time, it has contributed to wide-spread
public distrust in those institutions and fed a generalized political culture that
thrives on competing conspiracy theories.” Id., pp. 59-60. Plaintiffs will seek to
depose or serve interrogatories on the members of the United Nations
Commission regarding their knowledge of the ISI.
g. Ms. Sherry Rehman, a member of the Pakistan National Assembly who became
the Pakistan Minister of Information in 2008, has written that the “inter-services
intelligence agencies remain above the law and unaccountable.” See Sherry
Rehman, Enigma of the Defence Budget, THE DAWN, June 16, 2005,
http://archives.dawn.com/2005/06/16/op.htm, a true and accurate copy of which is
attached hereto as Exhibit M. Ms. Rehman also stated that the ISI uses “secret
funds and ghost bank accounts to destabilize civilian political parties and their
governments.” Id. Ms. Rehman specifically identified a scandal involving the
Mehran Bank as “an example of such financial corruption, when bribes worth …
14 million [Rupees] were unearthed as paid out by the ISI to manipulate the 1990
elections, a fact which was admitted in court by General Aslam Beg, the former
[Chief of Army Services].” Id. Plaintiffs will seek to serve interrogatories on Ms.
Rehman and are making efforts to obtain the transcript or other records of the
court proceedings in which General Beg made the statements cited by Ms.
Rehman.
h. United States officials have also made public and private statements expressing
concerns about the ISI’s extra-governmental conduct over the last two decades.
Secretary of State James Baker sent a letter to Pakistani Prime Minister Nawaz
Sharif in 1992 that Ambassador Haqqani read. See Exh. J, BETWEEN MOSQUE
AND MILITARY, p. 294. Mr. Haqqani reported that Secretary Baker wrote “[the
United States has] information indicating that [the ISI] and others intend to
continue to provide material support to groups that have engaged in terrorism.” Id.
Following up on the Secretary Baker letter, United States Ambassador to Pakistan
James Platt wrote to Prime Minister Sharif in May 1992 that he was very
confident that the ISI was “supporting Kashmiri and Sikh militants who carry out
acts of terrorism. . . . This support takes the form of providing weapons, training,
and assistance in infiltration. . . . There is no doubt in our mind about this. . . . Our
information is certain. It does not come from the Indian government.” Id., pp. 294
– 295.
i. Bruce Riedel, at the request of President Obama, served recently as the
chairperson of an interagency review of policy for Afghanistan and Pakistan and
is currently a senior fellow at the Brookings Institution. He was also an adviser to
Presidents George W. Bush, Bill Clinton and George H.W. Bush, as well as a CIA
6

officer with substantial experience in the region and information about the
political relationships in Pakistan.4 Mr. Riedel recently wrote that the ISI’s
conduct does not “implicate” the Pakistani civilian government. See Bruce Riedel,
On the Line, TABLET MAGAZINE, June 27, 2011, http://www.tabletmag.com/newsand-politics/70968/on-the-line (“On the Line”), a true and accurate copy of which
is attached hereto as Exhibit O.
j. Classified United States intelligence obtained by The New York Times “show[s]
that senior officials of the … [ISI] directed the attack on” and killing of
investigative journalist Saleem Shahzad, whose tortured body was recovered last
month after he went missing on May 29, 2011. See Jane Perlez and Eric Schmitt,
Pakistan’s Spies Tied to Slaying of a Journalist, THE NEW YORK TIMES, at A1,
July 5, 2011, a true and accurate copy of which is attached hereto as Exhibit P. In
light of the furor over rumors of the ISI’s involvement in Shahzad’s death, the
Government of Pakistan has convened an investigation into the matter. Id.
The Relationship Among the ISI, Lashkar-e-Taiba, Osama bin Laden and Al Qaeda
11.

