Hatchet Jobs and Cover Ups

GHQ

I don’t usually agree with Ansar Abbasi, but when someone is right…they’re right. The Jang columnist recently wrote about the problems caused by intelligence agencies operating with complete lack of oversight. Little could he know how his thesis would be proven correct over the next few days as story after story added damning evidence against agencies.

After years of denials, ISI is finding itself facing new charges of support the 26/11 terrorist attack. Former CIA director Michael Hayden has now publicly revealed ISI’s involvement in his new book. The ex-US intelligence chief says that he was personally told of ISI’s involvement by none other than the DG-ISI Shuja Pasha.

“We had no doubt that the attack was the work of LeT, and there was mounting evidence that preparation for and direction of the attack took place from within Pakistan, where LeT enjoyed the protection and support of ISI,” Mr. Hayden said.

Pasha, who had come to ISI only a few weeks earlier and had no previous intelligence experience, came to the U.S. on Christmas Day and spent most of the next afternoon in his office.

“He worked carefully from notes. His investigation had revealed that some former ISI members were involved with Lashkar-e-Taiba [no surprise there]. Pasha admitted that these unspecified [and still uncaptured] retirees may have engaged in some broad training of the attackers, but he was characteristically vague about any detailed direction the attackers had gotten during the attack via cell phone from Pakistan,” Mr. Hayden wrote in the book.

This admission comes the same day that PM’s Foreign Affairs Adviser Sartaj Aziz admitted that one of the mobile numbers linked to Pathankot attackers was traced to Jaish-e-Mohammad headquarters in Bahawalpur. Once again, this admission comes after security officials strongly denied any links between the ISI-supported militants group and the terrorist attack.

These revelations follow a third shocking admission. Yesterday, former DG-FIA Tariq Khosa wrote a damning piece that exposed the entire ‘memo-gate’ saga as a drama written by GHQ and directed by ISI to neuter the civilian government.

With these three revelations facing us now, we should think about Tariq Khosa’s words of warning.

No heads rolled after the OBL raid; no one had the courage to ask the military elite some tough questions.

The establishment has acquired the art of turning its strategic follies to triumphs. It is this deep state that has curtailed and trimmed democracy, ensuring the country stays rigged in favour of a small but self-aggrandising elite. And until that changes, democracy in Pakistan will remain imperiled.

26/11, Pathankot, ‘Memogate’. These can all be categorised with other strategic blunders: Osama bin Laden living in the shadows of PMA Kakul. Kargil fiasco. Operation Searchlight. The list goes on and on and on. We have allowed agencies to operate with no oversight because they claim it is a matter of ‘national security’. But it is exactly this that has made the nation less secure. Agencies failed policies and strategies have made our neighbors suspect us and have allowed extremism to grow unchecked into the monster that we face today. To paraphrase Tariq Khosa: “Until that changes, Pakistan will remain imperiled.”

Chief Justice’s Bad Week Gets Worse

If Chief Justice Iftikhar Chaudhry was having a bad week when he found his son dragged before the Court and his own name dragged through the mud of media talk shows, things only got worse when he was handed a sealed envelope containing the report of the judicial commission formed to investigate the memogate scandal. The Justices appointed to the commission failed in a big and serious way. They stepped so far outside their authority that they poisoned any future proceedings, basically ensuring that Husain Haqqani could not possibly receive a fair trial in Pakistan. And the Chief Justice knows it.

Here’s what happened. In Constitution Petitions No.77 to 85 and 89 of 2011, the Supreme Court constituted a Commission with a very specific and narrow mandate:

…to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen…

That’s it. Three findings of fact: The (1) origin, (2) authenticity, and (3) purpose of the memo. That’s all the Commission was formed and authorised to investigate. Now, it was never going to be an easy job. Unwinding the constantly changing story of Mansoor Ijaz – not to mention regularly changing the rules to accommodate his whims – was no small task. But when they sealed the envelope containing their report, these three Justices also sealed the fate of the entire controversy.

