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

Filing 17

REPLY in Support re 12 MOTION to Dismiss for Lack of Jurisdiction Reply Memorandum of Law filed by Inter-Services Intelligence of the Islamic Republic of Pakistan, Ahmed Shuja Pasha, Nadeem Taj. (Attachments: # 1 Certificate of Service for ISI Defendants' Reply Papers) (Walsh, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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Plaintiff,
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SHIMON ROSENBERG et al.,

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Plaintiff,
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LASHKAR-E-TAIBA et al.,
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Defendants.
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1:10-cv-05381
Served on July 29, 2011

KIA SCHERR, Individually, and as Personal
Representative of the Estates of Naomi Scherr and
Alan Scherr,

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LASHKAR-E-TAIBA et al.,
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Defendants.
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EMUNAH CHROMAN, Individually, and as
Personal Representative of the Estate of Ben Zion
Chroman,
Plaintiff,

1:10-cv-05382

1:10-cv-05448

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION TO DISMISS OF DEFENDANTS INTER-SERVICES INTELLIGENCE
DIRECTORATE OF THE ISLAMIC REPUBLIC OF PAKISTAN,
AHMED SHUJA PASHA AND NADEEM TAJ

TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
I.

THE FSIA IS THE EXCLUSIVE BASIS FOR JURISDICTION OVER THE ISI:
NO EXCEPTION HAS BEEN SHOWN AND DISMISSAL IS REQUIRED ...................4
A.

ISI is a Subdivision of the Government of Pakistan: the Facts are
Uncontested..............................................................................................................4

B.

No Exception Has Been Shown ...............................................................................7

II.

THE DIRECTOR GENERAL DEFENDANTS ARE PLAINLY SUED FOR
ACTS TAKEN IN THEIR OFFICIAL CAPACITY: THEY ARE
ACCORDINGLY IMMUNE UNDER WELL SETTLED PRINCIPLES OF
COMMON LAW OFFICIAL IMMUNITY ........................................................................9

III.

PLAINTIFFS SEEK TO HAVE THIS COURT DECIDE A POLITICAL
QUESTION: THIS CASE IS NOT JUSTICIABLE..........................................................10

IV.

NO DISCOVERY IS REQUIRED AND NONE SHOULD BE ALLOWED ..................11

V.

DEFENDANTS HAVE NO OBJECTION TO SEEKING THE VIEWS OF THE
DEPARTMENT OF STATE, WITH AN APPROPRIATE STAY, BUT
BELIEVE THIS COURT MAY DECIDE THIS MOTION NOW ...................................14

i

TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005) ...................................................................................................15
Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428 (1989) ...............................................................................................................7, 9
Baker v. Carr,
369 U.S. 186 (1961) ...........................................................................................................11, 15
Belhas v. Ya’alon,
466 F. Supp. 2d 127, 132 (D.D.C. 2006), aff’d. 515 F.3d 1279 (D.C. Cir. 2008) ...................13
Burger-Fischer v. Degussa AG,
65 F. Supp. 2d 248 (D.N.J. 1999) ............................................................................................14
Cargill Int’l S.A. v. M/T Pavel Dybenko,
991 F.2d 1012 (2d Cir. 1993)...................................................................................................12
Carpenter v. Republic of Chile,
610 F.3d 776 (2d Cir. 2010).......................................................................................................9
Compagnie Noga D’Emportation et D’Exportation, S.A. v. Russian Federation,
361 F.3d 676 (2d Cir. 2004)...........................................................................................6, 13, 15
Doe I v. State of Israel,
400 F.Supp. 2d 86 (D.D.C. 2005) ........................................................................................9, 13
Emarat Maritime LLC v. Shadong Yantai Marine Shipping,
No. 08-CV-6520 (RMB), 2009 WL 1024317 (S.D.N.Y. April 15, 2009)...............................12
Garb v. Republic of Poland,
440 F.3d 579 (2d Cir. 2006)...........................................................................................8, 12, 13
Gross v. German Foundation Indus. Initiative,
456 F.3d 363 (3rd Cir. 2006) ...................................................................................................15
In re Papandreou,
139 F.3d 247 (D.C. Cir. 1998) .................................................................................................13
Iwanowa v. Ford Motor Co.,
67 F.Supp. 2d 424 (D.N.J. 1999) .............................................................................................14

