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

Filing 18

AFFIDAVIT/DECLARATION in Support re 12 MOTION to Dismiss for Lack of Jurisdiction Reply Declaration of Kevin J. Walsh filed by Inter-Services Intelligence of the Islamic Republic of Pakistan, Ahmed Shuja Pasha, Nadeem Taj. (Attachments: # 1 Exhibit AH to the Reply Declaration of Kevin J. Walsh, # 2 Exhibit AI to the Reply Declaration of Kevin J. Walsh, # 3 Exhibit AJ to the Reply Declaration of Kevin J. Walsh, # 4 Exhibit AK to the Reply Declaration of Kevin J. Walsh, # 5 Exhibit AL to the Reply Declaration of Kevin J. Walsh, # 6 Exhibit AM to the Reply Declaration of Kevin J. Walsh, # 7 Exhibit AN to the Reply Declaration of Kevin J. Walsh, # 8 Exhibit AO to the Reply Declaration of Kevin J. Walsh, # 9 Exhibit AP to the Reply Declaration of Kevin J. Walsh, # 10 Exhibit AQ to the Reply Declaration of Kevin J. Walsh, # 11 Exhibit AR to the Reply Declaration of Kevin J. Walsh, # 12 Exhibit AS to the Reply Declaration of Kevin J. Walsh, # 13 Exhibit AT to the Reply Declaration of Kevin J. Walsh) (Walsh, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SHIMON ROSENBERG et al.,
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Plaintiff,
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-against:
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LASHKAR-E-TAIBA et al.,
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Defendants.
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KIA SCHERR, Individually, and as Personal
Representative of the Estates of Naomi Scherr and :
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Alan Scherr,
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Plaintiff,
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-against:
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LASHKAR-E-TAIBA et al.,
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Defendants.
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EMUNAH CHROMAN, Individually, and as
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Personal Representative of the Estate of Ben Zion
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Chroman,
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Plaintiff,
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-against:
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LASHKAR-E-TAIBA et al.,
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Defendants.
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1:10-cv-05381

1:10-cv-05382

1:10-cv-05448

DECLARATION OF KEVIN J. WALSH IN FURTHER SUPPORT OF THE MOTION
BY DEFENDANTS, THE INTER-SERVICES INTELLIGENCE DIRECTORATE OF
THE ISLAMIC REPUBLIC OF PAKISTAN AND ITS CURRENT AND FORMER
DIRECTOR GENERALS, FOR DISMISSAL

1

Kevin J. Walsh hereby declares, under penalty of perjury under the laws of the United
States of America, as follows:
1.

I am a member of the firm of Locke Lord Bissell & Liddell LLP, counsel in these

cases for the Inter-Services Intelligence Directorate of the Islamic Republic of Pakistan (“ISI”),
and for Lieutenant General Ahmed Shuja Pasha, the current Director General of ISI and
Lieutenant General Nadeem Taj, Director General of ISI from October, 2007 to October, 2008.
ISI is a subdivision of the Federation of Pakistan, the federal government of the Islamic Republic
of Pakistan.
REASON FOR THIS DECLARATION
2.

In opposition to the motion to dismiss, Plaintiffs have asserted that Defendant ISI

is not part of the state of Pakistan and hence not entitled to immunity under the Foreign
Sovereign Immunities Act of 1976 (“FSIA”). They have argued that they should be permitted to
undertake extensive discovery regarding Pakistan’s governmental operations, back to the
inception of the state in 1948, and have submitted a collection of documents, ranging from a
copy of the indictment of Osama Bin Laden in 1998, to his most wanted poster, to the 9/11
Commission Report and newspaper reports quoting unnamed “former fighters” (Declaration of
James P. Kreindler, dated July 6, 2011, “Kreindler Decl.”, Exs. O, R, U and HH). The nearly
fifty documents, books, newspapers, and Wikileaks cables are apparently offered to show that
there are “questions of fact” justifying the proposed discovery of Pakistan – including its
Ambassador to the United States, its Attorney General, officials of the United Nations Officials,
and numerous others.
3.

This affidavit is submitted in response.