In their findings, the Justices wrote that “the Memorandum was authentic”, “Mr Haqqani was the originator”, and “Mr Haqqani…wanted to create a niche for himself making himself forever indispensable to the Americans…” This was the extent of their mandate, and should have been the extent of their findings. But the Justices couldn’t help themselves, and they went on…

…He lost sight of the fact that he is a Pakistani Citizen and Pakistan’s Ambassador to the United States of America, and therefore his loyalty could only be to Pakistan.

(3) Mr. Haqqani’s by offering his services as part of a proposed ‘national security team’ to a foreign government, voicing the ‘great fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’ and thus seeking to bring ‘Pakistan’s nuclear assets under a more verifiable, transparent regime,’ stating that ISI maintains ‘relations to the Taliban’ and offering to ‘eliminate Section S of the ISI and to help ‘ pigeon – hole the forces lined up against your interests’ created fissures in the body politic and were acts of disloyalty to Pakistan, that contravened the Constitution of Pakistan.

That’s not an answer to any of the three questions the Commission was authorised to report on. It’s not even a finding of fact – it’s an application of the law. The Commission not only exceeded their authority, they usurped the authority of the Court by finding facts and then applying the law without filing charges or holding a proper trial.

The Commission later says that Husain Haqqani “has to answer about the findings so recorded by the Commission”, but because they have already pronounced him guilty of “acts of disloyalty to Pakistan, that contravened the Constitution”, how can he possibly answer? He has been convicted in absentia with no access to due process.

Whether or not the factual findings of the Commission are accurate, by casting judgment against Husain Haqqani absent any charges or trial, they have undermined the judicial process completely and ensured that any outcome will be forever tainted. If Haqqani is acquitted by the Supreme Court, the Chief Justice will be undermining the credibility of not one but three High Courts. If Haqqani is convicted, though, it will be stained with the appearance of a ‘Kangaroo Court’ that persecuted a man who found himself on the wrong-side of a powerful military intelligence agency for writing a book critical of their ties to religious militants.

As the Chief Justice desperately tries to convince the nation that he is presiding over a legitimate court of justice and not a political tribunal that protects its favourites while relentlessly hounding its enemies, he is handed a sealed envelope containing one of the greatest judicial mistakes the Court has seen since, perhaps, a Supreme Court Justice gave legitimacy to Gen. Musharraf’s military coup by giving his oath under the dictator’s 1999 Provisional Constitutional Order (PCO)…

New problems for the Chief Justice

Mahmood Adeel in his piece last week made an interesting observation about our Chief Justice regarding his son’s case. He pointed out that it seemed CJ had already made up his mind regarding the outcome of the case and it sounded as if he was leading the witnesses to “provide the testimony needed to give the decision already made”. This made me think that other controversial cases are also facing problems of credibility due to lack of transparency and questions of undue influence at the outset of the case.

A similar incident that can be linked to the idea of whether the CJP is influencing a trial outcome already decided is the neverending memogate case. While there have been many questions regarding the special treatment granted to Mansur Ejaz and his secret meetings with top agency officials, the Chief Justice has also found himself at the center of controversy about the contents of a secret letter Mansur Ejaz sent to the CJP and the Supreme court during the memogate saga. As reported by various newspapers earlier this year, Ejaz sent a letter to the CJ the contents of which Chief Justice wanted to remain sealed. Next thing, Masur Ejaz was permitted to give his testimony via video link from London and Husain Haqqani was permitted to leave Pakistan. Many are now asking about the contents of this top secret letter known only to Mansur Ejaz and the CJP which appears to have changed the course of the case.

Today, this question becomes even more alarming with media reporting that the Chief Justice is forming a bench for hearings on memogate charges based on a sealed probe report by the memo commission. First a secret letter influences the Court, now a secret report constitutes a larger bench. If justice is truly being served why is it being done in the dark behind closed doors?

The higher judiciary which has been considered as the institution devoted to impartial justice has found itself facing criticism for the CJP’s hesitancy to remove himself from hearing a case against his own son, and even then only after giving remarks that could influence the outcome of the case. This combined with the noted lack of dissent on the bench and the lack of transparency in memogate casew have created doubts about whether the Supreme Court is following the constitution or whether it has become the private tribunal of one man.

