Significantly, the FIA turned over physical evidence to Legatt that has subsequently been sent to the U.S. for analysis. The release of physical evidence is a very sensitive issue, and one that could affect the success of the GOP's prosecution.

204888 4/30/2009 11:01 09ISLAMABAD922 Embassy Islamabad CONFIDENTIAL 09ISLAMABAD505 "VZCZCXRO3133 PP RUEHBI RUEHLH RUEHPW DE RUEHIL #0922/01 1201101 ZNY CCCCC ZZH P 301101Z APR 09 FM AMEMBASSY ISLAMABAD TO RUEHC/SECSTATE WASHDC PRIORITY 2511 INFO RUEHAD/AMEMBASSY ABU DHABI 3551 RUEHBUL/AMEMBASSY KABUL 0192 RUEHLO/AMEMBASSY LONDON 0208 RUEHNE/AMEMBASSY NEW DELHI 4811 RUEHKP/AMCONSUL KARACHI 1540 RUEHLH/AMCONSUL LAHORE 7145 RUEHBI/AMCONSUL MUMBAI 3806 RUEHPW/AMCONSUL PESHAWAR 6080 RHMFISS/FBI WASHINGTON DC RHMFISS/CDR USCENTCOM MACDILL AFB FL RUMICEA/USCENTCOM INTEL CEN MACDILL AFB FL RUEKJCS/SECDEF WASHINGTON DC RUEAIIA/CIA WASHDC" "C O N F I D E N T I A L SECTION 01 OF 04 ISLAMABAD 000922 SIPDIS

E.O. 12958: DECL: 04/30/2019

TAGS: PREL, PTER, PGOV, AE, IN, PK

SUBJECT: MUMBAI PROSECUTION UPDATE: PAKISTAN FILES CHARGE SHEET

REF: ISLAMABAD 505

Classified By: CDA Gerald Feierstein for reasons 1.4 (b), (d).

1. (C) Summary: On April 29, the Pakistani Federal Investigation Agency (FIA) filed an interim charge sheet in connection with the Mumbai terror attacks in a Rawalpindi Anti-Terrorism Court. The court has granted the FIA an extension to file its formal charge sheet by May 5; and the trial will commence within 30 days. The charge sheet details the cases against the five Pakistani suspects in custody, and also lists all the evidence that will be presented in court to prove the cases against them. On March 14, in a 400-page dossier, India answered 30 questions put forward by the GOP. In response, the GOP has passed a list of follow-up questions to India. In order to successfully prosecute the five individuals in judicial custody, Zaki ur-Rehman Lakhvi, Hammad Ameen Sadiq, Mazhar Iqbal (aka al Qama), Abdul Wajid (aka Zarrar Shah), and Shahid Jamil Riaz, the GOP still needs significant evidence sharing from both the U.S. and India. Additionally, U.S. legal expertise will be important in helping to frame third-country evidence in the most effective form for convictions. End summary.

MORE FROM INDIA

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2. (SBU) On April 20, Minister of Interior Rehman Malik confirmed the arrest of one more suspect in the Mumbai terror attacks and asked India to provide more information to proceed against those already detained for perpetrating the attacks. He did not give any details about this sixth arrest. Malik made it clear that Pakistan could not fully prosecute the suspects it had arrested unless India provided more information about the attacks, including Ajmal Kasab's official court statement. Malik will be visiting the U.S. the week of May 4 to participate in the Pakistan-Afghanistan Trilateral, and he will also meet with FBI Director Mueller.

3. (C) On March 14, India passed to the GOP answers to 30 questions regarding the Mumbai attacks. Pakistan's response to India's dossier has been tepid, with investigators combing through the 400 pages of answers looking for more details. Head of FIA's Special Investigations Group (SIG) Qureshi complained that though the answers to many of the questions were present in the Indian dossier, none of the responses were authenticated or admissible in court in their current form. The Federal Investigative Agency (FIA) has sent a list of follow-up questions to the GOI and is awaiting response.