ii

Jazini v. Nissan Motor Co., Ltd.,
148 F.3d 181 (2d. Cir. 1998)....................................................................................................12
Klinghoffer v. S.N.C. Achille Lauro,
937 F.2d 44 (2d Cir. 1991).....................................................................................................7, 8
Matar v. Dichter,
500 F.Supp. 2d 284, aff’d 563 F.3d 9 (2d Cir. 2009).........................................................12, 13
Outbound Marine Corp., v. P.T. Indosenian Consortium of Const. Industries,
575 F. Supp. 1222 (S.D.N.Y. 1983).........................................................................................12
Roeder v. Islamic Republic of Iran,
333 F.3d 228 (D.C. Cir. 2003) .................................................................................................13
Samantar v. Yousuf,
130 S. Ct. 2278 (2010) .....................................................................................................2, 6, 14
Smith v. Socialist People’s Libyan Arab Jamahiriya,
101 F.3d 239 (2d Cir. 1996).......................................................................................................9
Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148 (D.C. Cir. 1994) ...........................................................................................6, 8, 15
Ungaro-Benages v. Dresdner Bank AG,
No. 01-2547-CIV, 2003 WL 25729923 (S.D. Fl. 2003) ..........................................................14
Verlinden B.V. v. Cent Bank of Nigeria,
461 U.S. 480 (1983) ...................................................................................................................7
FEDERAL STATUTES
22 U.S.C. §8401(10) ........................................................................................................................6
22 U.S.C. §8402(5) ..........................................................................................................................6
22 U.S.C. §8402(7) ..........................................................................................................................6
22 U.S.C. §8423(c)(2) ......................................................................................................................6
28 U.S.C. §1602 .............................................................................................................................14
28 U.S.C. §1603(a) ..........................................................................................................................8
28 U.S.C. §1604 .......................................................................................................................11, 12
28 U.S.C. §1605 ...............................................................................................................................7
28 U.S.C. §1605A ........................................................................................................................1, 7

iii

28 U.S.C. §1605A(a)(2)(A)(i)(I) .....................................................................................................1
F.R.C.P. 19(a)(1)(B) ........................................................................................................................6

iv

Defendants, Inter-Services Intelligence Directorate of the Islamic Republic of
Pakistan (“ISI”), Ahmed Shuja Pasha and Nadeem Taj (“Director General Defendants”),
submit this reply memorandum in further support of their motion for dismissal.
PRELIMINARY STATEMENT
The Complaints allege that ISI:
“carr[ied] out intelligence gathering and operations domestically and
internationally on behalf of the military of the Islamic Republic of Pakistan.”
(Compl. ¶ 11)(emphasis added).
The alleged basis for subject matter jurisdiction over ISI, as part of a foreign sovereign,
was 28 U.S.C. §1605A, a statutory exception to FSIA immunity which allows jurisdiction for
claims against a foreign state which engages in terrorism. (Id. at ¶ 17). But the §1605A
exception applies only if “the foreign state was designated [by the Executive] as a state sponsor
of terrorism”, 28 U.S.C. §1605A(a)(2)(A)(i)(I) – and Pakistan has never been so designated.
Facing this (insurmountable) problem, Plaintiffs in their opposition abandon the effort to
show a statutory exception to the FSIA and instead assert that this Court should conduct an
investigation into the operation of Pakistan’s government – and allow Plaintiffs to conduct far
ranging discovery – to support a finding that ISI is not “under the control of [its] own
government” (Opposition Brief (“Opp. Br.”) at 17, 21). This, Plaintiffs contend, would allow this
Court to strip immunity from part of the Government of Pakistan and exercise jurisdiction.
This is a request for a new, judicially-established, non-statutory exception to the FSIA,
under which the Court would investigate and examine the operations of the foreign sovereign
and decide whether there was a basis for denying immunity to certain governmental operations
of the foreign sovereign. There is no precedent, in any case, for a threshold requirement that a
sovereign must somehow prove “control” of part of itself. To the contrary, courts have