Memo saga heads in different direction

Syed Yahya HussainyAlthough the anti-PPP publicists have renewed their claims about Mansoor Ijaz’s version of events about the memo saga looking very believable, the ruling party remains confident that this will be just another example of over-enthusiastic PPP haters celebrating the government’s difficulties while using the shoulder of the judiciary.

“Already, what started out as an issue expected to bring down the Zardari government has been reduced to a ‘get Husain Haqqani’ campaign,” said one observer.

Instead of the facts about writing of the memo, the conduct of Pakistan’s former ambassador to the US, Husain Haqqani, and the memo commission’s insistence that he return to Pakistan instead of being allowed to record his statement by videoconference have now become the main topics of discussion.

Mansoor Ijaz has so far not handed over his BlackBerry handset for forensic examination, Haqqani’s illness has given him an additional reason besides personal security concerns to say he cannot return to Pakistan right now. And the issue of equal treatment for the two witnesses before the commission has yet to be settled by the Supreme Court.

Even the claim by anti-PPP hardliners that Haqqani’s missing BlackBerry handsets could pose a national security threat indirectly supports Haqqani’s position that his handsets could not be handed over even if found.

PPP supporters say that even after the subdued appearance of former ISI chief Lt General (r) Ahmed Shuja Pasha before the memo commission and the critical remarks by commission members about Haqqani, there is just not enough evidence to substantiate the story that is believed by few people other than those who have persisted with supporting Mansoor Ijaz’s stupendous claims.

The memo saga started unfolding in October last year, with some forces making it a high stakes game for the government. It slowed down in the middle and now towards its conclusion seems set to witness another twist with stakes rising for the other side and possibly Haqqani, government supporters say.

Haqqani has now thrown the ball in the court of the highest esteem, asking it to provide him equal treatment when it comes to deposing before the memo commission and facilitate him to do so through a video link from London or Washington. Sources say this move has the backing of the top PPP leadership, which wants to create a new issue that can be used in its long-running battle with the judiciary.

While on the face of it, the memo commission is asking questions about Haqqani’s alleged non-compliance with its orders, it has to be prepared for questions that might be asked about its impartiality, especially at the international level. The memo commission was tasked by the Supreme Court to collect evidence and it gave the facility of recording statement by video link to Mansoor Ijaz on grounds that his life would be threatened by travelling to Pakistan.

Now Haqqani has taken the same position, asking the Supreme Court to consider threats to his life equally seriously to the threats claimed by Mansoor Ijaz, a US national.

The Supreme Court will most likely hear Haqqani’s petition when his lawyer Asma Jahangir returns on April 16 from her travels abroad. Until then, the memo commission will most likely continue to push Haqqani’s lawyers to ask him to appear before the commission and demand other actions from Haqqani. The former ambassador, however, will seek protection of the age-old principle that the onus of proving guilt lies with the accusers and if guilt has not been proved and no legal criminal proceedings initiated against Haqqani, the memo commission’s findings have little significance except to generate media headlines.

In any case, legal experts point out that the commission is a fact-finding probe and not a court conducting a trial. Its job is to find out what may have happened and not to ascribe guilt or innocence as no FIR has been registered, no charges have been filed and it is not even clear if any law has been violated by anyone. After PPP Chairman Bilawal Bhutto Zardari’s emotional speech on his grandfather’s death anniversary reminding everyone that Zulfikar Ali Bhutto was sentenced to death as a result of a wrong decision by the judiciary, the PPP is willing to engage in a legal-political battle with the judges of the superior courts.

It is in that background that Haqqani had written a letter to the chief justice, which has been kept confidential, though the court said that such letters should not be directly written to the court.

At the beginning of the memo case, a letter by a Pakistani-Canadian had been turned into a petition by the court. The ruling party plans on highlighting every incident where the judiciary’s attitude towards the PPP is different from that towards other parties, sources say.

