In America’s courts

ISI enjoys sovereign immunity from prosecution, ironic given the military refused Raymond Davis diplomatic immunity.

Winston Churchill may have vowed to fight Nazi Germany on the beaches but how do you fight an enemy that is ostensibly a friend? If the Raymond Davis saga, the Abbottabad raid and a public leak blaming the ISI for journalist Saleem Shahzad’s murder wasn’t enough, there is now further evidence that the US considers the spy agency an enemy and that the battlefield of choice will be the courtroom.

The arrest of Ghulam Nabi Fai, director of the Kashmiri American Council (KAC), for not disclosing that he was being paid by the Pakistan government is the third legal action that seeks to make the case that the ISI is an organisation that cannot be trusted. The KAC was described in the FBI affidavit as an ‘ISI creation’ and Fai as an “ISI asset”.

Before Fai’s arrest, there was the Chicago trial of Tahawwur Rana, a Pakistani-Canadian accused of taking part in the 26/11 Mumbai attacks. David Headley testified that he attended 50 training sessions and was in constant contact with an agency handler whom he called “Major Iqbal”. At the same, relatives of American citizens killed in the 26/11 attacks are proceeding with a civil suit in Brooklyn that seeks monetary damages from the ISI, its current and former heads Ahmed Shuja Pasha and Nadeem Taj and two ISI officials identified as ‘Major Iqbal’ and ‘Major Samir Ali’.

The three cases will be complementary in building a case against the ISI that aims to ultimately find the agency guilty in the court of public opinion. The idea is, presumably, to use Headley’s testimony in Chicago to prove in Brooklyn that the agency as a whole was responsible for the Mumbai attacks. Meanwhile, the case against Fai, which would have been quite unremarkable were it not for the ISI connection, will further bolster the US case that the spy agency uses underhand tactics and is not to be trusted.

Questions of guilt aside, there is a chance that the Brooklyn case will be dismissed. Through its lawyers, the ISI has claimed that it enjoys sovereign immunity from prosecution, an ironic position to take given the military’s reluctance to grant Raymond Davis diplomatic immunity. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), all governments that are not state sponsors of terrorism are protected from prosecution in US courts.

Individuals in the government, however, can be put on trial, although the precedent for this is mixed. A 2010 US Supreme Court case, Yousuf versus Samantar, held that a former Somalian government official did not enjoy immunity under the FSIA but a case brought against Saudi officials for financing al Qaeda was dismissed under the same law.

Given the murkiness surrounding the FSIA, whether the Brooklyn case goes ahead may ultimately depend on public opinion in the US. And in that court the agency has already been declared guilty. What remains to be seen is how the ISI will respond to all of this. So far, this has not been encouraging and knee-jerk. It has demanded the removal of all American spies and military trainers inside Pakistan, which, according to some reports, may have been the primary cause for the suspension of $800 million in US military aid to Pakistan. Continuing talks between the ISI and CIA show that the relationship hasn’t ended in divorce. But the combinations of lawsuits and media links show that things are not going to get better any time soon.

Published in The Express Tribune, July 30^th,  2011.