1

consistently rejected plaintiffs’ efforts to end run the FSIA and have repeatedly held that
jurisdiction over a foreign sovereign lies only if an exception to the FSIA applies and plaintiff
has carried its burden of proving it. Plaintiffs have now conceded that they cannot do so.
Leaving aside the conflict with the FSIA, Plaintiffs’ theory is a fabulous exercise in
unreality. Plaintiffs allege that ISI carries out intelligence operations “on behalf of the military
of the Islamic Republic of Pakistan” (Compl. ¶ 11). Pakistan has appeared and claimed
immunity. The Government of the United States has consistently dealt with and treated both ISI
and the military of the Islamic Republic of Pakistan as legitimate parts of the recognized
government of Pakistan. U.S. law in fact defines ISI as part of the “security forces of Pakistan”.
All of the news reports, leaked cables and confidential documents submitted with Plaintiffs’
opposition do not and cannot contest the legitimate status of the Government of Pakistan and ISI
as part of that government. Indeed, “ISI” is not a separate legal entity – it is part of the
Federation of Pakistan – and these cases are claims against the Federation of Pakistan.
Because Plaintiffs have not and cannot prove a statutory exception to FSIA, there is no
basis for their demand for wide and intrusive discovery which would purportedly explore “the
legal architecture … establishing and governing the ISI as well as…the facts regarding its
relationship to or autonomy from the Government of Pakistan.” (Opp. Br. at 19). Jurisdictional
discovery is routinely denied when a plaintiff has no hope of proving facts which might support
jurisdiction. Additionally, here, the proposed discovery, involving the entire history of
Pakistan’s statehood, would in itself constitute a violation of Pakistan’s sovereignty.
As for the Director General Defendants, Plaintiffs concede that if ISI is immune, the
Director Generals are as well, and argue only that a decision on this issue should be deferred.
Under Samantar v. Yousuf, 130 S. Ct. 2278 (2010), this Court is specifically empowered to find

2

common law official immunity, based on standards previously set by the State Department. The
Director General Defendants are named solely based on acts that are alleged to be undertaken as
officials of ISI: immunity is appropriate. (Defendant’s Moving Brief (“Def. Br.”) at 15-18).
With respect to political question, Defendants’ moving papers established that: (1) it is
the considered policy of the United States that Pakistan is a critical war time ally of the United
States; (2) support of the current, democratically elected government of Pakistan1 is key to that
policy; (3) Plaintiffs’ claims that Pakistan orchestrates terrorism squarely conflict with that
policy; and (4) Plaintiffs’ claims, which in effect require a finding that Pakistan is a state
supporter of terrorism, present an inherently non-justiciable “political question” and moreover,
one which is specifically delegated to the Executive under the Enhanced Partnership with
Pakistan Act, the FSIA, and federal statutes referenced therein. (Def. Br. at 23-25). Plaintiffs
make no effort to contest any of those points, but instead suggest that: (1) hearing these cases
would be less intrusive then sending helicopters into Pakistan to kill Osama Bin Laden (Opp. Br.
at 25-26); and (2) the Government’s recent criminal prosecution against a Canadian, U.S.
resident, Tahawwur Rana, for aiding the Mumbai attack, indicates that the United States
Government supports Plaintiffs’ claims. (Opp. Br. at 22-23). With respect to the “less than Bin
Laden helicopters” argument, either the cases involve a non-justiciable issue or they do not.
Whether the U.S., for extraordinary reasons, violated Pakistan’s sovereignty in the Bin Laden
case is irrelevant and, in an event, that was clearly a political decision, made by the Executive,
with consideration of alternatves and consequences. This Court may not engage in similar
balancing analysis: it may not decide political questions which involving foreign affairs. With

1

One reason for the current U.S. policy is that the current Government of Pakistan is in power as a result of
elections in 2008, generally labeled as the first fair elections since a military coup in 1999 which had resulted in
General Pervez Musharraf coming to power. (May 6, 2011 Declaration of Kevin J. Walsh (“Walsh 5/6 Decl.”), Ex.
A, State Background Note at 7-8).

3

respect to the Rana prosecution, this was not a prosecution of the ISI and, as noted in
Defendants’ moving papers, despite having David Headley (principal prosecution witness in the
Rana trial) in custody since October 2009, with full access to whatever he has to say about ISI,
the United States has never declared Pakistan a “state sponsor of terrorism”. The Rana
prosecution proves nothing.2
Finally, if there was any doubt that this case poses a political question, Plaintiffs’
formulation of their proposed threshold issue on sovereign immunity removes it. Plaintiffs assert
that to prove their case (and get around the FSIA) they will prove that ISI is “not a true political
subdivision of Pakistan but, rather, an autonomous organization…” (Opp. Br. at 7, 20). The
efficacy of Pakistan’s democracy is clearly a non-justiciable issue.
I.
THE FSIA IS THE EXCLUSIVE BASIS FOR JURISDICTION OVER THE ISI: NO
EXCEPTION HAS BEEN SHOWN AND DISMISSAL IS REQUIRED
A.

ISI is a Subdivision of the Government of Pakistan: the Facts are Uncontested
Defendants move for dismissal on the basis of a declaration, submitted under penalty of

perjury, from the Attorney General of Pakistan. The Declaration established that:
•

ISI is an intelligence agency of Pakistan.

