On April 29, the Pakistani Federal Investigation Agency (FIA) filed an interim charge sheet in a Rawalpindi Anti-Terrorism Court (ATC).

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5/12/2009 3:21:00 PM

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Embassy Islamabad

CONFIDENTIAL

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C O N F I D E N T I A L SECTION 01 OF 03 ISLAMABAD 001024

SIPDIS

E.O. 12958: DECL: 05/11/2019 TAGS: PREL, PTER, PGOV, PK SUBJECT: MUMBAI PROSECUTION UPDATE: PAKISTAN LACKS EVIDENCE TO CONVICT TOP SUSPECTS

REF: ISLAMABAD 922

Classified By: Anne W. Patterson for reasons 1.4 (b), (d).

1. (C) Summary: On May 12, the Pakistani Anti-Terrorism Court (ATC) granted an extension for filing the final charge sheet until May 23. While the FIA and prosecutors have been able to use the repeated extensions to gather more evidence, time is running out, and the prosecution does not/not have enough evidence to convict the top Lashkar-e-Taiba (LeT) suspects, Lakhvi, Zarrar Shah, and al Qama. If the FIA does not receive the necessary third-country evidence from the GOI (or the FBI after GOI approval), these three suspects will likely be acquitted and released. Repeated USG interventions at several levels with the GOI have not yielded any certified evidence being passed to the GOP. If the top LeT terrorists are released, India will certainly accuse Pakistan of a lack of good faith in prosecuting and of directly sponsoring terrorism against India. Washington agencies and New Delhi may wish to review what further steps can be taken with the Indian government. End summary.

TRIAL TIMELINE

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2. (C) The trial of the five Lashkar-e-Taiba (LeT) suspects arrested in connection with the Mumbai attacks, Zaki ur-Rehman Lakhvi, Hammad Ammen Sadiq, Mazhar Iqbal (aka al Qama), Abdul Wajid (aka Zarrar Shah), and Shahid Jamil Riaz will begin shortly, possibly as soon as the beginning of June. On April 29, the Pakistani Federal Investigation Agency (FIA) filed an interim charge sheet in a Rawalpindi Anti-Terrorism Court (ATC). The judge granted the FIA an extension to file its formal charge sheet until May 5 and then a further extension until May 12.

3. (C) On May 12, the ATC granted another extension until May 23, on which date the court will hear preliminary procedural issues, such as the FIA request for an in-camera trial. On May 23, the court may also request the final charge sheet. The FIA hopes that it will not need to file the charge sheet on this date, but the FIA will be prepared to submit it. The final charging document will lay out all evidence that the prosecutors intend to use during the case, and will outline the case against each suspect. Introducing additional evidence not found in the charge sheet once the trial begins is possible; however, it is difficult and the late introduction tends to impugn the veracity of the evidence. Ideally, the prosecution needs to have all its evidence on hand once the charge sheet is filed. On May 23, the FIA has told Emboffs that it will request a further extension, but the trial can begin as soon as a week after the final charge sheet is filed. Even with the requested extensions, the outcome of the hearing could still include the acquittal of Lakhvi, Shah, and al Qama.

NOT ENOUGH EVIDENCE TO CONVICT TOP LET LEADERS

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4. (C) As reported in reftel, the FIA investigation into the Mumbai attack has been diligently pursued and the FIA has developed a strong independent case against Sadiq and Riaz. However, the FIA does not/not have enough independent evidence to successfully prosecute the senior LeT leaders, Lakhvi, Shah, and al Qama. Unfortunately, due to political pressure, the FIA was put in the position of arresting and charging the three individuals before it had conducted a complete investigation or collected the proper evidence. Due to the nature of the Pakistani judicial system, the probability that sufficient independent evidence will be uncovered or developed against these three before the trial is small and they will most likely be acquitted due to a lack of evidence as early as May 23. Significantly, if the three LeT leaders are acquitted in the ATC, under Pakistani law they cannot be charged again in Pakistan for the Mumbai attacks.

5. (C) Important evidence that links Lakhvi, Shah, and al Qama to the Mumbai attacks remains in the hands of the GOI and the FBI. As previously reported, the FBI awaits GOI approval to pass the evidence it holds to the GOP. Crucial

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voice recordings of the LeT controllers have not been given to the GOP by the GOI. These voice samples (or sworn testimony by suspects in Indian custody regarding the voice recordings) could link these top LeT leaders to the Mumbai attacks.

6. (C) A second key piece of evidence that links the conspiracy in Pakistan to the Mumbai attacks is a set of two pink aluminum Improvised Explosive Device (IED) boxes, one found in a Karachi training site and one used in the Mumbai attacks. The Pakistani box has been sent to the FBI for forensic analysis. The preliminary test conducted by the FBI laboratory in Quantico reported a positive result for RDX, an explosive used in the Mumbai attack. Investigators note the similarities between the two boxes; however, the connection can not be confirmed until the GOI gives the FBI samples of its box.

7. (C) The GOP has hired a distinguished private attorney Malik Noon to lead its prosecution. The FBI's National Security Law Branch has sent attorney Brian Schilling to help the GOP with evidentiary issues in its prosecution. Schilling will meet with Noon on May 14 to discuss introducing third-country evidence and other procedural hurdles.

STILL WAITING FOR INDIAN EVIDENCE

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8. (C) On May 5, DCM Feierstein contacted Charge Burleigh in New Delhi to request his help in urging the GOI to pass relevant evidence to the GOP. On May 6, Charge Burleigh met with Indian Foreign Secretary Menon and raised the evidentiary cooperation question. Menon replied that the GOI had already requested court permission to send all the documents requested by the GOP. Menon said the Indian judge would proceed at his own pace but that he thought the request was non-controversial and would be granted. Charge Burleigh noted the urgency of the court deadline, and 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. Menon added, "we have the same system and we know how their courts work." Despite Menon's statement, Charge Burleigh pressed for urgent action, but received no firm commitment.

9. (C) The GOI has also repeatedly told the GOP that it has already passed all relevant evidence, however, none of the evidence passed to the GOP is judicially certified and thus is inadmissible. For example, the fingerprints of the Mumbai attackers passed to the FIA are blurry photocopies of the original fingerprints. These fingerprint photocopies are neither admissible in court nor can they be used to match fingerprints in Pakistani custody. Based on meetings with Indian Deputy High Commissioner Vohra in Islamabad and information from Legat New Delhi, a possible high-level GOI lack of understanding of evidentiary requirements may be influencing the GOI response to GOP requests.

10. (C) The most important items that the FIA or FBI still need (in judicially certified form) from the GOI: -Certified copies of all evidence already passed to the GOP, including forensic analysis, fingerprints, and confession statements -Full interrogation reports of Sabahuddin and Ansari, Indian conspirators in custody -Complete copies of the voice recording of the controllers and attackers during the incident -Sample of Pink IED Box

11. (C) Comment: Pakistan's FIA has been diligent and competent in investigating and building a plausible case. Post believes it is committed to a successful prosecution, however, because of political pressure and an expedited time frame the FIA does not have a viable case against the top LeT leadership in its custody. Repeated high-level intervention with the GOI has not yielded the passage of certified evidence to the GOP. As mentioned in reftel, connecting the LeT conspiracy in Pakistan to the attacks in Mumbai depends heavily on evidence that can only come from India. As the trial time nears, without new evidence, the court will be

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forced to acquit and release Shah, Lakhvi, and al Qama. End comment. PATTERSON