Haqqani’s lawyers assert that the media trial against him even without any charges being filed or proof being put on record has created an extremely hostile environment for him in Pakistan. Hostility towards the former ambassador can be found among extremist groups as well as in the ranks of the state machinery, which would be expected to protect him. The then ISI DG, they say, rushed to judgement based on only one meeting with Mansoor Ijaz showing how vulnerable Haqqani might be upon immediate return to Pakistan.

Even during his statement, General Pasha did not go beyond reiterating what he had already said in his affidavit before the Supreme Court in January.

He offered no evidence independent of Mansoor Ijaz’s claims, which he says he believed.

He agreed with Haqqani’s lawyer during cross-examination that Mansoor Ijaz was anti-Pakistan and anti-ISI. While some may find comfort in Pasha appearing before the commission as a sign of the case building up against Haqqani, his statement added little to the claims of Mansoor Ijaz in terms of proving anything.

According to Haqqani’s lawyers, the memo commission has a huge issue at hand, which cannot be dealt with by making remarks about Haqqani’s refusal to appear in person or raising questions about his health. Contrary to the perceptions built up over the months, Mansoor Ijaz’s statement that was seen as the key to the whole issue had proved very weak and uncorroborated in terms of the law of evidence.

Mansoor Ijaz admitted that he had no email or BBM message from Haqqani regarding the memo and his entire claim rests on linking BBM messages to telephone conversations. In his own written statement, Haqqani has given a totally different account of the same phone calls, which he says were just a small part of hundreds of phone calls he made in May 2011.

General Pasha said in his cross-examination that while Mansoor Ijaz showed him BBM screen shots, he refused to hand over to him any evidence.

Several of Mansoor Ijaz’s statements before the commission have been challenged by people not directly connected to the memo affair, raising questions about whether memogate’s star witness has a habit of exaggerating and manipulating communication.

Former US president Bush’s adviser, David Frum, wrote an article in Newsweek and The Daily Beast saying Mansoor Ijaz had “lied” before the commission about sending him a legal notice over his criticism against the American businessman of Pakistani origin.

Haqqani’s lawyers say that the commission also has to decide if it can rely on the testimony of a witness who made some laughable claims during the proceedings. Many of such claims even the commission had to reject as unverified and unreliable. Take for example the transcripts of communication between US helicopters and Pakistani ATC on May 2, 2011, as well as claimed communication between two high offices in Pakistan. General Pasha effectively supported Haqqani’s written statement when he said that there was no likelihood of a coup in May 2011, contrary to the claims of Mansoor Ijaz.

It is also now becoming apparent that the commission might not go ahead with the idea of expensive forensics examination of Mansoor Ijaz’s BlackBerry handset. The head of the commission commented at one hearing that forensics examination is not required at this stage. Sources say most experts in London approached by the commission’s secretary expressed inability to verify the data as suggested by Mansoor Ijaz and widely believed by his supporters.

This is the reason that the commission is once again relying on putting pressure on Haqqani to voluntarily write to Research in Motion (RIM) to secure verification of Mansoor Ijaz’s data.

A valid question that arises from this demand is how anyone can order someone to do something that is meant to be voluntary and would RIM treat as voluntary a letter that is written under orders.

The memo commission had started its proceedings by targeting BlackBerry manufacturers, RIM, to provide it with data.

Mansoor Ijaz and his lawyer had claimed that RIM could provide all the records but it was discovered later that RIM does not maintain records of communications beyond three months. It seems on the issue of forensics too, the presumptions of those who wanted to hang Haqqani, and even President Asif Zardari, on the basis of examination of BlackBerry handsets are discovering that it might not be easy to prove Mansoor Ijaz’s claims through forensics either.

Meanwhile, Haqqani has submitted complete and unedited detailed itemised telephone bills for both his BlackBerry handsets for the entire year of 2011.

Lawyers say, these records prove his assertion that Mansoor Ijaz was a “peripheral” acquaintance and not a friend. For example, in May 2011, Haqqani’s phone bills show 875 incoming and outgoing phone calls on his two telephone numbers, only four of which are to or from Mansoor Ijaz’s number.

Similarly, there are 1,321 text and data items on the bills for May 2011, when Ijaz says he sent the disputed memo, and his number represents a miniscule part of these exchanges.