As with the information raising troubling questions about the authority and

legitimacy of the ISI, a variety of information, though not presently in admissible form, also
illuminates the relationship among the ISI, Lashkar-e-Taiba (“LeT”), Osama bin Laden (indicted
on federal criminal charges and on the United States’ top ten most wanted list, see Exhibits Q
and R hereto, true and accurate copies of excerpts from the bin Laden indictment and the Federal
Bureau of Investigation’s fugitive notice) and Al Qaeda (designated as a terrorist organization by
the United States Department of State 1999, see Exhibit S hereto, a true and accurate copy of that
designation). For example:
a. According to Bruce Riedel, LeT was originally a vehicle for turning young
Kashmiri men into fighters in the anti-Soviet war in Afghanistan. See BRUCE
RIEDEL, THE SEARCH FOR AL QAEDA 43 (Brookings Institution Press 2008) (“THE
SEARCH FOR AL QAEDA”), of which true and accurate copies of excerpts are
attached hereto as Exhibit T. By the early 1990’s with the withdrawal of the
Soviet Army from Afghanistan, the ISI refocused LeT’s activities on the disputed
region of Kashmir. Id.
4

Mr. Riedel’s biography, experience and background are available for review at
www.brookings.edu/experts/riedelb.aspx, a true and accurate copy of which is attached hereto as
Exhibit N.
7

b. Mr. Riedel explains that “Osama (Bin Laden) … worked with the ISI in the
creation of a key Kashmiri jihadist group in the late 1980’s, the [LeT] … [The]
ISI played a key role in LeT’s creation, supplemented by Osama’s donation of
$200,000, almost certainly with the ISI’s encouragement.” See Exh. T, THE
SEARCH FOR AL QAEDA, p. 43. The ISI thereafter asked bin Laden to assist in
overthrowing the democratic government of Pakistan. See Exh. K, DAUGHTER OF
THE EAST, p. 405.
c. Between 1991 and 1996, when bin Laden was in Sudan, the ISI maintained its
relationship with him and, according to the 9/11 Commission, at the time bin
Laden and al Qaeda returned to Afghanistan from Sudan, the ISI “probably had
advance knowledge of his coming, and its officers may have facilitated his
travel.” See National Commission on Terrorist Attacks upon the United States,
The 9/11 Commission Report, p. 64 (2004), of which true and accurate copies of
excerpts are attached hereto as Exhibit U. The ISI then continued their oversight
of and assistance to bin Laden, reportedly introducing him “to Taliban leaders in
Kandahar.” Id., pp. 64 – 65. The ISI’s objectives in setting up these meetings was
to convince the Taliban to allow bin Laden to reestablish control over his former
training camps in the hope that bin Laden would make the camps available to ISI
“for training Kashmiri militants.” Id.
d. The United States designated the LeT a Foreign Terrorist Organization pursuant
to Section 219 of the Immigration and Naturalization Act (8 U.S.C. § 1189) on
December 26, 2001. See Office of the Coordinator for Counterterrorism;
Designation of Foreign Terrorist Organizations, 66 Fed. Reg. 247,66492 (Dec. 26,
2001), a true and accurate copy of which is attached hereto as Exhibit V. The
Department of the Treasury designated LeT as a “specially designated global
terrorist” entity pursuant to 31 C.F.R. 595 and 31 C.F.R. 596 on December 20,
2001. A true and accurate copy of that designation is attached hereto as Exhibit
W.
e. General Pervez Musharraf of Pakistan outlawed LeT on January 12, 2002 and
shortly after doing so ordered the arrest of LeT’s leader, Hafiz Mohamed Saeed.
See Exh. J, BETWEEN MOSQUE AND MILITARY, p. 303. Thereafter, the ISI ensured
that Mr. Saeed was released from custody. “It was clear that the ISI was not keen
to offend its jihadi partners by keeping them in prison for too long.” Id. The ISI
then made financial payoffs to LeT through Mr. Saeed, after which LeT went
dormant for a short period. Id., p. 306.
f. In 2002, Jack Straw, the Foreign Secretary of the United Kingdom, in an address
to Parliament stated that “[a] number of these terrorist organizations including
[LeT] . . .have been at the forefront of violent activity in the region. India has
long charged that such terrorism has had the covert support . . . of the main
intelligence agency in Pakistan, the Inter Services Intelligence Directorate, the
ISID. Her Majesty’s Government accepts that there is a clear link between the
8