2

ISI IS PART OF THE FEDERATION OF PAKISTAN –THE FEDERAL
GOVERNMENT OF THE ISLAMIC REPUBLIC OF PAKISTAN
4.

On the motion, Defendants submitted the Declaration of Maulvi ul Haq, the

Attorney General of Pakistan, which specifically affirmed that ISI is part of the Government of
Pakistan, that it carries out intelligence functions for the Government and Military of Pakistan,
and that it is under control of the Government of Pakistan and has no commercial function.
5.

In his Declaration, the Attorney General referenced a letter dated September 2,

1948 and attached an “extract” (re-typed and redacted) of this letter – Ministry of Defense letter
No. 2722/123/JI(X) – which announced the establishment of ISI “under the Ministry of
Defence.” While not contesting any of the facts in the ul Haq Declaration, Plaintiffs have
asserted in their Opposition Brief that “the single document on which moving defendants rely is
of questionable probity” (Opp. Br., p. 20) based on the use of a re-typed “extract” certified by the
Joint Secretary Ministry of Defence. In order to respond, attached hereto as Exhibit AH, is a
copy of the physical document as maintained in the file of the Ministry of Defense of the
Federation of Pakistan. As in the extract, confidential and non- relevant material has been
redacted. It is identical in substance to the “extract” attached to the ul Haq Declaration – which
was certified by the Joint Secretary, Ministry of Defense – and confirms the establishment of ISI
“under the Ministry of Defence” (Id.). The Government of Pakistan strongly objects to
discovery into its sovereign status as inconsistent with sovereign immunity, has provided this
document as a courtesy to the Court and has and will provide only those portions directly
relevant to the fact that ISI exists as part of the Federation of Pakistan. Responding to the
queries raised in Plaintiffs’ Opposition Brief, the copy of the physical document confirms that
the original record was in English.

3

NO “CONTRADICTORY STATEMENT” HAS BEEN MADE
BY THE ATTORNEY GENERAL
6.

Plaintiffs, in their Opposition Brief, claim that Mr. ul Haq told the Supreme Court

of Pakistan that “no rules or laws govern the ISI” (Opp. Br., p. 5). This, they assert, is a
“contradictory statement” which backs their claim that they should be entitled to conduct a
deposition of the current Attorney General of Pakistan, to prove that his declaration regarding the
ISI is false.
7.

In support of the alleged contradiction, Plaintiffs submit a newspaper report of an

argument before the Supreme Court of Pakistan on November 25, 2010, and a later newspaper
editorial which appears to reference this same hearing. (Kreindler Decl., Ex. B, 11/25/10 internet
report of article in Dawn (Pakistani newspaper); Kreindler Decl., Ex. A, internet report of
1/24/11 editorial in Dawn.) The claim of a “contradictory statement” comes from the
newspaper’s description of the argument, which reports that “[t]he AG conceded that there were
no rules or laws to manage these agencies.” (Kreindler Decl., Ex. B). This is the basis for
Plaintiffs’ request that Mr. ul Haq be compelled to sit for a deposition.1
8.

The argument to the Supreme Court referenced in Plaintiffs’ exhibits took place in

proceedings in which private civil litigants asserted claims against the Federation of Pakistan for
alleged wrongs of Pakistan’s intelligence agencies (including ISI) relying on the original
jurisdiction of the Supreme Court to hear constitutional claims. The cases involved claims that
missing Pakistani citizens had been illegally detained by the state. The mere fact that such
proceedings could be brought, of course, disproves Plaintiffs’ claim that “no law applies to the
ISI.” In addition, a final order was entered in this case which makes that explicit.
1

It is Defendants’ position that the documents annexed to the Kreindler Declaration are not relevant – since
they do not contest the facts which establish that ISI is part of the “state” of Pakistan – and should not be considered
by the Court. Many of the documents are also not admissible. Defendants do not waive that objection by
responding in this submission.
4

9.