4. (C) The FIA's response includes the following outstanding requests for the GOI: -Authenticated copy of Ajmal Kasab's confession statement, recorded by a judicial authority; -Authenticated copies of all seizure memos of articles belonging to the terrorists; -Forensic analysis of mobile and satellite phones and other evidence establishing the conspiracy; -Fingerprints and DNA profiles of all ten attackers, killed and arrested; -Logs of cell phone intercepts; -Cell phone numbers targeted for transcripts immediately after the terrorist strike; -Thuraya satellite phone forensic analysis; -Transcript of conversation between the terrorists and handlers; -Additional clarification regarding GPS logs; and -Information about the two Indian nationals arrested in connection with the attacks: Ansari and Sabahuddin.

FIA INVESTIGATION AND PROSECUTION

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5. (C) Embassy Legatt continues to meet with the FIA investigative team on the technical aspects of the Mumbai investigation and prosecution. Currently Legatt is assisting FIA to prepare evidentiary materials for the court trial and the filing of a formal charge sheet.

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6. (C) The FIA filed an interim charge sheet in an Anti-Terrorism Court in Rawalpindi on April 29 and the court has granted the FIA until May 5 to make any additions or corrections to the charge sheet. The hearing of the case will take place in the high-security Adiala Jail in Rawalpindi. The charges cover all five suspects in GOP custody. Once FIA finalizes the charge sheet in court, the investigators will have approximately 30 days to gather all official evidence documented in the charge sheet before the hearing begins. The evidence that the FIA requested from the FBI will have to be processed by the FBI in this period. Any evidence that will be introduced during the trial must be referenced in the charge sheet. Submitting evidence and/or subjects of the conspiracy after the charges are filed can only be done through a court order. The FIA informed Embassy Legatt on April 24 of the filing requirement date, and Legatt has worked with the FIA to compile all possible evidence to include in the charge sheet.

7. (C) Significantly, the FIA turned over physical evidence to Legatt that has subsequently been sent to the U.S. for analysis. The release of physical evidence is a very sensitive issue, and one that could affect the success of the GOP's prosecution. The FIA stressed that this sharing of evidence has to be kept quiet, as any leaks would endanger the prosecution. Possibly the most important piece of evidence shared with the FBI is an aluminum box covered with pink packaging material that was found in one of the training camps in Sindh. A similar pink box was found by investigators in Mumbai and the FBI has been asked to conduct an analysis of both boxes to help prove the conspiracy case in Pakistan. For successful analysis, the FBI still needs the GOI to provide samples of the pink box in India.

LeT AND THE MUZAMMIL GROUP

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8. (C) On April 27, Embassy Legatt having received GOI approval, shared FBI information about a Laskhar-e-Taiba (LeT) subgroup believed to be responsible for the Mumbai attack. The information provided biographic leads on LeT members for the FIA to pursue. According to the information, an LeT subgroup, headed by Saifullah Muzzamil, and under the direction of LeT operation commander Zaki ur-Rehman Lakhvi, is suspected of planning, training, and execution of the Mumbai attacks. The information provided includes a list of suspected ""Muzzamil"" group members. Saifullah Muzzamil, the group leader, is responsible for LeT operations in four districts of Kashmir and is also allowed to conduct independent attacks in other parts of India. The ""Muzzamil"" group was established in late 2001, or early 2002, after Muzzamil's return from fighting in Kashmir. Other attacks thought to be committed by the ""Muzzamil"" group of the LeT include the 2002 attack on the Akshardham Temple, the 2005 attack on the Indian Institute of Science in Bangalore, and the 2007 attack on the Rampur Civil Reserve Police Force camp.