ISID and those groups.” See Exhibit X, a true and accurate copy of Secretary Jack
Straw’s statements in Parliament on June 10, 2001.
g. In its report regarding the Benazir Bhutto assassination, the United Nations noted
that “Lashkar e Taiba … has close ties with the ISI.” Exh. L, U.N. Report on
Bhutto Assassination, p. 49.
h. Individual operatives for the LeT have confirmed this relationship. David Hicks,
a Guantanamo detainee now released to Australia, said that the ISI controlled the
infiltration of LeT terrorists into the Indian controlled section of Kashmir. A true
and accurate copy of United States Army Brigadier General Jay W. Hood’s report
concerning David Hicks is attached hereto as Exhibit Y. Brigadier General
Hood’s report states that the “Inter-Service Intelligence Directorate (ISID)
control[ed] the number of troops in Kashmir,” and also that the “Inter-Service
Intelligence Directorate … has strong ties with the LeT in regard to insertion
tactics into Kashmir.” See id., p. 2.
i. Another Guantanamo detainee, Wali Mohammed Saraf, facilitated money
transfers for Al Qaeda weapons purchases and terrorist operations, some of which
were done with the assistance and support of the ISI. A true and accurate copy of
Untied States Rear Admiral D.M. Thomas Jr.’s report concerning Wali
Mohammed Saraf is attached hereto as Exhibit Z (“Rear Admiral Thomas
Report”). Rear Admiral Thomas’s report finds that, at the direction of bin Laden,
“In March 2000, and with ISI[]’s assistance, detainee facilitated the financing for
the purchase of shoulder-fired surface-to-air missiles … for fighters in Chechnya.
… . Two ISI[] officers … supported … efforts to purchase [missile] systems for
al-Qaida. The ISI[] support included providing a subsidy of $4,000 US for each
[missile] purchased from suppliers in Afghanistan and Pakistan. [The detainee’s
associate] had previously purchased over 180 weapons for al-Qaida with the
assistance of the ISI[].” Id., pp. 2, 6, 7.
j. In a document produced to assist Guantanamo investigators, titled Joint Task
Force-Guantanamo Matrix of Threat Indicators for Enemy Combatants, the ISI is
contained in “a list of terrorist and terrorist support entities identified as associate
forces. . . . Through associations with these groups and organizations, a detainee
may have provided support to al-Qaida or the Taliban, or engaged in hostilities
against US or Coalition forces.” A true and accurate copy of the Joint Task ForceGuantanamo Matrix of Threat Indicators for Enemy Combatants is attached
hereto as Exhibit AA (“JTF-Guantanamo Threat Matrix).5
5

The copy of the JTF-Guantanamo Threat Matrix plaintiffs currently have in their possession
was disseminated by Wikileaks. Plaintiffs have submitted a request to the Office of the Secretary
of Defense pursuant to the Freedom of Information Act to obtain an official version of that
document. On June 23, 2011, the Office of the Secretary of Defense asked for additional
information in order to process the request. As soon as they are provided the official document,
they will submit it to the Court and to all parties. 
9

