Pakistan must take steps to dismantle LeT and support India's efforts to counter this terrorist threat, it told the federal court: "In the view of the United States, the ISI is entitled to immunity because it is part of a foreign state within the meaning of the FSIA (Foreign Sovereign Immunities Act)."
"Furthermore, the Department of State has determined that former Directors General (of ISI) Pasha and 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," Stuart Delery, Principal Deputy Assistant Attorney General, said.
"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," he said.
Delery stated this in a 12-page affidavit, which was submitted to the court on December 17, in response to the case filed by relatives and family members of the American victims of the Mumbai terrorist attacks.
Claiming that the ISI of Pakistan was involved in the planning and execution of the Mumbai terrorist attacks, the American survivors of the strikes and family members of the victims had filed their case against Pasha, Taj and other ISI officials, besides the LeT leaders, including its founder Mohammed Hafiz Saeed and its operations commander Zakiur Rahman; and Sajid Mir and Azam Cheema.
In fact as many as four identical court cases were filed, including one by Linda Ragsdale, a resident of Tennessee who was shot in her back by one of the LeT terrorists at the Oberoi Trident hotel in Mumbai.
"In making this immunity determination, the United States emphasises that it expresses no view on the merits of plaintiffs' claims," the affidavit said.
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 India's efforts to counter this terrorist threat," it said.
The US government argues that in its view FSIA requires that the ISI be accorded immunity from this civil suit because the spy agency 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 Directors General 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 emphasizes 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 claimed that the ISI controlled and coordinated the terrorist attacks and provided critical planning and material support to the attackers.
They also claimed that 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.
Lawyers of ISI and its directors had argued that they enjoy immunity in the case.
It was on April 23 this year that the court had asked the US government to clarify its position. December 17 was the last date for that.
The State Department has also written a letter to the Department of Justice notifying of its determination that both Pasha and Taj enjoy immunity in the 26/11 case.