9. (C) The four suspects that the FIA has arrested- Zaki ur-Rehman Lakhvi, Hammad Ameen Sadiq, Mazhar Iqbal (aka al Qama), Abdul Wajid (aka Zarrar Shah)- all remain in judicial custody. While in judicial custody the suspects can only be interviewed with the consent of the court. The FIA recently arrested a fifth individual, Shahid Jamil Riaz, for his involvement in the purchase of the Yamaha engine used by the attackers. According to the FIA, the GOP has independent evidence to prosecute Sadiq and Riaz for their roles in the conspiracy. All the evidence found in Pakistan, including the training camps and the paper records, point to these lower level individuals. However, the FIA admitted that regarding the other three conspirators, Lakhvi, al Qama, and Zarrar Shah, the GOP has very little evidence aside from what India or the U.S. have provided. In order to convict the three latter suspects, arguably the more important and senior LeT members, significant evidentiary cooperation from both the U.S. and India will be required. Both the FIA and Pakistan's Attorney General Latif Khosa have told Emboffs that third-country evidence can be used in Pakistani courts if it is introduced according to the proper procedure and if a chain of custody is proven.

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OUTSTANDING ITEMS

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10. (C) Though FIA-FBI information sharing has improved greatly in the last few weeks, Embassy Legatt continues to face resistance from the FIA in terms of full investigative cooperation. Convincing the GOP to allow the FIA to fully cooperate and share necessary information will help the judicial proceedings in both countries to be successful. The FBI continues to seek the following items from the FIA and the GOP: -Official Charge Sheet; -Full FIA Investigative Report; -Biographical information on those charged, arrested, and suspected to include photographs, fingerprints, voice samples, and DNA; -Information and details regarding the training locations, staging areas, and safe houses used in the conspiracy; -Information on investigation of VOIP payments made from Pakistan; -Access to all telephones and other electronic devices recovered during FIA investigation, including the SIM card reportedly seized in Azizabad.

11. (C) The FIA continues to seek the following items from the FBI: (Item A is underway; items B-E require GOI or UAE concurrence of participation) A. FBI forensic examination of items recovered in Pakistan and passed from the FIA; B. FBI forensic comparison of GOP evidence to items recovered in Mumbai; C. Photographs of all handwriting on items recovered in Mumbai; D. Information downloaded from all cellular and satellite phones and SIM cards recovered in Mumbai; E. Subscriber and call records from Thuraya.

SIGNIFICANT HURDLES

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12. (C) Acquiring some of the information the GOP needs for its prosecution will require high-level intervention from the relevant governments:

A. Pink Aluminum Box: The two pink boxes found in Pakistan and India are a strong link that proves the conspiracy behind the attacks originated in Pakistan. The GOP has passed its pink box to the FBI. The FBI still requires samples from the foam and glue that make up the box found in India. The GOI has not been forthcoming with this evidence.

B. Thuraya Satellite Phone Records: The Thuraya company has not released its records to any investigatory agency. The company is based in the UAE and without government pressure, Thuraya is unlikely to release the records.

C. GOI Evidence Shared with the FBI: The FBI still awaits GOI approval to share several pieces of information with the GOP. Important evidence, such as the handwriting samples and SIM card details, was obtained by the FBI from the GOI.

D. Evidentiary Legal Issues: There are significant issues to resolve about the appropriate legal methods to present third-country evidence in Pakistan. FIA has requested meetings with appropriate USG legal representatives. Legatt has requested appropriate legal representatives from DOJ or FBI, such as the National Security Law branch of the FBI, visit Pakistan to ensure that these legal requirements are met before the trial proceedings begin. If evidence is not provided in the correct format, it will be inadmissible in Pakistan.

12. (C) Comment: The Mumbai attacks prosecution is moving along mostly unnoticed in Pakistan, with more immediate security concerns dominating the news cycle. Interior Minister Rehman Malik's visit to the U.S. next week is an opportunity to stress the importance of successfully prosecuting the LeT terrorists and dismantling the LeT

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network. Malik is likely to blame the GOI for not sharing enough evidence. More cooperation and open information sharing on the part of the FIA will facilitate the prosecutions both in Pakistan and the U.S. Providing Malik with USG evidentiary and legal assistance will help him to ensure convictions of the terrorists in custody. End comment.

FEIERSTEIN