k. In 2008, the NATO Commander in Afghanistan, United States General David D.
McKiernan, told reporters that “[t]here certainly is a level of ISI complicity in the
militant areas in Pakistan and organizations such as the Taliban.” See Exhibit BB,
a true and accurate copy of the article appearing in Agence-France Press on
August 10, 2008 (“Pakistan intelligence helping Taliban: NATO general”).
l. On November 30, 2008, the United States Ambassador to Pakistan, Anne
Patterson wrote to Secretary of State Hilary Clinton, noting the troubling “extent
of [Lashkar-e-Taiba’s] current relationship with ISI.” See Exhibit CC, a true and
accurate copy of the November 30, 2008 United States Department of State Cable
“Zardari Promises to Send an ISI Director to India” (“Zardari Promises Cable.”)
Ambassador Patterson later wrote that “[t]he Mumbai attacks were masterminded
by LeT operatives and they continue to focus on militancy against India. The
group was created and trained by Pakistani intelligence services to fight a proxy
war against India.” See Exhibit DD, a true and accurate copy of the October 23,
2009 United States Department of State Cable “Extremism in Southern Punjab
and Northern Sindh.” She had also, earlier, said it was not clear that Pakistani
government leaders had “the power to force ISI to take action” regarding Lashkare-Taiba’s activities inside Pakistan borders. Exh. CC, Zardari Promises Cable.
m. The United States Special Representative on Afghanistan and Pakistan, Richard
Holbrooke, met with Indian government representatives in February 2010. The
United States Ambassador to India, Timothy J. Roemer, attended that meeting and
wrote of it in a cable, noting that Holbroke pressed Pakistan to take action against
the ISI and that Holbrooke “assessed that the civilian government in Pakistan had
a limited capacity to take such steps.” See Exhibit EE, a true and accurate copy of
the February 1, 2009 United States Department of State Cable “SRAP Holbrooke
Meets Indian External Affairs Minister Krishna.”
n. Recently, David Headley testified under oath for the United States Government as
a cooperating witness in the prosecution of Tahawwur Rana. During that
testimony, Mr. Headley said that after training with LeT for some time, he
travelled to the Pakistani tribal territories in the summer of 2006. See Exhibit FF,
attached hereto, a true and accurate copy of excerpts from Mr. Headley’s trial
testimony, United States v. Rana, 09-cr-830 (N.D.Ill. 2011) (“Headley
Testimony”), p. 671 – 73. After being stopped and detained first by ISI Major
Ali, Mr. Headley was introduced to Major Iqbal, who was represented to be a
member of the ISI. Id., pp. 95, 674 – 75. Over the next three years, Mr. Headley
received training from the ISI on over 50 occassions. Id., p. 677. That training
was provided by, among others, Major Iqbal and a number of other ISI noncommissioned officers. Id., p. 676 (“Q: In fact, [the ISI] kind of took off – took up
where LeT had let off, correct? A: Yes.”)
o. The New York Times published an article on June 24, 2011 on the information
recovered from a cellular telephone seized during the raid of bin Laden’s
10

Abbottabad, Pakistan compound. In that article, two sources, described as a
“militant commander” and a “senior fighter,” both of whom “have received
support from the ISI for years,” were reported as having said “they were
convinced that the ISI played a part in sheltering Bin Laden.” See Carlotta Gall,
Pir Zubair Shah and Eric Schmitt, Seized Phone Offers Clues to Bin Laden’s
Pakistani Links, THE NEW YORK TIMES, June 24, 2011, at A1, a true and accurate
copy of which is attached hereto as Exhibit GG.
p. In another New York Times report, several retired high-level officers of the ISI
have been named as having participated in meetings with militant groups
disfavored or outlawed by the Government of Pakistan. See Carlotta Gall,
Pakistani Military Still Cultivates Militant Groups, Former Fighter Says, THE
NEW YORK TIMES, July 3, 2011, at A4, a true and accurate copy of which is
attached hereto as Exhibit HH.
Evidence Proferred by the United States Government Confirms Plaintiffs’ Allegations that
the ISI was Involved in the Mumbai Attacks
12.

Information both in admissible and non-admissible form reveals the extent of the

ISI’s involvement with the Mumbai attacks.
13.

During grand jury proceedings, David Headley testified under oath 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.” United States v. Rana, 09-cr-830, docket entry
no. 197, slip op. at 3 - 4 (N.D.Ill. April 1, 2011), a true and accurate copy of which is attached
hereto as Exhibit II.
14.

