Dr Fais arrest legally justified?

According to a US federal indictment filed in a Virginia Court, a Fairfax county resident was charged with funnelling millions of dollars from Pakistans government and military spy agency, the ISI, through a local non-profit organisation in an effort to gain political influence in America. The charges were announced by Lisa Monaco, Assistant Attorney General for National Security; Neil MacBride, US Attorney for the Eastern District of Virginia; and James McJunkin, Assistant Director in charge of the FBI Washington Field Office. The NGO in question is the Kashmiri American Council (KAC), a Washington-based institution created in 1990 by Dr Ghulam Nabi Fai. As expected, the matter created a great deal of interest in the relevant Pakistani and US political and legal circles, on account of the manifest significance of Kashmir for the Pakistani and subcontinental political situation. Quite apart from this fact is the realisation that the current regional political realities are capable of various interesting perspectives. Broadly speaking, the argument of some partisans was that that the accusation was politically-motivated, as there was plenty of evidence about the deteriorating Islamabad-Washington relations, especially since the Navy SEALs raid in Abbottabad. The central thematic allegation was that Fais council was funded by the ISI in violation of the US law, which regulates lobbying for foreign countries, to exert influence on the Congress, to swing the Kashmir debate in Pakistans favour. An analytical probe would straight away provide us with these simple questions: Did the ISI fund these activities? Did Fai use this money for the avowed purposes or for personal enrichment? But whether the ISI provided funds and whether he used some of the funds for his own purpose must be legally proved, which surely depended upon the evidence that the prosecution offered to support any such accusations. However, when the case was filed, this particular angle was not included, since the US administration was only trying to prove in these proceedings that the factum of unlawfully indulging in lobbying without following the due process of law mandatory requirements. Was the FBI unaware about it all these years? Not really possible. The American agencies would certainly keep track of such monies and funds, so why were they quiet all along? The KAC functioned openly and is certainly not an underground movement. It puts up petitions; it has a Google groups forum; there is a Facebook page of its affiliates; its conferences are held in university and congressional halls and invitation is free. So the huge amount of money discovered 'now through bank transactions suspected to have been used by Dr Fai should prompt the FBI to question the recipients and investigate as to how it has impacted on the US policy. However, the focus of this indictment was entirely on the Fai-ISI link. Is it possible to contend that the ISI virtually runs Pakistans strategic and foreign policies and that the country is a beneficiary of American funds, ergo, the ISI is by default propped up by the US financially and, given the strategic political dynamics, on the ground too? But this scenario raises more difficult questions to ponder over. The most fundamental question is: Why did the ISI choose Fai for a job patently beyond his most manifest and limited qualities? One has simply to look at his credentials to evaluate his more than obvious limitations in education, style and articulation, as a speaker or adroit negotiator. Surely, this is not a simple case of getting a bad guy. It is about creating more bad guys, and this is notwithstanding Fais role in the Kashmir issue. With that assumption, the ultimate answer would be that in the typical Pakistani political milieu, it is not honesty nor credentials that are the leading factors for appointment, rather it is the trust of the benefactor, which would ensure that its own interest are fully protected by his appointee. According to the affidavit filed, the US alleges that although the council portrayed itself as a Kashmiri organisation, it was actually one of three Kashmir Centres that was entirely run by the Pakistani government and ISI. Also, the court record states a second confidential witness, who told the FBI investigators that the ISI had been directing Fais activities for the past 25 years. It further states that when questioned about this in March 2007, Fai allegedly stated that he had never met anyone who was affiliated with the ISI. However, it is matter of record that in March 2010, the Justice Department sent Fai a letter notifying him of his possible obligation to register as a foreign agent. In his written response to the Justice Department, Fai asserted that neither he nor KAC had ever engaged in any activities for or provided any services to Pakistan or any foreign entity. Again, in a March 2011 interview with the FBI, Fai denied having any relationship with the ISI. Anyway, the matter of concern in Islamabad should be the potential threat to the embattled image of the ISI and the national military high command. n The writer is a barrister at law (US & UK), and a senior advocate of the Supreme Court.

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.


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