•

It is not a separate legal entity, but rather exists under the law of
Pakistan as part of the federal government of Pakistan.

•

ISI employees are either military officers or employees of the
Ministry of Defense.

•

ISI is funded by the Government of Pakistan.

•

The Director General is appointed by the Prime Minster.

•

ISI does not engage in commercial activities of any kind.

2

In fact, the jury apparently did not credit Mr. Headley’s testimony regarding the Mumbai attack, and found
Rana not guilty of involvement in it. See Exhibit AL of the Declaration of Defendants’ counsel, Kevin J. Walsh
(“Walsh 7/29 Decl.”), submitted herewith in response to the documents appended to Plaintiffs’ opposition.

4

Declaration of Maulvi ul Haq (“ul Haq Decl.”) at ¶¶ 3, 4. Attached to the Declaration is Ministry
of Defence letter No 16292/JS/Secy/2010, confirming that ISI is under the supervision of the
Ministry of Defence and attaching an extract from another Ministry of Defence letter, No
2722/123/JL(X), dated 2 September 1948, confirming that: “an overall inter Services Intelligence
organization for the Armed Forces of Pakistan has now been established under the Ministry of
Defence”. Plaintiffs have not and cannot contest any of these specific facts.3
Instead, Plaintiffs submit newspaper reports regarding a November 2010 hearing before
the Supreme Court of Pakistan at which, according to Plaintiffs, the Attorney General of Pakistan
told the Court that “no rules or laws govern the ISI”. (Opp. Br. at 5). This is labeled as a
“contradictory statement [which] challenge[s] the credibility of declarant [the Attorney general
of Pakistan]” so that Plaintiffs “should be allowed to depose Mr. ul Haq”. (Id. at 19). But
Plaintiffs failed to discover – or advise the Court – that the final Order of the Supreme Court in
that case specifically confirmed that the law and Constitution of Pakistan applies to all branches
of the Government, including the military and ISI:
[W]e are of the opinion that the actions of the Pakistan Army or any of their
functionaries including I.S.I. are subject to Constitution and law. There was no
need of creating such expression because these authorities had also been offering
explanation before the various forums in respect of different cases. Be that as it
may, as now the expression has been dispelled and all these authorities are subject
to Constitution and law...
(Walsh 7/29 Decl., Ex. AI). The Order also references and includes a statement from counsel for
the Federation of Pakistan, so affirming. In short, there is no “contradictory statement” which

3

Plaintiffs have argued the “probity” of the 1948 letter, which was submitted as a certified re-typed
“extract”. (Opp. Br. at 20). Defendants have submitted a redacted copy of the physical copy maintained in the files
of the Ministry of Defense. (See Walsh 7/29 Decl., Ex. AH). The Walsh 7/29 Declaration also provides records of a
proceeding in the Supreme Court of Pakistan, described in Plaintiffs’ opposition as evidencing “contradictory
statements” by the Attorney General and responds to certain of the documents submitted as part of the opposition.

5

could justify a deposition.4
In light of Plaintiffs’ current position, which concedes (as it must) Pakistan’s sovereignty,
but nonetheless argues that the Court may exercise jurisdiction over ISI, the statement in Mr. ul
Haq’s Declaration – that ISI “is not a separate corporate entity” (Id. at ¶3) – is significant. There
is no separate entity, “ISI”, to be sued. It is a subdivision of the Federation of Pakistan (the
federal government of Pakistan) and, if a judgment were ever to be rendered in this case, the
assets for payment would be those of the Federation. The Federation is the sovereign and ISI is
indistinguishable from the Federation. See discussion in Compagnie Noga D’Emportation et
D’Exportation, S.A. v. Russian Federation, 361 F.3d 676, 687-90 (2d Cir. 2004)(citing
Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C. Cir. 1994)) and
concluding: “no meaningful distinction can be drawn between a sovereign and one of its political
organs”. Id. at 688. Plaintiffs’ claims are against the Federation of Pakistan – indisputably a
state with FSIA immunity.5
Further, ISI is statutorily defined under U.S. law as part of the “security forces of
Pakistan”. Enhanced Pakistan with Pakistan Act of 2009, 22 U.S.C. §8401(10). The Act
specifically recognizes that several thousand “civilians and members of the security forces of
Pakistan” have been killed in “the struggle against al Qaeda”, 22 U.S.C §§8402(5),
(7)(emphasis added), and imposes on the Executive a duty to monitor the activities of ISI. 22
U.S.C. §8423(c)(2). And, the U.S. Government has long treated both the military of Pakistan