Later, during the Rana criminal trial in the United States District Court for the

Northern District of Illinois, Headley testified that the ISI trained him to go into India on secret
missions, including in preparation for the Mumbai attacks. See Exh. FF, Headley Testimony, p.
681. Mr. Headley also stated that in 2006 his ISI handlers provided him with funding in order to
open a cover business in Mumbai called First World Immigration. Id., pp. 689, 141. Headley
testified that his first contact with the ISI was with non-moving defendant Major Ali, who then
turned him over to Major Iqbal. Once Mr. Headley was settled in Mumbai, his training with the
ISI continued. Id., pp. 732 – 33. The ISI training Mr. Headley received was specifically tailored
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to what the ISI wanted him to do in Mumbai. Id., p. 733. That training included looking for a
landing site into Mumbai as well as an escape route. Id., p. 733 – 34. Mr. Headley would return
to Pakistan in order to brief his ISI handler, Major Iqbal, on the preparation work in Mumbai and
provide him with copies of video surveillance from Mumbai. Id., p. 744. It was Major Iqbal who
selected the Chabad House as one of the targets. Id., pp. 280 – 281. The debriefings in
anticipation of the Mumbai attack between Headley and the ISI members would take place in the
ISI’s safehouse in Lahore, Pakistan. Id., pp. 745 – 746. Headley, though directed by ISI Major
Iqbal, also worked with numerous low-level ISI members. Id., pp. 676 – 677. Plaintiffs will seek
to depose Mr. Headley regarding the ISI’s involvement in the Mumbai attacks as well as any
information he has regarding whether the ISI was operating without the consent and knowledge
of the Pakistani government.
15.

According to the information provided by the United States Department of Justice

in the Santiago proffer filed in anticipation of Mr. Headley’s testimony, Mr. Headley met with
Major Iqbal, his ISI handler in November 2007, during which meeting the handler told Headley
that once the Mumbai attacks were complete, “he wanted Headley to travel to Delhi, India, to
perform surveillance of military facilities, again using an office of First World Immigration as a
his cover.” See United States v. Rana, 09-cr-830 (N.D.Ill. April 11, 2011), Docket Entry No.
199, p. 27, a true and accurate copy of which is attached hereto as Exhibit JJ. The United States
Government has also asserted that Mr. Headley, after completing surveillance activities in
Mumbai, returned to Pakistan to report to his ISI handler about his discussions with “Lashkar
regarding the planning of and preparation for the attacks.” Id., p. 28.
16.

According to an indictment unsealed in the Federal District Court for the Northern

District of Illinois on April 21, 2011, a grand jury has indicted Major Iqbal, Mr. Headley’s ISI

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handler, in relation to his role in the Mumbai terror attacks. See United States v. Kashmiri et al.,
09-cr-830 (N.D.Ill. April 11, 2011), docket entry number 213. A true and accurate copy of that
indictment is attached hereto as Exhibit KK. Plaintiffs will seek to depose or serve
interrogatories on Major Iqbal, if and when he is found.
17.

Following the Mumbai attack, the Indian government conducted an 18 month

investigation. Indian Home Secretary G.K. Pillai announced the investigation’s findings in a
journalists’ forum, stating that the ISI had been “literally controlling and coordinating the
[Mumbai] attack from beginning to end.” See The ISI didn’t just play a peripheral role in the
26/11 attacks, INDIAN EXPRESS, July 14, 2010, http://www.indianexpress.com/storyprint/647705, a true and accurate copy of which is attached hereto as Exhibit LL.
18.