Attached hereto as Exhibit AI is a true and correct copy of the final Order of the

Supreme Court of Pakistan, issued in these cases on January 6, 2011. The Order makes it clear
that there was no dispute: the Government of Pakistan contended that ISI was subject to the
Constitution and laws of Pakistan. As reported therein:
Mr. Raja Muhammad Irshad, learned Senior ASC, has appeared on
behalf of the Federation of Pakistan…He makes a loud and clear
statement that impression given to this Court that the Pakistan
Army or any one of its functionaries including I.S.I. are not
amenable to the jurisdiction of this Court is absolutely wrong
impressions. The Pakistan Army, I.S.I. and any other agency
are subject to the Constitution and in pursuance whereof hold
this Court in highest esteem…and always consider themselves
bound to follow the orders and the judgments of this Court.
(Ex. AI)(emphasis added). In noting that the detainees had been located, and in closing the case,
the Order confirmed the acceptance of the statements of counsel for the Government of Pakistan
and specifically confirmed that ISI is subject to the law of Pakistan:
…the impression so created earlier was dispelled [by the further
statement of counsel]…therefore we are of the opinion that the
actions of the Pakistan Army or any of their functionaries
including I.S.I. are subject to the Constitution and the law. There
was no need of creating such expression because the 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 the Constitution and the law, the [detainees] have also
been traced and according to the learned counsel they are subject
to law, we are of the opinion that they are no longer in the illegal
custody…law has taken its course, no further action is called for,
for the time being. Therefore petition stands disposed of.
(Id.)(emphasis added).
10.

The cases before the Supreme Court, referenced in the articles attached to

Plaintiffs’ papers (Kreindler Decl., Exs. A, B, C, D, E) confirm that under Pakistan law, ISI is in
fact part of the Federation of Pakistan. Insofar as ISI, the other state security agencies and the
police are parts of the federal or provincial government of Pakistan, the claims in such cases
5

were brought against the Federation of Pakistan (the Pakistan Federal Government) or the
various provincial governments, invoking the original jurisdiction of the Supreme Court to
address Constitutional violations. Attached as Exhibit AJ, by way of example, is a true and
correct copy of Constitution Petition No. 37 of 2007, which asserted such claims under Article
184(3) of the Constitution of Islamic Republic of Pakistan, 1973. In other words, under Pakistan
law, a claim against the ISI is a claim against the Federation of Pakistan. Indeed, even the
newspaper reports attached to Plaintiffs’ papers reflect that Attorney General ul Haq appeared
“on behalf of two premier intelligence agencies – Inter-Service Intelligence and the Military
Intelligence” and advised the Court that “the proper party was the federation [of Pakistan]
through the secretary of the ministry.” (Kreindler Decl., Ex. B). The Attorney General also
advised the court that “neither had he raised the question of jurisdiction nor pleaded
immunity (for the intelligence agencies).” (Id.) Accordingly, the documents attached to the
Kreindler Declaration in fact reflect that: (1) civil litigants in Pakistan are able to assert – and in
fact have asserted – claims against ISI by making such claims against the Federation of Pakistan;
and (2) ISI is part of the Federation of Pakistan, and is so treated by the Executive and Judicial
branches. In any event the existence of filings in litigation in Pakistan has no relevance on the
issue of sovereign immunity.
PLAINTIFFS’ EFFORT TO DRAW INFERENCES FROM THE RANA PROSECUTION
11.

Plaintiffs have submitted trial transcripts and related documents arising from a

criminal prosecution of an individual, Tahawur Hussain Rana, in the District Court for the
Northern District of Illinois. The Government prosecuted Mr. Rana largely on the basis of the
testimony of Daoud Gilani/David Headley, who was arrested in October 2009 as a key Mumbai
conspirator, entered a guilty plea in March 2010, and thereafter became a cooperating witness for

6

the Government. (Walsh 5/6 Decl., Ex. S). Plaintiffs have submitted pages of Headley’s trial
testimony (Kreindler Decl., Ex. FF), a proffer from the Government regarding his testimony (Id.,
Ex. JJ), a superseding indictment (Id., Ex. KK), a press report from an Indian newspaper (Id., Ex.
LL), and an interview with Headley (Id, Ex. MM). Plaintiffs assert that the evidence used by the
Government in the Rana prosecution is the same evidence they would adduce at trial, and
therefore argue that the Government impliedly supports a civil claim against Pakistan. There are
several factual difficulties with the offered conclusion.
12.