4

Even the newspaper reports attached to Mr. Kreindler’s Declaration (“Kreindler Decl.”) reflect that civil
litigants in Pakistan may file claims against the Federation of Pakistan asserting improper actions by government
intelligence agencies. This is a recognized, functioning, democratic government. (See Kreindler Decl., Exs. A, B, C,
D, E and Walsh 7/29 Decl. at ¶ 8-10 and Ex. AI).
5
As this case is presently configured, it is also dismissible for lack of an indispensable party, (the Federation
of Pakistan) under Rule 19(a)(1)(B). See Samantar, 130 S. Ct. at 2292 (regarding dismissal when a plaintiff seeks to
end run the FSIA by naming officials, but not the sovereign). Here, Plaintiffs have named a subdivision of the
sovereign, but simply assert it is not really part of the sovereign.

6

and ISI – and their officials – as legitimate representatives of the state of Pakistan. (See, e.g.,
Kreindler Decl., Exs. H ,CC, NN; Walsh 7/29 Decl., Exs. AN, AO, AR, AT). Plaintiffs’ claim
that this Court should investigate and declare ISI not part of the state of Pakistan, and therefore
assert jurisdiction, is inconsistent with reality and legally unsupportable.
B.

No Exception Has Been Shown
Because ISI is a foreign state, as that term is defined in the FSIA, the FSIA is the

exclusive source of jurisdiction for U.S. courts. Argentine Republic v. Amerada Hess Shipping
Corp. 488 U.S. 428, 443 (1989). The Federation of Pakistan/ISI is immune and remains so
unless one of the specific statutory exceptions – listed in 28 U.S.C. §1605 – applies. Verlinden
B.V. v. Cent Bank of Nigeria, 461 U.S. 480, 493 (1983).
Plaintiffs initially pled the terrorism exception, added to the FSIA in 1996 precisely to
permit civil actions against foreign states which support terrorism (after modification in 2008,
codified as 28 U.S.C. § 1605A) (Compl., ¶17), but have now abandoned that argument.
Instead, Plaintiffs seek to create a new, non-statutory exception, asserting that the FSIA
applies only to entities that “are under the control of their own government” (Opp. Br. at 17).
Plaintiffs cite, in support of the proposition that this Court should conduct a proceeding to
evaluate “control”, Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991). But
Klinghoffer in no way supports such a court-created abrogation of FSIA. In Klinghoffer, the
PLO, then a political organization which controlled no territory and no population, attempted to
claim state status (and immunity) based on its “political and governmental character and
structure, its commitment to and practice of its own statehood, and its unlisted and
indeterminable membership”. Id. at 47. In response, the Second Circuit held (not surprinsigly)
that a “state” needs to have actual control of a territory and population.

7

…this court has limited the definition
territory and a permanent population
government, and that engage in, or
relations with other such entities.”…It
those requirements.

of “state” to “entities that have a defined
that are under the control of their own
have the capacity to engage in, formal
is quite clear that the PLO meets none of

Id. (quotes and ellipses omitted). The Court observed:
The PLO is also unable to demonstrate that the State of Palestine is under the
control of its own government. After all, without a defined territory, what we ask,
could the PLO possible control?...[T]hese areas are all under the control of the
State of Israel, not the PLO.
Id. at 48. Here, there is no dispute that the Islamic Republic of Pakistan is a state/sovereign
(Opp. Br. at 11)(Pakistan is “a major ally of the United States”), recognized by the United States,
that controls its own territory and population. Klinghoffer is not applicable. Nothing in
Klinghoffer suggests that the Court intended to change the definition of a “state” as set forth in
the FSIA, 28 U.S.C. §1603(a), which includes political subdivisions, by adding a requirement
that the sovereign need somehow demonstrate “control” of its parts. (Nor could it have done so.)
The correct standard for determining whether ISI is a “state” for FSIA purposes is whether the
entity engages in functions of a public or governmental nature, as articulated by the Second
Circuit in Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006). Following that approach,
“armed forces are as a rule so closely bound up with the structure of the state that they must in all
cases be considered as the foreign state itself for FSIA purposes”. Transaero, 30 F.3d at 153; see
also Def. Br. at 11 (listing cases).
Courts have repeatedly stressed that only the statutory exceptions allow for the exercise
of jurisdiction over foreign sovereigns and have resisted plaintiffs’ attempts to craft non-statutory
exceptions. Thus when plaintiffs have attempted to argue that the FSIA could not apply when

