What needs more attention is the possible role of Pakistan's military and Inter-Services Intelligence Agency (ISI) officers, either officially or acting on their own, in keeping Osama hidden for 7 years (by placing him right under their nose near their military complex.)If they were complicit, and I can't see how they weren't, it should make people question the wisdom of both the Bush and Obama Administrations in insisting on expansive sharing of law enforcement information across agencies, particularly those in other countries. How much did the information we provided Pakistan help those who were helping bin Laden?

This issue should come into much greater focus in the next few weeks when the terror trial of David Headley's co-defendant Tahawwur Hussain Rana begins in Chicago for allegedly providing material support to Lashkar e Tayyiba (leT) in the Mumbai bombings and the planned Denmark attack.

The Department of Justice (through Patrick Fitzgerald's team of prosecutors) will be in the unenviable position of vouching for Headley's version of events to convict Rana, even though Headley insists some of his handlers were ISI officers and ISI was up to its neck in the attacks. The Government will try to keep ISI's alleged involvement out of the case, but it may be tricky to keep it from coming in through a back door. Also, just last month, the Government added some ISI officers as defendants in Rana's Second Superseding Indictment, using the names they gave Headley (Major Iqbal and Major Samir Ali).

Rana has insisted that his actions related to the Mumbai charges were done at the behest of the Pakistani government and the ISI, not Lashkar. The Judge ruled he can't raise this as a defense because the "public authority" defense only applies if he's alleging he acted at the behest of a U.S. official. In his order (available on PACER) rejecting Rana's ability to raise the defense, the Judge recounted a paragraph of Headley's grand jury testimony:

During my trip to Chicago, I told [Defendant] about my meetings with Sajid and others in Lashkar. I also told him about my meetings with Major Iqbal, and told him how I had been asked to perform espionage work for ISI. I even told him some of the espionage stories that Major Iqbal had told me. I told [Defendant] about my assignment to conduct surveillance in Mumbai. I asked [Defendant] if it was okay with him that I set up a First World immigration office in Mumbai. I explained to him that the immigration office would provide a cover story for why I was in Mumbai. I told him that Major Iqbal would be providing money to pay for the expenses associated with setting up and operating the office. [Defendant] agreed.

The Judge explained Rana's request:

Defendant argues that the ISI has authority to act in India to protect Pakistan’s national interests. Therefore, he contends, he relied on a public authority, one that he argues is immune from criminal prosecution in United States courts under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602, et seq., when he engaged in activities such as allowing Headley to open a First World immigration office in Mumbai. This reliance, Defendant argues, negates the scienter required for him to be found guilty of
the three charges.

He held that Rana cannot rely on the authority of a foreign government agency or official to authorize his violations of United States federal law. Which means Rana can't get this in through the front door. But what about through the back door? What will come out when Rana's lawyers cross-examine Headley? Here's more on what Headley told Indian officials about the ISI's role in the attacks.

The Government is very concerned about the jury (and everyone else) from hearing Headley's allegations against the ISI. In a motion seeking to prevent Rana from introducing the Indian report on Headley's statement, it wrote:

The government seeks an order from this court finding that the interview summaries prepared by the Federal Bureau of Investigation and the National Investigation Agency of the Government of India are not statements of the witness under the Jencks Act, and to preclude the defense from introducing the contents of these reports to the jury or otherwise suggesting to the jury that the reports are statements of the witnesses who did not write them or adopt them.

...[T]he government is providing to the defense a written report prepared by the National Investigation Agency of the Government of India which purports to summarize an interview of David Headley by their agents. While the Indian report of interview is written in the first person, this interview was not tape recorded, was not taken down by a court reporter, and the written summary represents a collaboration of several Indian investigators. Further, it was not approved or adopted by David Headley.

...Inasmuch as these reports are not statements of the witnesses, but summaries prepared by agents, the defense should be limited in their use of them. In particular, the defense should be precluded from using the contents of an FBI interview report or an interview report of the Indian investigators to impeach the witness on the basis of any prior inconsistent statement because the report is not the statement of the witness.

Moreover, the defense should be precluded from publishing the contents of the reports to the jury, otherwise suggesting to the jury that the report is a statement of the witness.

Also, the families of the Americans killed in Mumbai have sued, among others, the ISI and ISI Director General Ahmed Shuja Pasha and former ISI Director General Najeem Taj in U.S. federal court (Eastern District of New York.) All three are represented by lawyers in the New York office of law firm Locke, Lord, Bissell & Lidell. Their first motion to dismiss (based on doctrines involving sovereign immunity, political question, comity, and Act of State ) was due yesterday, but hasn't been entered as of now on PACER yet.

The lawsuit alleges that during the time Headley took directions from his ISI handlers, Iqbal and Samer Ali, the ISI and its Director Generals, Taj and Pasha, were in control and aided and abetted LeT in the Mumbai attacks.

From April, 2006 until September, 2007, Najeem Taj was the Commandant of the Pakistan Military Academy in Kakul, Abbottabad. According to the Pakistanis, Osama was living in Abbottabad in 2006 to 2007. Right under Taj's nose.

Pakistan emphatically denies any ISI officers were involved in the Mumbai attacks, and it claims it can't identify Major Iqbal or Samir Ali. It is insulted that anyone would question Pasha or Najeem Taj.

I think media interest in the Tahawwur Hussain Rana terror trial, which begins May 16, is about to get a big (and much deserved) boost.

For more on the alleged involvement of Pakistan's ISI and the Mumbai attacks, don't miss Pro Publica's Pakistan and the Mumbai Attacks: The Untold Story by Sebastian Rotella. For later and shorter recaps and new questions about the ISI raised by Osama bin Laden's killing, see Rotella's latest at Pro Publica, Pakistan’s Terror Ties at Center of Upcoming Chicago Trial.

Our many posts about the Headley-Rana case are available here.