First, the prosecution of Rana is a prosecution of an individual – it was not a

prosecution of ISI. Even the indictment of “Major Iqbal” (Kreindler Decl., Ex. KK) is in fact an
indictment of an individual named “Fnu Lnu,” whom the Government asserts also used the name
“Major Iqbal:” the indictment is against Fnu Lnu, “a/k/a Major Iqbal.” Further, although omitted
from Plaintiffs’ selection of transcript pages (Kreindler Decl., Ex. FF), Mr. Headley in fact
testified to his belief that higher officers of ISI in fact had no knowledge of “Major Iqbal’s”
alleged activities in connection with the Mumbai attacks.
Q.

You have been telling us over the past few days about
Major Iqbal’s participation in or knowledge regarding the
attack that happened in Mumbai. Remember that?

A.

Yes.

Q.

And you’ve told us that Major Iqbal is an ISI officer,
correct?

A.

Yes.

Q.

But it’s your belief that all of ISI did not know about
the attack that was going to happen in Mumbai,
correct?

A.

Yes.

Q.

And, in fact, you believe that the head of ISI did not
know about the Mumbai attack, correct?
7

A.

Higher officers.

Q.

I’m sorry?

A.

The higher officers.
***

Q.

But from your personal knowledge, the only ISI person
that you know or believe had pre-knowledge of the
Mumbai attack is Major Iqbal, right?

A.

Yes.

(Transcript of Headley testimony on May 31, 2011, pgs. 1036-1038, attached as Exhibit AK).
Again, this is collateral litigation and provides no basis for this Court to ignore the FSIA and
principles of sovereign immunity. Additionally, despite Mr. Headley’s detailed testimony to
support the claim that Mr. Rana knowingly aided in the attack on Mumbai, ultimately the jury
acquitted on this charge. (See report from Boston Globe, June 10, 2011 attached as Exhibit AL.)
CURRENT STRAINS IN THE U.S.-PAKISTAN RELATIONSHIP DO NOT LESSEN
THE POLITICAL ISSUES INHERENT IN THIS CASE NOR PROVIDE A REASON TO
IGNORE DEFENDANTS’ SOVEREIGN STATUS
13.

In a further effort to persuade the Court to disregard Pakistan’s sovereign status,

Plaintiffs’ opposition highlights the discovery that Osama Bin Laden was hiding “deep in
Pakistan” and asserts that this has “focused additional suspicion on ISI.” (Opp. Br., p. 10;
Kreindler Decl., Exs. PP, QQ, RR). Reports of “suspicion” provide no rationale for the
assumption of jurisdiction by this Court. Further: (1) the highest officials of the United States
Government have repeatedly, since May of this year, affirmed that they are aware of no evidence
which supports a conclusion that the Government of Pakistan (including ISI) knew about Osama
Bin Laden’s long term presence in Abbottabad; (2) United States officials have continued to
describe the relationship between Pakistan and the United States as “critical,” although also
describing it as “difficult” and complex; and (3) the United States has continued to work directly
8

with ISI, and its head, General Pasha, to maintain the critical relationship – a process this
litigation would surely disrupt. Those facts are evidenced in the following public statements:
•

“Over the years, I’ve repeatedly made clear that we would take action within
Pakistan if we knew where bin Laden was. That is what we’ve done. But it’s
important to note that our counterterrorism cooperation with Pakistan
helped lead us to bin Laden and the compound where he was hiding. Indeed,
bin Laden had declared war against Pakistan as well, and ordered attacks against
the Pakistani people.” Remarks of President Barack Obama on Osama Bin
Laden, May 2, 2011, Kreindler Decl., Ex. PP (emphasis added).

