In America’s courts

Published: July 29, 2011
The writer is a correspondent for 
The Express Tribune

The writer is a correspondent for The Express Tribune

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 30th,  2011.

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Reader Comments (17)

  • frank
    Jul 29, 2011 - 9:08PM

    The vast majority Pakistanis look forward to the day when Pakistan and the financially and morally bankrupt superpower finally part ways.


  • cautious
    Jul 29, 2011 - 9:53PM

    <pAn American citizen was arrested for violating American laws which required him to disclose that he received lobbying money from a foreign source. ISI didn't break any law nor is being charged with any crime.Recommend

  • Raja
    Jul 29, 2011 - 10:53PM

    In 1994 then US President Bill Clinton had written a warm letter to Ghulam Nabi Fai. The three-para letter, with an ‘auto-signature’ of President Clinton began with the unusually friendly ‘dear Ghulam’ greetings, sparked a major controversy in January 1994 as it suggested a change of US policy towards Kashmir.

    Fai was very successful in tilting US policy and opinion towards Pakistan.

    Ref: ‘Dynamics of human rights in the US foreign policy By Sanjay Gupta’ page 187


  • Abbas from the US
    Jul 29, 2011 - 11:03PM

    @ Frank

    No! What you mean to suggest is that the vast majority of the Pakistani elite wish to see the US financially bankrupt which is really speaking for a minority. This is not happening in the this century. It is still America’s century. The average Pakistani is not aware, nor is made aware of to what extent America has extended help both in the economic sphere as well as in militarily terms. Could any country outdo the US in actual Dollar terms when Pakistan was struck with the earthquake. You and the rest of the elite have wishful thinking that the Chinese will step in wean Pakistan away from needing US aid.
    China may have two Trillion Dollars in US treasury bills, but as a weak creditor its has no other option but to continue to lapping up US treasury bills and supporting US economic recovery.
    As for Pakistan though I have immense personal love for it, but anyone with the ability to see thru this nonsensical argument can see, it is led and controlled by forces that are different from what appears on the surface.
    In the end if the writer of the article thinks that Pakistan is being done gross injustice, with the way the US law is being used to Pakistan’s disadvantage. The reason is Pakistani Americans should be driving the lobbying much like Fai did without recieving funding from sources outside much like Fai did. There are other successful groups like Jewish Americans, Indian Americans who pretty much make use of the laws to their own advantage and highlight issues to the advantage of the societies that they have love for, and originate from without disrespecting and violating US laws.


  • G. Din
    Jul 29, 2011 - 11:26PM

    The vast majority Pakistanis look forward to the day when Pakistan and the financially and morally bankrupt superpower finally part ways. “
    When that happens, “the financially and morally bankrupt superpower ” will in all probability be relieved no end but it will be a long journey for ” vast majority Pakistanis” down the tube, for sure!


  • Wasil Arain
    Jul 29, 2011 - 11:35PM

    How does author induct public opinion in a matter of law. American may be criticised for many a hing but by and large this is nation of Law unlike Pakistan where the corrupt incumbents are trfling with the orders of supreme court inceasently.


  • Cynical
    Jul 30, 2011 - 12:10AM

    @ All US baiters

    Read @cautious’s post and try to understand the import. No amount of semantic jugglery will change the ground reality. Fai is an US citizen and is framed under US laws, so what the Pakistanis,Indians and Kashmiris got to do with this? Nothing.


    … Pakistan is not financially and morally bankrupt? that’s good news and reassuring in that order.


  • Cautious
    Jul 30, 2011 - 12:48AM

    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

    The case against Fai (an American citizen) doesn’t hinge on diplomatic immunity and there is NO CHANCE that this case will be dismissed. He received money from a foreign govt and didn’t disclose it — the responsibility for disclosure is on Fai not the ISI. The ISI isn’t being charged with a crime and obviously has no need to hire lawyers. In short — the author is wrong on both accounts and apparently hasn’t done his homework.


  • Mirza
    Jul 30, 2011 - 12:49AM

    You said it like it is! It is between a US citizen and the US govt and nobody else. The US court would do justice with its citizen we do not need to worry about their courts. in fact we should stay away from it like we say, I would not touch it with a ten foot pole. It is toxic and keep away. Is Pakistan govt going to support Qasab in his appeals? He is a Pakistani citizen and Fai is not!
    Thanks and regards,


  • Ali
    Jul 30, 2011 - 1:26AM

    Will the chief of CIA ever appear before a Pakistani court? If not, why should ISI chief?


  • Venky
    Jul 30, 2011 - 1:26AM

    The ISI thinks that they are a different breed and can outwit any one in the world. But the truth is that they are being outwitted.This is what happens if you indulge in larger than life role.


  • Meekal Ahmed
    Jul 30, 2011 - 2:28AM

    There are a lot of shady characters operating in the shadows.


  • Jul 30, 2011 - 8:47AM

    Pakistan hates it when people hint at their double standards.


  • FactCheck
    Jul 30, 2011 - 1:45PM

    If you break US laws you go to jail and when you break National Security you go to jail and keys thrown away. In the myopic world you live, you seem to think this is Pakistan specific and you have not heard of an Israeli informant put in jail for life and Israel has been trying to get his release under presidential pardon for past 20 years.


  • mind control
    Jul 30, 2011 - 6:11PM


    Frankly, according to this report, wide majorities in the Federally Administered Tribal Areas disapprove of al Qaeda (over three-quarters), the Pakistani Taliban (over two-thirds) and the Afghan Taliban (60 percent).

    And even then we find that Al Qaeda Chief was well enconsed in Pakistan and TTP and Haqqani network are still going strong.

    I suspect, what the ‘vast majority’ thinks counts for little in the Islamic Republic.


  • Abbas from the USA
    Jul 30, 2011 - 8:18PM


    Thats absolutely right in fact Fai a US citizen who was lobbying the US Administration officials using foreign money that was delivered to him with a 99% possiblity by the Pakistani intelligence agencies. Fai before being released on bail has actually admitted recieving foreign funding for his lobbying activities. For this very reason he may not be punished to the same extent as the case you cite above.

    Jonathan Pollard a US citizen on the other hand actually crossed a red line when he actively spied for Israel on US defence capablities. Not even Bush who was influenced by the Neo Conservatives ideologically was able to take a decision on a Presidential Pardon for this individual. A presidential pardon is one favor that a US President in the dying days of his presidency can return to anyone or group that has either politically or monetarily supported him during his election campaign or during the course of his Presidency. Though AIPAC which has considerable influence with US politicians. The reason is off course elected officials often find substantial funds made available to them during the electoral process thru a very legal process as well as the Israeli establishment actively sought some kind of an arrangement where Pollard would be released.


  • Striver
    Aug 1, 2011 - 10:20PM

    Pakistani victims of the drome attacks are bringing a case against the CIA with the help of a Pakistani Lawyer and a well known charity headed by a British lawyer.

    Things are going to get interesting in the near future.


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