8

sovereigns were accused of violations of jus cogens norms6 courts repeatedly rejected the effort
to create a new exception. See, e.g., Carpenter v. Republic of Chile, 610 F.3d 776, 779 (2d Cir.
2010) (“[T]here is no general jus cogens exception to FSIA immunity.”) Essentially, in making
a jus cogens argument, a plaintiff alleges that a government has acted contrary to the
international policies that bind it. See, e.g., Smith v. Socialist People’s Libyan Arab Jamahiriya,
101 F.3d 239, 242 (2d Cir. 1996).7 Here, similarly, Plaintiffs now argue that the ISI acted
contrary to Pakistan’s policies that bind it. However, as noted, Courts have consistently rejected
that effort to void immunity, noting that jus cogens is not a listed exception to FSIA immunity
and that exceptions are to be “construed narrowly; the judiciary is not to re-draft the FSIA so as
to force an exception that Congress did not craft.” Doe I v. State of Israel, 400 F.Supp. 2d 86,
105 (D.D.C. 2005). Plaintiffs here fail to argue any exception to the FSIA and their catalog of
alleged bad acts of ISI over the years does not provide a basis to strip Pakistan of immunity.
Subject matter jurisdiction exists only if a statutory exception to FSIA applies – see Amerada
Hess, 488 U.S. at 433-36 – and none has been or can be demonstrated here.
II.
THE DIRECTOR GENERAL DEFENDANTS ARE PLAINLY SUED FOR ACTS
TAKEN IN THEIR OFFICIAL CAPACITY: THEY ARE ACCORDINGLY IMMUNE
UNDER WELL SETTLED PRINCIPLES OF COMMON LAW OFFICIAL IMMUNITY
There is no allegation of any act by General Taj, and but a single act is alleged by
General Pasha – that he met, in prison, with one of the LeT leaders arrested by Pakistan. (Compl.

6

“A jus cogens norm, also known as a peremptory norm of international law, is a norm accepted and
recognized by the international community of states as a whole as a norm from which no derogation is permitted.”
Carpenter, 610 F.3d at 779, n. 4 (2d Cir. 2010).
7
Smith involved claims against Libya arising from the bombing of Pan Am Flight 103 (the Lockerbie
bombing). In that case, when Libya had not been designated a state sponsor of terrorism, the FSIA applied and
immunity existed. Later, when Libya was so designated – by the Executive Branch – jurisdiction could be
exercised.

9

¶53).8 Lacking any facts to establish personal liability, Plaintiffs’ claim against Pasha and Taj
instead rests on the alleged policy of ISI (“the ISI has long nurtured and used international
terrorist groups…to accomplish its goals and has provided material support to LeT and other
international terrorist groups”) and their official status ([Pasha and Taj] “exerted full command
and control over the ISI”). (Compl., ¶¶11, 37). Even under the new “rouge agency” theory,
Plaintiffs’ claims against the Director General Defendants are based on official status: they argue
that Pasha and Taj “must have known” – because they were heads of ISI:
…given the many ISI official (sic) involved with Headley and the geographic
scope of the training and planning for the attack…it could not have been
organized and executed without the knowledge and participation of the
organization’s highest level leadership.
(Opp. Br. at 22)(emphasis added). In short, these remain claims against officials for acts which
are alleged to have been undertaken in their official capacity and are precluded under wellestablished principles of common law foreign official immunity. (See Def. Br., at 15-18).
III.
PLAINTIFFS SEEK TO HAVE THIS COURT DECIDE A POLITICAL QUESTION:
THIS CASE IS NOT JUSTICIABLE9
On the motion, Defendants demonstrated that: (1) Pakistan is a critical war-time ally of
the United States and this Administration has repeatedly articulated that as the policy of the
United States (see generally Walsh 5/6 Decl., ¶¶ 3-7, 9-16); (2) Congress in 2009 passed the
Enhanced Partnership with Pakistan Act, which particularly defined ISI as part of the security
forces of Pakistan and specifically tasked the Executive with monitoring ISI activities (Walsh 5/6
8

The single factual allegation regarding General Pasha is apparently based on the report of the National
Investigation Agency of India. (Kreindler Decl., Ex. MM). The NIA report notes Pakistan’s arrest of LeT leader
Zaki-ur-Rehman Lakhvi and reports “The ISI DG, Sujja (sic) Pasha had visited him [in prison] to understand the
Mumbai attack conspiracy”. Id. (emphasis added). Presumably General Pasha would not need to visit the LeT
leader to “understand the conspiracy”, if he and ISI had been conspirators. In fact, David Headley, whom the
Complaint touts as the major link to ISI, specifically testified in the Rana trial that he did not believe General Pasha
and “higher officers” of ISI knew about the Mumbai attack. (Walsh 7/29 Decl., Ex. AK).
9
This is a second, independent ground for dismissal which the Court need not consider if dismissal is
granted on sovereign immunity grounds.

