‘If Mumbai attack suspects arrested in Pakistan are freed, India is at fault'

United States officials were worried about the possibility that the top three Lashkar-e-Taiba (LeT) militants arrested by Pakistan in connection with the 26/11 Mumbai attacks could be acquitted and let free by the court for want of evidence. They complained that New Delhi was at fault in this, as despite repeated interventions by the U.S. government at “several levels,” it had not shared “certified evidence” with Pakistan.

On May 12, 2009, the day Pakistan's Anti-Terrorism Court (ATC) in Rawalpindi granted more time to the Federal Investigation Agency (FIA) to file the final chargesheet against the five LeT suspects arrested for the Mumbai attacks, the U.S. Embassy in Islamabad sent a cable (206598: confidential) to the Secretary of State in Washington.

‘Diligent' investigation

The cable, accessed by The Hindu through WikiLeaks, commended the FIA for its “diligent” investigation into the attacks and observed that it had “competently” built up a case against the LeT suspects. However, it noted, while the case against two of the lower-level LeT operatives, Hammad Ammen Sadiq and Shahid Jamil Riaz, was strong, the FIA did not have “enough independent evidence” to successfully prosecute the senior LeT leaders — Zaki ur-Rehman Lakhvi, Mazhar Iqbal alias al Qama, and Abdul Wajid alias Zarrar Shah.

Important evidence that linked Lakhvi, Shah, and al Qama to the Mumbai attacks had to come from India. Even proving the connection between the attacks and an LeT conspiracy in Pakistan, “heavily” depended on the evidence available with India, the cable remarked. The FBI too cannot share the evidence in its possession with Pakistan without Indian approval, it said.

The two key pieces of evidence: the voice recordings of the LeT controllers, or a sworn testimony by suspects in Indian custody regarding the recordings, and “the set of two pink aluminum Improvised Explosive Device (IED) boxes,” one found at Karachi and the other at the site of the Mumbai attacks. The Karachi box was sent to the FBI for a forensic analysis. However, for the connection between the two to be confirmed, India had to hand over samples of its pink box to the FBI.

India maintained it had passed on all relevant evidence to Pakistan. However, the cable remarked that none of the evidence that was passed on was judicially certified. The U.S. officials cited the example of “blurry photocopies” of fingerprints of the Mumbai attackers passed on to the FIA. Not only would these be inadmissible in court, they could not be used to match the fingerprint records that were with Pakistan, they said.

The U.S. officials tried to impress upon India the need to share the most important items of proof that the FIA and the FBI needed. On May 6, 2009, Peter Burleigh, Charge d'Affaires at the U.S. Embassy in Delhi, met Foreign Secretary Shivshankar Menon and raised the issue of “evidentiary cooperation” with Pakistan. Mr. Menon told Mr. Burleigh the government “had already requested court permission to send all the documents” requested by Pakistan, and explained that “the Indian judge would proceed at his own pace but that he thought the request was non-controversial and would be granted.”

Mr. Burleigh tried to point to “the urgency of the court deadline.” Mr. Menon “smiled,” and said he “knew of that, but that it was not true that introducing additional evidence after that period (when the charge sheet is submitted) was unusual or difficult.” He added that “‘we have the same system and we know how their courts work'.”

In August 2009, the FIA arrested Jamil Ahmed, the sixth suspect in the Mumbai attacks, from his home in Battgram on a tip off from Saudi Arabia.

A U.S. diplomatic cable sent two days after Ahmed's arrest (219934: confidential) noted that the FIA was “still waiting for a few items of evidence from India.” However, as the cable mentioned, the FIA had “no expectation” that India would release the evidence in time for the trial and made its own plans to strengthen the evidence. It decided to have one of its investigators testify on the voice recordings against al-Qama and Lakhvi. The U.S. did its bit by helping the FIA screen the fingerprint images to gain better visibility.

The Pakistan Cables are being shared by The Hindu with NDTV in India and Dawn in Pakistan.