•

“Since 9/11, Pakistan has been a strong partner in our counterterrorism efforts.
Now, there have been times when we have had disagreements, there have been
times when we wanted to push harder, and for various reasons, they have not.
Those differences are real. They will continue. But the fact of the matter is that
the international community has been able to kill more terrorists on
Pakistani soil than anyplace else in the world. We could not have done that
without Pakistani cooperation. I believe strongly it is in our national security
interests to have a comprehensive, long-term partnership with the
government and people of Pakistan. …And going forward, we are ready and
willing to support the people and Government of Pakistan as they defend their
own democracy from violent extremism. They have lost thousands of Pakistanis,
civilian and military. They have seen not only their military facilities, but
mosques and marketplaces, universities and schools attacked ruthlessly with
extraordinary damage. And so for me, we’re going to continue our consultations.
…But I want to underscore, in conclusion, that it is not as though they have been
on the sidelines. They have been actively engaged in their own bitter fight with
these terrorist extremists who target indiscriminately people from all walks of life,
all ages, and we’re going to look to put our partnership on as strong a foundation
going forward as possible.” Remarks of Secretary of State Hillary Clinton in
Paris, May 26, 2011, attached hereto as Exhibit AM (emphasis added).

•

“Secretary Clinton: [N]o nation has sacrificed more lives in this struggle against
violent extremism than Pakistan has. …But we both recognize there is still much
more work required and it is urgent. Today, we discussed in even greater detail
cooperation to disrupt, dismantle and defeat al-Qaida, and to drive them from
Pakistan and the region. We will do our part and we look to the Government of
Pakistan to take decisive steps in the days ahead. Joint action against al-Qaida and
its affiliates will make Pakistan, America, and the world safer and more secure.
….We are prepared to stand by the Pakistani people for the long haul. The United
States knows that Pakistan’s future is imperatively important for us, but
even more so for the people themselves, and we look toward a strong
Pakistan, one that is democratic, one that is prosperous and stable, being a
cornerstone for regional stability and global security. That is why the United

9

States will continue to support Pakistan’s sovereignty, its civilian-elected
government, and above all, its people.
*****
Admiral Mullen: And from my perspective, no one should doubt for a minute the
long-term commitment to this relationship, to the need to rebuild on the trust that
certainly was recently shaken, and that the strength of that relationship in the long
term will, I think, support a more stable, peaceful, prosperous Pakistan but also a
more stable, peaceful, and prosperous region.
*****
Secretary Clinton: And I think it’s important to remember where we started,
because I believe we’ve had significant cooperation, and there has been a
tremendous amount of commitment shown by the Government of Pakistan toward
this fight against extremism. …You may know that today the United States
Government got access to the compound [where bin Laden was hiding], thanks to
the cooperation of the ISI and the military. And we are working to try to
untangle the puzzle of bin Ladin’s presence in Abbottabad. But I want to
stress again that we have absolutely no reason to believe that anyone in the
highest levels of the government knew that. In fact, they were quite emotional
in conveying how they would have gone after them if they had known he was
there, because as the President said, there’s a lot of reason to believe al-Qaida was
behind his wife’s murder. So there were common concerns about this, and we had
a very forthright discussion.” Remarks of Secretary Clinton and Admiral Mike
Mullen in Islamabad, May 27, 2011, attached hereto as Exhibit AN
(emphasis added).
•

“CIA Deputy Director Michael J. Morell negotiated access to the Abbottabad site
during a trip to Islamabad last week, when he met with the head of Pakistan’s
main intelligence service, Lt. Gen. Ahmed Shuja Pasha, officials said.
Pakistan’s agreement is seen as an encouraging sign that the two spy services will
continue cooperating despite anger in Islamabad over the American operation to
kill bin Laden, and a series of recent ruptures between the CIA and its Pakistani
counterpart.” “CIA to search bin Laden compound,” The Washington Post,
May 27, 2011, attached hereto as Exhibit AO (emphasis added).

•

“Pakistan is a key ally in our joint fight against terrorists that threaten both of us
as well as the region and beyond. And when I was there, we discussed our
cooperative efforts to disrupt, dismantle and defeat al-Qaida and to also drive the
associated terrorists who are targeting both Pakistanis and, across the border in
Afghanistan, Americans, coalition troops, and Afghans. So we are discussing a
number of approaches that we think could assist us in this very important fight. I
would also add that there is no doubt that the progress we have made against
al-Qaida and terrorists could have (sic) not have happened without Pakistani
cooperation between our governments, our militaries, our intelligence
agencies. And there’s still a lot of work to be done, so we are in the process of
discussing what more the Pakistanis could do. We will continue to do our part
10

working together.” Remarks of Secretary Clinton in Washington, May 31,
2011, attached hereto as Exhibit AP (emphasis added).
•