As part of its investigation, the Indian National Investigation Agency interrogated

David C. Headley and the agency’s report on the interrogation implicated several leaders of the
ISI in the Mumbai attacks. A true and accurate copy of excerpts of the Indian National
Investigation Agency Report on the Interrogation of David C. Headley (“NIA Headley Report”)
are attached hereto as Exhibit MM. For example, defendant Zaki ur Rehman, a high-ranking
member of the LeT, was assigned Brigadier Riyaz as an ISI handler for purposes of planning and
executing the Mumbai attack. See id., p. 5. Additionally, ISI Colonel Shah established and
oversaw the Karachi safehouse, from which the attacks on India were planned and launched. Id.,
p. 6. ISI Colonel Hamza was defendant ISI Major Iqbal’s superior. See id., p. 9. Plaintiffs will
seek to serve interrogatories on Indian officials involved in the NIA investigation into the
Mumbai attacks.
19.

According to the United States Ambassador to Pakistan, Anne Patterson, the

Mumbai attacks “exposed the fruits of previous ISI policy to create Lashkar-e-Taiba and still

13

threatens potential conflict between nuclear powers.” See Exhibit NN, a true and accurate copy
of the February 19, 2009 United States Department of State Cable “Scenesetter for General
Kayani’s Visit to Washington.”
20.

A year after the Mumbai attacks, Secretary of State Hillary Clinton was still

complaining that “some officials from the Pakistan’s Inter-Services Intelligence Directorate (ISI)
continue to maintain ties with a wide array of extremist organizations, in particular the Taliban,
LeT and other extremist organizations.” See Exhibit OO, a true and accurate copy of the
December 30, 2009 United States Department of State Cable “Terrorist Finance: Action Request
for Senior Level Engagement on Terrorism Finance.”
The Discovery of bin Laden In Abbottabad, Pakistan
21.

On May 1, 2011, the President of the United States announced that he had

authorized a military strike inside Pakistan’s borders targeting Osama bin Laden’s hideout. See
Exhibit PP hereto, a true and accurate copy President Barack Obama’s Remarks issued on May
2, 2011. Two dozen Navy Seals and Central Intelligence Agency operatives surreptitiously
entered Pakistani territory, infiltrated a compound in Abbottabad, Pakistan and killed Osama bin
Laden, who had been living there. Id. President Obama explained that prior to the strike, 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.” Id.
The United States Government undertook this operation without any prior warning to or
approval from the Pakistan Government. See id. 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

14

have been on [our aircraft].” See Exhibit QQ, a true and accurate copy of White House
Counterterrorism Advisor John Brennan’s statements.
22.

In light of the apprehension of bin Laden, 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.” See
Exhibit RR, a true and accurate copy of excerpts from Senator Coons’s May 6, 2011 remarks.
This Motion Should be Deferred (1) to Allow Plaintiffs to
Conduct Jurisdictional Discovery; and (2) to Allow the Executive
Branch an Opportunity to Submit a Statement of Interest
23.

As set forth in the accompanying memorandum of law, this Court should deny

defendants’ political question dismissal motion or, at the least, defer a decision on it. As for the
immunity arguments, the moving defendants have submitted documentary evidence that
plaintiffs have not had the opportunity to test. Statements by, among others, the moving
defendants’ declarant Attorney General ul Haq warrant additional inquiry into the creation and
operation of the ISI and whether it is a legitimate political subdivision. Until plaintiffs have an
opportunity to pursue discovery on these issues, dismissal on FSIA or common law immunity
grounds is unwarranted.
24.

I have met with high-ranking officials in the Executive and Legislative Branches

to discuss this litigation and advised them of plaintiffs’ position. I have advised those officials
that if the United States Government states to plaintiffs and to this Court that these lawsuits
against defendants ISI, Pasha and Taj hinder United States foreign policy toward Pakistan, we
would dismiss against those defendants. I have also informed those officials that we are seeking
the same compensation -- $10 million per death and $3 million per injury – that was received by
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the 270 Pan Am 103 plaintiffs and all United States plaintiffs with suits against Libya under the
2008 Libyan Claims Resolution Act. I have informed Kevin Walsh, defendants’ counsel of those
communications.

Dated: July 6, 2011
New York, New York

/s/
James P. Kreindler

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