Exclusive: 26/11 Chabad victims’ lawyer hopes to question Headley, impose damages on LeT, ISI

A US court, on Wednesday, summoned the chief of Pakistan’s Inter Services Intelligence (ISI), Lieutenant General Ahmed Shuja Pasha, the head of the Lashkar-e-Taiba (LeT), Zaki ur Rahman Lakhvi, LeT operative Azam Cheema and Jamaat-ud-Dawa chief Hafiz Saeed, to answer the lawsuit filed against the ISI and the Pakistan-based terrorist group by relatives of Rabbi Gavriel Noach Holtzberg, who was killed with his wife, Rivka, and four others at the Chabad Lubavitch Jewish center at Nariman House in Mumbai, in the course of the terrorist attack on the city two years back. Pasha’s predecessor Lieutenant General Nadeem Taj and ISI officials Major Samir Ali, and Major Iqbal have also been summoned to respond to the charges.

The Holtzbergs’ infant son, Moshe, survived the attack after he was snatched to safety by his nanny, Sandra Samuel. The plaintiffs have asked for a minimum of USD 75,000 in damages for each of the victims, which is the minimum threshold for bringing the jurisdiction of the US Federal Courts into play. Actual damages would be decided by a jury.

In an exclusive interview, StratPost spoke to the lawyer representing the plaintiffs in this matter, James P. Kreindel, who remained hopeful of obtaining compensation from the LeT and ISI, even though he doubted Pasha would ever appear in a US Court. “I doubt it, but you never know. When we sued Libya in the Pan Am 103 case, Libya appeared and defended. So at this point we don’t know who will decline to appear, and so that we’ll proceed by way of a default, or appear. And we also don’t know which of the defendants or witnesses will appear.”

In case of non-appearance, the court could well pass a judgment in absentia. “When a defendant doesn’t appear, the plaintiffs can take a default judgment. The court will enter a default judgment. And the plaintiff will try to enforce that default judgment wherever the defendants’ assets can be located,” said Kreindel.

He says he would also like the chance to depose LeT agent David Headley, who has admitted his complicity in the 26/11 attacks on Mumbai. “Headley’s statement tells not only of the planning and his work for the LeT but the involvement of ISI in reconnaissance trips and providing logistical support and financial support to the LeT terrorists,” says Kreindel.

“We’re not going to do anything to interfere with the ongoing criminal case. The criminal case has to take priority over a civil lawsuit. But I’d very much like to be able to take his deposition and ask him questions under oath,” he says, adding, “I’d like to obtain even more information than what is in the statement.” He’s hopeful that such a deposition could happen at an appropriate time, but clarifies, “It’s not at all essential for our lawsuit. Our case can move forward with or without it.”

The nature of this lawsuit, with foreign entities as respondents is not without precedent and US law allows for such suits to be pursued. “Under the Anti-Terrorism Act, the US plaintiffs – family, the personal representatives of the US victims or a US citizen can sue for a terrorist attack, even if that attack is committed abroad. US courts have jurisdiction to hear the claims of US plaintiffs or family of the US victim for a terror attack,” explains Kreindel, saying these suits can be filed against ‘terrorists who perpetrate an attack and any entity that provides material support for the terror attack’, like financial or logistical assistance.

“We’ve handled a number of terrorist cases. I’ve spent 20 years on the Pan Am 103 case and for nine years we’ve been doing the 9/11 case against the countries that were state sponsors of terror, namely Sudan and Iran – banks, charities and individuals. We have jurisdiction not simply because the attack happened in the United States but because it was US citizens that were murdered,” he says, and also points out that these lawsuits do get results for the families of the victims. “In the case of Pan Am 103 we obtained 2.7 billion dollars – 10 million dollars for each of the 273 victims,” also adding, “We wouldn’t be doing it unless I firmly believed that we will obtain a meaningful, realistic recovery for the victims.”

This is because if found liable, the accused entity can find its assets subject to damages imposed by the court. “It’s not easy, of course. If it’s LeT, we can obtain a judgment and then try and satisfy that in any country that recognizes US judgments, where LeT has assets. And LeT does have assets around the world,” points out Kreindel.

He admits that suing the ISI or its officials isn’t going to be simple either, but remains confident and clarifies their suit is not against the Pakistani state. “Under US law, individuals in a government agency do not enjoy the sovereign immunity that the government enjoys. So you can sue individuals,” he says, adding, “The ISI is an agency of Pakistan – that’s true. Our position is that if the agency supports a terror attack, it must be operating outside the course and scope of its authority. Because no government agency is lawfully allowed to commit murders or support murders. If we are litigating that issue, that’s going to be our position. No state or an agency of the state can engage in murders and terror attacks, lawfully. By definition, any legitimate government – one of its functions is to enforce the laws.”