From the PPP’s point of view, Haqqani is just the right person to create negative perceptions about the judiciary at the international level. The former ambassador is widely supported in the US and western countries even though he has been criticised at home. The Supreme Court’s decision to bar him from travelling abroad was criticised by Haqqani’s international supporters, including the International Commission of Jurists.

Even if Haqqani fails to get the Supreme Court to support his request for recording statement by video link, the PPP leadership will be able to exploit this in creating negative perceptions about the judiciary internationally, sources claim.

On the face of it, Haqqani has simply sought legal redress by approaching the Supreme Court. The opportunity for him to seek the intervention of the Supreme Court was provided by the memo commission. In its proceedings on March 18, when Haqqani was present in London and had requested that his statement be recorded there and then, the commission had taken a position that it was the Supreme Court that had bound Haqqani to be present in Islamabad, and that the commission did not have the competence to undo that.

Thus the commission opened the gate for seeking further interpretation of the Supreme Court order of January 30, 2012. Haqqani might gain most by closing the chapter of memogate even if it entails coming to Pakistan and recording his statement. But the PPP leadership is relishing the opportunity of showing how its opponents rushed to judgement and involved the judiciary in the matter. The memo commission’s adverse remarks about Haqqani, his supporters say, will only benefit him in proving that the commission was predisposed negatively towards him.

Ironically, it is now the PPP leaders who want memogate to drag on so that there are more and more negative international comments about the judiciary and alleged violations of Haqqani’s rights are made an international issue to embarrass the party’s opponents.

This piece was published in Daily Times on 11 April 2012.

Memogate Mindset

As the memogate saga continues to drag on long after its expiration date, it occurred to me that Memogate is about much more than the accusations underlying the case. How else could one man with quickly sinking credibility manage to so completely capture the attention of the nation? What I’m proposing, though, is not that memogate is a conspiracy – I don’t know if it is or it isn’t. What I’m proposing is that memogate reflects a mindset that cripples our ability to get things done.

In this mindset, despite the bizarre claims, the countless contradictions, and the weak and unimpressive ‘evidence’, we get swept up by a dramatic narrative in which we chose a villain and then become fixated on catching the villain and punishing him. In the process, we ignore all facts and reason. In the memogate case, Dawn captures this perfectly:

Three serving chief justices of high courts are spending long hours wrestling with borderline silly claims and counter-claims in Islamabad while the infinitely more serious work of managing high courts weighed down by myriad administrative problems has been sidetracked.

But it’s not just secret memos that we allow to distract us from pressing issues. Drones, too, have become a fixation of the national mindset. You don’t have to support drone strikes to realize that they aren’t the biggest threat to Pakistan right now. Facts are facts, and the facts are that while hundreds of innocents have been killed by by drones, but over 30,000 have been killed by extremists. But you wouldn’t know that from the way we talk about the war on terror here. We turn a blind eye when militants hold public rallies, but we suspect every American of being a Raymond Davis.

Imran Khan says the killing of Osama bin Laden was the greatest humiliation for Pakistan, but what about the fact that the world’s most wanted terrorist not only felt safe living for years in the shadow of Kakul. Was that not a greater embarrassment? Dr Afridi has been charged with treason for helping expose the terrorist leader, but nobody has asked who helped this terrorist to violate Pakistan’s sovereignty and expose us to international humiliation.

Imran Khan termed the killing of Osama bin Laden as “cold blooded murder”, while his good friend Munawar Hasan terms Osama as “the greatest martyr” – but martyr for what? Certainly not for the Islam that is practiced by hundreds of millions of Pakistanis – a humble, peaceful, merciful, loving Islam. We have picked our villain, and it is America. Facts and reason be damned.

This mindset is holding us hostage. Just as the continued wasting of precious time and resources on the word of a single discredited source keeps us from relieving the suffering of countless Pakistanis who are crying out for justice, our obsession with America as a villain keeps us from seeing the forces who are actually carrying out attacks against our people and our targeting our military assets. If we truly want to defend Pakistan, we need to change this mindset now.