10

Decl. ¶8; Def. Br. at 24); (3) the Executive is tasked in various statutes with designating “state
sponsors of terrorism” (Def. Br. at 23); (4) asserting jurisdiction over Pakistan and it officials
will further stress the relationship between Pakistan and the U.S., with potential disastrous
consequences for the relationship and the region (Walsh Decl. ¶¶ 17-26). Plaintiffs do not
dispute any of these facts, which tie most closely to Baker factors three through six (see Def. Br.
at 22-30). Rather, Plaintiffs simply assert that the Court is faced with “an ordinary tort suit”.
(Opp. Br. at 24). A case which asks this Court to declare that the Federation of Pakistan
orchestrated a terror attack on India is, by definition, not “an ordinary tort suit.”
Moreover, the threshold finding that Plaintiffs propose in itself demonstrates the inherent
political question, and the requested discovery underscores it. Plaintiffs assert that they will
show that ISI is not “under the control of [its] own government” (Opp. Br. at 21). According to
Plaintiffs, this calls for a sweeping examination of Pakistan’s history, back to 1948, to determine
if ISI is “an autonomous, rogue organization operating directly contrary to the directives and
goals of the Pakistan state…” (Opp. Br. at 22). How much “control”, exactly, does Pakistan
have to show? Is it enough if the Director General of ISI serves at the pleasure of the Prime
Minister? How does the Court determine if Pakistan is really a parliamentary democracy, or, as
Plaintiffs seem to allege, merely a front for a rogue terrorist state, run by the military? And what
proceedings would the Plaintiffs have the Court convene in order to make this finding? Baker
factor two counsels this Court that it is a political question if there is “a lack of judicially
discoverable and manageable standards for resolving it.” Baker v. Carr, 369 U.S. 186, 217
(1961). Plaintiffs’ opposition makes it clear that this is such a case.
IV.
NO DISCOVERY IS REQUIRED AND NONE SHOULD BE ALLOWED
Section 1604 of the FSIA expressly provides that:

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…a foreign state shall be immune from the jurisdiction of the courts of the
United States…except as provided in sections 1605 to 1607 of this chapter.
28 U.S.C. §1604 (emphasis added). Accordingly, “a foreign state is presumptively immune from
the jurisdiction of United States courts, unless a specified statutory exception applies.” Garb, 440
F.3d at 582 (internal citation and ellipses omitted). Once a defendant makes a prima facie
showing of immunity, which ISI has done10, then plaintiff has the burden of showing an
exception. Only if the plaintiff comes forward with evidence implicating an exception will the
defendant have the ultimate burden of proving that the exception does not apply. Cargill Int’l
S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993).
Plaintiffs cannot support the exception to FSIA immunity pled in the Complaint. Even in
private party litigation, a plaintiff’s failure to demonstrate any facts to support a prima facie basis
for jurisdiction justifies denial of discovery. Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181 (2d.
Cir. 1998).
In the foreign sovereign context, courts have routinely accepted formal assertions of
immunity from foreign sovereigns and denied requests for discovery directed not to proof of an
exception, but rather solely at contesting the sovereign’s claim that immunity applied. In Matar
v. Dichter, 500 F.Supp. 2d 284, aff’d 563 F.3d 9 (2d Cir. 2009), defendant, a former director of
the Israeli General Security Service, asserted immunity and sought dismissal on the basis of an
(unsworn) letter from the Ambassador of Israel which asserted that an action against Dichter was
an action against the State of Israel. Id., 500 F.Supp. 2d at 287. Plaintiffs sought discovery,

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Outbound Marine Corp., v. P.T. Indosenian Consortium of Const. Industries, 575 F. Supp. 1222 (S.D.N.Y.
1983) and Emarat Maritime LLC v. Shadong Yantai Marine Shipping, No. 08-CV-6520 (RMB), 2009 WL 1024317
(S.D.N.Y. April 15, 2009), which Plaintiffs cite in support of the claim that Pakistan has provided insufficient proof
of ISI’s status as a subdivision of the state, are clearly distinguishable. Both involved commercial entities and in
both cases, the affidavit support was murky as to whether nationalization had occurred. Here, in contrast, we have a
branch of the Government of Pakistan, which even Plaintiffs allege acted for the military of the Islamic Republic of
Pakistan and which has, for sixty years, been treated by the U.S. Government as part of the federal government of
Pakistan.