“Mr. Carney: I addressed a lot of these questions in the wake of the successful
mission against Osama bin Laden. I think we have made clear that our
cooperative relationship with Pakistan is important. It’s been complicated,
obviously, but it is vital to our successful effort against terrorism and
terrorists. We – the cooperation we’ve received from Pakistan in the past has led
to a variety of successes in our effort against terrorists. And we look forward to
continuing that cooperative relationship.
Question: You trust and verify with Pakistan?
Mr. Carney: No, I just think – what I’ve said is that it’s, you know, there’s no
secret to the fact that this is a complicated relationship and at times a
difficult relationship. But it is an important relationship and one we’re
committed to because the cooperation between the United States and
Pakistan, between our governments, our militaries, our security services, our
intelligence services, is so vital to America’s national security interests. And
so, because of that, we will continue to pursue it.” Remarks of White House
Press Secretary Jay Carney, White House Press Briefing, June 2, 2011,
attached hereto as Exhibit AQ (emphasis added).

•

“Secretary Gates: First of all, I would say that the long history of the U.S.Pakistani relationship has had its ebbs and flows. They have regarded over the
decades that we have abandoned them on at least four occasions: two wars with
India, when the Soviets left Afghanistan, and then after the enforcement of the
Pressler amendment. So it’s a – it’s a relationship both sides have had to work
on. And it is complicated, but as I – as I said yesterday in the hearing and as
I’ve said often before, we need each other, and we need each other more than just
in the context of Afghanistan. Pakistan is a(n) important player in terms of
regional stability and in terms of Central Asia. And so my view is that this is a
relationship where we just need to keep working at it.”
*****
Admiral Mullen: From my perspective, nothing’s changed in terms of the
criticality of the relationship, which is one of the reasons that I’ve worked so
hard….And as I said yesterday on Capitol Hill, I believe we have to be very
careful now in terms of the relationship. And you know, were it to break or were
we to walk away, I think in a – it’s a matter of time before the region is that much
more dangerous and there would be a huge pull for us to have to return to protect
our national interests. Remarks of Secretary of Defense Robert Gates and
Admiral Mike Mullen, Defense Department Briefing, June 16, 2011, attached
hereto as Exhibit AR (emphasis added).

11

•

“In recent weeks, we’ve been reminded that our relationship with Pakistan is
not without tension or frustration. We are now working with our Pakistani
partners to overcome differences and continue our efforts against our common
enemies. It is essential that we do so. As frustrating as this relationship can
sometimes be, Pakistan has been absolutely critical to many of our most
significant successes against al-Qaida. Tens of thousands of Pakistanis, military
and civilians, have given their lives in the fight against militancy. And despite
recent tensions, I am confident that Pakistan will remain one of our most
important counterterrorism partners.
*****
To my knowledge, the Pakistani leadership – military, political, intelligence –
was caught totally unawares by the fact that bin Laden was found in a
compound in Abbottabad, close to its military academy and not too far from
the nation’s capital.
*****
So that partnership with the Pakistanis – in my mind, there’s no alternative to us
or to the Pakistanis to ensuring that we continue engaging with them…So yes, we
have frustrations with them, but at the same time, they’re on the front lines.
They’re giving their lives every day. And I am very appreciative of the efforts that
they have made against al-Qaida.” Remarks by John Brennan, Assistant to the
President for Homeland Security and Counterterrorism, June 29, 2011,
attached hereto as Exhibit AS (emphasis added).

•

“Lieutenant-General Ahmed Shuja Pasha made a brief visit to Washington,
arriving on Wednesday and leaving on Thursday, to meet with Acting CIA
Director Michael Morell and other intelligence officials. Both sides sought to
renew ties of cooperation and move forward in an often challenging relationship.”
“Pakistan spy chief visit to U.S. ‘went very well,’” Reuters, July 14, 2011,
attached hereto as Exhibit AT (emphasis added).

PLAINTIFFS’ EXHIBITS ARE:
(1) NOT RELEVANT ON THE ISSUE OF SOVEREIGNTY; BUT (2) DEMONSTRATE
THE POLITICAL QUESTION IMPLICATED IN THESE CASES
14.

