"In the view of the United States, the Inter-Services Intelligence (ISI) is entitled to immunity because it is part of a foreign state within the meaning of the FSIA (Foreign Sovereign Immunities Act)," Stuart Delery, the Principal Deputy Assistant Attorney General told a federal court in New York on Dec 17 in a submission on a case filed by relatives and family members of the American victims of the Mumbai terrorist attacks.
"Furthermore, the Department of State has determined that former directors-general Ahmed Shuja Pasha and Nadeem Taj are immune because plaintiffs' allegations relate to acts that these defendants allegedly took in their official capacities as directors of an entity that is undeniably a fundamental part of the Government of Pakistan," Delery said in his 12-page affidavit.
"Because foreign sovereign immunity and foreign official immunity provide an adequate basis upon which to dispose of this case with respect to the ISI and former Directors General Pasha and Taj, the United States takes no position on the political question doctrine issues that are also presented in this case," the affidavit said in its footnote in response to the court case filed by American survivors of the Mumbai terrorist attack.
Claiming that the ISI of Pakistan was involved in the planning and execution of the Mumbai terrorist attack, these American survivor of 26/11 and family members of the victims had filed a case against the ISI chiefs, Ahmed Shuja Pasha, Nadeem Taj and its other officials, besides Lashkar-e-Taiba leaders, Mohammed Hafiz Saeed, Zaki ur Rahman, Sajid Mir and Azam Cheema. On Nov 26, 2008 in Mumbai, terrorists did well coordinated shooting and bombing attacks in which 166 people, including six Americans, were killed and 308 others wounded.
In fact as many as four identical court cases were filed including one by Linda Ragsdale, on Aug 12. A resident of Tennessee, Ragsdale was shot in her back by one of the LeT terrorist at the Oberoi Trident hotel in Mumbai. She, however, survived that attack.
"In making this immunity determination, the United States emphasises that it expresses no view on the merits of plaintiffs' claims. The United States strongly condemns the terrorist attacks in Mumbai and continues to believe that the Islamic Republic of Pakistan must take steps to dismantle Lashkar-e-Taiba and to support Indias efforts to counter this terrorist threat," the affidavit said.
The US government argued that in its view FSIA requires that the Inter-Services Intelligence Directorate of Pakistan be accorded immunity from this civil suit because the ISI is a fundamental part of the Government of Pakistan itself and no exception to immunity applies.
"Moreover, the Department of State has determined that the former Director Generals of the ISI, Ahmed Shuja Pasha and Nadeem Taj, enjoy immunity, a determination that is not subject to judicial review. In making this determination, the United States emphasises that it expresses no view on the merits of plaintiffs' claims," the affidavit said.
The American relatives and victims of Mumbai terrorist attacks in their filings had alleged that the ISI controlled and coordinated the terrorist attacks and provided critical planning and material support to the attackers. They also contend that former Directors General Pasha and Taj provided material support and resources to the attackers, recruited participants and planned the attacks. As such the American survivors and relatives of the victim had sought compensatory and punitive damages.