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“including evidence of the factual and legal authority on which Defendant relies to support his
claim that he was acting within the scope of his authority”. Id. Judge Pauley denied the request,
noting “such discovery would frustrate the significance and benefit of entitlement to immunity
from suit”. Id. at 292, n. 3. Similarly, in Belhas v. Ya’alon, plaintiffs had not tried “to fit their
argument within the framework of the statutory exceptions to immunity under the FSIA”. 466 F.
Supp. 2d 127, 132 (D.D.C. 2006), aff’d. 515 F.3d 1279 (D.C. Cir. 2008). Accordingly, the Court
denied discovery and dismissed, on the basis of a letter from the Ambassador of Israel, holding:
a finding of sovereign immunity here does not rest upon factual findings…but
rather on the lack of a statutory exception in the Foreign Sovereign
Immunities Act that grants subject matter jurisdiction over this lawsuit. That is a
legal conclusion rather than a factual finding; for that reason alone, it is apparent
that no jurisdictional discovery is required.
Id. at 133(emphasis added). Other courts have routinely accepted the sovereign’s evidence of
sovereign status and found immunity without discovery. See, e.g., Doe I, 400 F.Supp.2d at 101;
Garb, 440 F.3d at 598; Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003).11
Further, the discovery sought would in itself vitiate sovereign immunity. Plaintiffs want
discovery as to the “legal architecture purportedly establishing and governing the ISI as well as
to the facts regarding its relationship or autonomy from the Government of Pakistan”, (Opp. Br.
at 19). The proposed discovery would reach back to the establishment of ISI, in 1948, and
requires, at a minimum, depositions of the Attorney General of Pakistan, its Ambassador to the
United States, and U.N. Commissioners who investigated the assassination of Benazir Bhutto in
2007. (Kreindler Decl. at ¶¶10). Allowing such discovery, against a foreign sovereign, would be
an abuse of discretion. See In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998).
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As the Court noted, in Compagnie Noga, “…numerous other courts have accepted without discussion that
governmental departments or ministries…qualify as political subdivisions of a foreign state under FSIA”. 361 F.3d
676, 687(citations omitted)(emphasis added). In contrast, all cases cited by Plaintiffs in favor of discovery (Opp. Br.
18) involve assertions by plaintiffs that a specific statutory exception applied, and hence limited factual discovery on
specific facts was granted. Clearly the proposed discovery here is not limited and focused jurisdictional discovery.

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V.
DEFENDANTS HAVE NO OBJECTION TO SEEKING THE VIEWS OF THE
DEPARTMENT OF STATE, WITH AN APPROPRIATE STAY, BUT BELIEVE THIS
COURT MAY DECIDE THIS MOTION NOW
In Samantar, when the District Court stayed proceedings, it waited two years for a
response from the Department of State and then, having received no response, reinstated,
concluded that that it did not have subject matter jurisdiction, and dismissed. 130 S. Ct. 2283.
Given that possibility we note: (1) this Court has the authority to decide these issues without
input from the Executive; (2) lack of intervention by State does not support a negative inference.
§ 1602 of FSIA, entitled “Findings and declaration of purpose”, specifically directs:
Claims of foreign states to immunity should henceforth be decided by courts of
the United States and of the States in conformity with the principles set forth
in this chapter.
28 U.S.C. §1602 (emphasis added). In Samantar, the Supreme Court confirmed the intent was
“to transfer primary responsibility for deciding ‘claims of foreign states to immunity’ from the
State Department to the courts.” 130 S. Ct. at 2285. Samantar also specifically held, with
respect to foreign official immunity, that even without a statement of immunity from State, a
district court “ha[s] authority to decide for itself whether all the requisites for such immunity
exist[]” and may find immunity when, as here, “the ground of immunity is one which it is the
established policy of the [State Department] to recognize.” Id. at 2284 (internal citation omitted).
Nor does the Court require a Statement of Interest to dismiss on the basis of political question.
See, e.g., Ungaro-Benages v. Dresdner Bank AG, No. 01-2547-CIV, 2003 WL 25729923, *5
(S.D. Fl. 2003) (citing Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248 (D.N.J. 1999) and
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424 (D.N.J. 1999), and noting “… each [Court]
reached the conclusion that … claims which confronted them were non-justiciable [as a result of
the Political Question Doctrine] … without benefit of a statement of interest to guide them.”).

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