Finally, while Plaintiffs have submitted numerous (mostly inadmissible) exhibits

in support of the claim that “issues of fact” exist as to whether ISI is in fact part of the
Government of Pakistan, they fall, generally, into two categories: (1) documents which relate to
events which occurred years in the past, with Plaintiffs proposing to take discovery and
investigate long ago events to supposedly prove that Pakistan’s democracy does not really
function; or (2) more recent Wikileaks documents, which have leaked sensitive U.S. Government

12

information, reflecting the United States’ awareness of all of the charges, rumors and events now
cited by Plaintiffs, which in fact confirm that a political decision has been taken.
15.

First, Plaintiffs have submitted documents relating to events years in the past, and

propose to conduct discovery in a far ranging examination of Pakistan’s history. In all instances,
it is not clear what facts the purported discovery would prove, nor how this Court would apply
judicial processes to the proposed fact finding. Examples of the difficulties are noted below:
•

Kreindler Decl., Ex. C, Dawn Article, “We Never Learn From History”,
dated August 5, 2007. This article refers to a litigation filed in 1996, alleging
ISI’s misuse of funds in the election of 1990. Mr. Kreindler’s Declaration says
that “Plaintiffs are making efforts to obtain the records and/or transcripts of the
proceeding reported in the article.” (Kreindler Decl., ¶ 6). Presumably, if
obtained, those “records and/or transcripts” would show that a litigation was filed
in 1996, alleging misuse of funds in the election in 1990. Neither the Kreindler
Declaration not Plaintiffs’ Brief explains what proceeding the Court should
entertain if those records are obtained, nor what findings of fact they would
support which might be relevant on the threshold issues of sovereign immunity
and political question.

•

Kreindler Decl., Ex. J., an excerpt from Between Mosque and Military. This
book was written by the current Ambassador of Pakistan to the United States,
Hussain Haqqani, and was published in 2005 while General Musharraf remained
involved in Pakistani politics. It also deals with elections which took place in the
1990s. Plaintiffs assert that they “will seek to depose” Pakistan’s Ambassador
(Kreindler Decl. ¶ 10(c)). The insult to Pakistan’s sovereignty is obvious, and
again, there is no indication of: (1) what facts relevant to ISI’s status as part of the
sovereign would be proven; (2) what judicial procedure could possibly determine
these facts. Interestingly, the excerpt from the book provided by Plaintiffs also
includes a section regarding consideration, by the Bush administration, in 1992, of
formally designating Pakistan as a state sponsor of terrorism – underscoring that
this issue is within the purview of the Executive Branch. (Kreindler Decl., Ex. J,
pgs. 294-295).

•

Kreindler Decl., Ex. M, a June 16, 2005 editorial by Sherry Rehman, then a
member of Pakistan’s National Assembly, and now a minster of the Pakistani
Government. This editorial relates to the issue of transparency in the national
budget, and the specific comment regarding the intelligence agencies being
“above the laws and unaccountable” relates to the same charges concerning the
1990 election and the same lawsuit referenced in Kreindler Decl. Ex. C. Also,
Kreindler Decl., Ex. K, the excerpt from the Benazir Bhutto autobiography, also
refers to the 1990 election. (See Ex. K, pgs. 408-410).
13

•

Kreindler Decl., Ex. L, “Report of the United Nations Commission of Inquiry
into the facts and circumstances surrounding the assassination of the former
Pakistani Prime Minister Mohtarma Benazir Bhutto.” This report contains
comments critical of the functioning of the Pakistani government, and Plaintiffs in
essence propose to re-open this investigation, noting that “Plaintiffs will seek to
depose...the members of the United Nations Commission regarding their
knowledge of the ISI.” (Kreindler Decl., ¶ 10(f)). Similarly, the Bhutto
autobiography reports a previous attempt on her life, in the 1990s, and again
Plaintiffs would propose, under the auspices of “jurisdictional discovery,” to
investigate those facts as well, with a proposition to depose an individual alleged
to have been involved in one such attempt in 1993. If the United Nations
Commission was unable to reach conclusions as to who acted with the 15 year old
suicide bomber, it is difficult to imagine proceedings in this Court which will
pierce this veil, and even harder to conceive of this as “limited jurisdictional
discovery.”
16.

Plaintiffs have also submitted to the Court confidential United States Government

documents which have become public through the Wikileaks disclosure. These private
deliberations and considerations of the Executive offer no basis for this Court to deny sovereign
immunity to part of the Government of Pakistan, or take for itself jurisdiction of a political
question. But, the confidential documents of the Executive, which Plaintiffs have now put
before this Court, demonstrate quite clearly that, as Defendants have contended, the alliance with
Pakistan is an extremely sensitive, important and difficult relationship for the United States, that
the United States Government is well aware of the challenges faced by the democratic
government of Pakistan, and underscore that the policy choices here are inherently political
questions of high significance and complexity which impact the Governments of Pakistan, the
United States and the relationship of both countries with India, as noted below:
•

Kreindler Decl., Ex. H, a March 3, 2009 classified secret cable from the
Ambassador of the United States, Anne W. Patterson, to the Director of the
FBI, Robert Mueller prior to the his visit to Pakistan and shortly after the
Mumbai attack. This document specifically refers to the Agency’s relationship
with Pakistan’s security forces, referencing Director Mueller’s meeting with “DG
ISI Pasha, whom you met in last week’s bilateral and trilateral strategic
review in Washington” and reports on General Pasha’s “determination to
end ISI’s overt and tacit support for proxy forces in the tribal areas.”
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Ambassador Patterson also notes that President Zardari has brought the
Intelligence Bureau “firmly under his control,” and that, in the view of the United
States, “the challenges the state [Paksitan] confronts are dire.” She further notes
that “Indo-Pak tensions are still simmering,” while referencing Pakistan’s
announcement of the prosecution of Pakistani citizens with involvement in the
Mumbai attack. This report underscores the complexity and criticality of the U.SPakistan relationship, and the Executive Branch’s efforts to maintain the
relationship with Pakistan as an ally of the United States. This relationship has
been damaged by many things – including the Wikileaks disclosure of
confidential United States documents – but this is not a reason for this Court to
take on a political question.
•

Kreindler Decl., Ex. CC, a secret and classified cable from Ambassador
Patterson, immediately after the attacks. This cable notes the risk of war
between India and Pakistan (Pakistan is concerned that India has “armed some of
its missiles”), reflects a concern that Pakistan will divert forces from the border
with Afghanistan, and discusses meetings and engagement directly with Chief
of General Staff Kayani. While expressing frank concern over “weak civilianmilitary coordination,” the clear policy is continued engagement with the
Government of Pakistan, including its military.

•

Kreindler Decl., Ex. EE, a confidential report by U.S. Ambassador to India
on Special Representative Richard Holbrooke’s visit to India. This report
stresses “the U.S. and India’s shared interest in Pakistani stability,” describes
Pakistan as “critical to regional stability” and notes that, while the United States
has a “difficult relationship with Paksitan…it was neither in the U.S. nor India’s
interest that the U.S. abandon its ties to Islamabad.”

•

Kreindler Decl., Ex. NN, a classified cable from Ambassador Patterson in
February 2009 in advance of a visit by General Kayani to Washington. This
cable notes “the long term U.S. commitment to support Pakistan” and also
specifically recognizes the participation of the Director General of ISI in the
Administration’s meetings to formulate a new policy for Pakistan, suggesting that
Washington should “…thank [General Kayani] for agreeing to send his
intelligence chief [Lt. General Pasha] and director of military operations to
the Holbrooke/Riedel U.S.-Pakistan strategic review meeting in
Washington.”2
17.

In short, the confidential United States documents relied upon by Plaintiffs

provide no basis to disregard Pakistan’s sovereignty, and in fact confirm that allowing this action

2

Other Wikileaks documents proffered by Plaintiffs relate to events long in the past – in particular, Exs. F,
Y, Z and AA (Guantanamo detainee reports and related documents) – which include for example, a statement by a
detainee that in 1999 the ISI was involved in “insertion tactics in Kashmir” (Ex. Y).
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