HAFIZ SAEED'S RELEASE TO BE APPEALED

C O N F I D E N T I A L SECTION 01 OF 03 ISLAMABAD 001247 SIPDIS E.O. 12958: DECL: 06/07/2019 TAGS: PREL PTER PGOV KJUS PK IN SUBJECT: HAFIZ SAEED'S RELEASE TO BE APPEALED REF: A. STATE 56791 ¶B. LAHORE 110 ¶C. LAHORE 99 ¶D. LAHORE 98 ¶E. ISLAMABAD 1173 Classified By: Anne W. Patterson for reasons 1.4 (b),(d). ¶1. (C) Summary: On June 2, Jamaat-ud-Dawa (JuD) chief Hafiz Saeed was ordered released from house arrest by the Lahore High Court (LHC). With no charges pending against him, the Court found no grounds for continuing Saeed's detention, which began November 26, 2008, stated the 20-page detailed judgment released by the LHC full bench on June 6. Speaking to SRAP Ambassador Holbrooke and the Ambassador on June 3, President Zardari said he would appeal the decision to the Supreme Court. Punjab Law Minister Sanaullah confirmed late June 3 that the province would appeal the LHC decision. Punjab officials, however, added that they had requested the GOP to provide more evidence showing Saeed's terrorist links to no avail. ¶2. (C) Summary continued: Saeed's legal journey, however, has been different than the five JuD terrorists allegedly linked to the November 2008 Mumbai attacks. They are held in jail under the authority of a GOP Anti-Terrorism Court, charged with terrorist acts. That Court appears willing, for now, to extend the case and continue their detention to allow preparation time for the prosecution. Nawaz Sharif's attorney at the Supreme Court, Akram Sheikh, suggested the USG should send an observer to their trial. In contrast, while "preventive detention" can be broadly applied to any person, in this case Saeed, that governmental jurisdiction is also strictly proscribed. It does not appear Pakistan violates UN Security Council Resolution 1267 with Saeed's release. The resolution focuses on freezing the designee's assets, which the State Bank of Pakistan has done, and imposing a travel embargo on the designee, which Saeed's continued inclusion on the GOP's exit control list would accomplish. The real issue will be whether the GOP can and will re-arrest Saeed, whether again as preventive detention or under actual charges. End summary. Headed for Appeal - - - - - - - - - ¶3. (C) Per ref A, Special Representative for Afghanistan and Pakistan (SRAP) Ambassador Holbrooke and the Ambassador met President Asif Zardari late June 3 and discussed GOP options vis-a-vis Jamaat-ud-Dawa (JuD) leader Hafiz Mohammad Saeed. (Note: Other issues discussed during this meeting will be reported septel.) Zardari expected Punjab police to withdraw from Saeed's Lahore house soon, if not already, upon official issuance of the Lahore High Court's (LHC) short order. (Note: Jamaat-e-Islami (JI) leader Munawar Hassan met with Saeed early June 4, confirming the lifting of house arrest.) ¶4. (C) Zardari further said that his government was going to appeal the LHC decision. He added the judiciary was independent and there was little the GOP could have done about the case. Separately, the Ambassador called Interior Minister Rehman Malik June 6 to find out if Saeed was still on Pakistan's exit control list, as it would seem required under UNSCR 1267. (Note: The Ambassador had provided him some weeks before the "tear line" about the threat information regarding another attack against India.) Malik was unclear whether Saeed was still on the exit control list but indicated Zardari had said the GOP would crack down on "these people." Malik had some ideas in this vein, which he promised to discuss soon with the Ambassador. ¶5. (C) Punjab Law Minister Rana Sanaullah announced late June 3 that the province would appeal the LHC ruling, adding "since Saeed has links to LeT, we believe it is better his activities should be restricted and that is why we are going to appeal." Separately, on June 3, Consulate Lahore spoke with the Punjab Home Secretary and the Law Minister, who confirmed the province's Advocate General would file a Supreme Court appeal upon receipt of the LHC's detailed judgment, which was released on June 6. ¶6. (C) Neither the Home Secretary nor the Law Minister, however, were optimistic that the appeal would be successful absent detailed evidence from the federal government linking ISLAMABAD 00001247 002 OF 003 either Saeed or JuD to recent specific terrorist incidents, such as the Mumbai attacks. The two did not believe that the courts would allow Saeed's continued detention based solely on his statements calling for violence and supporting terrorist activities, which, along with UNSCR 1267, had been the basis for the initial detention. ¶7. (C) The Home Secretary repeated earlier comments that the provincial government had consistently requested the GOP to provide the province with evidence of Saeed's terrorist links, noting that all such information was in the custody of federal agencies. The Home Secretary stated that the provincial government could not violate the court order and preventively detain Saeed again in the short-term absent additional evidence of his terrorist connections. He requested that, if the USG had any evidence of Saeed or JuD involvement in recent terrorist attacks, it be shared with the Punjab provincial government. ¶8. (C) A/Polcouns met June 3 with Akram Sheikh, senior Supreme Court attorney, including on behalf of opposition leader Nawaz Sharif. Sheikh said the GOP case of evidence against Saeed was very poor, but there was no prohibition against the GOP detaining Saeed again. Sheikh said this was not at all the case with the body of evidence against the Mumbai terror suspects, which includes evidence passed by the GOI and confirmed by the GOP. Nonetheless, in response to A/Polcouns' query as to whether Saeed's release was an indication of the Court's intentions toward the Mumbai suspects, Sheikh suggested the USG send an observer to their trial. He added European observers should also attend. Background - - - - - - ¶9. (SBU) Following the November 26, 2008, Mumbai attacks, the UN Security Council imposed sanctions on Jamaat-ud-Dawa (JuD),the front for Lashkar-e-Taiba (LeT),under UN Security Council Resolution 1267. Pakistan, on December 11, 2008, placed Saeed under house arrest and said the JuD would be banned with immediate effect. Saeed was placed on Pakistan's exit control list. Simultaneously, the State Bank of Pakistan directed all banks to freeze the accounts of JuD and four LeT leaders, including Saeed, who were also declared terrorists subject to sanctions. ¶10. (SBU) On June 2, the Lahore High Court (LHC) ordered Saeed's release, reported ref B. After extending his original three-month detention, officially sanctioned under Article 10 of Pakistan's Constitution allowing preventive detention, the LHC heard Saeed's habeas corpus petition against his detention. Saeed's attorney argued that no explanation at all had been given by the government. In its 20-page detailed judgment, released on June 6, the LHC full bench held that the government's decision to detain the JuD leader was not based on solid evidence and that the material provided by the government, mostly based on intelligence reports, the ruling noted, was incorrect and even prepared after Saeed's detention. The High Court further observed that the government had no evidence Saeed had any links with al Qaeda or was involved in anti-state activities. Prior Warning - - - - - - - ¶11. (C) As recently as late May, Punjab provincial leaders warned of Saeed's imminent release, reported ref C and D. On May 21, Punjab Chief Minister Shahbaz Sharif, meeting with the Ambassador, predicted the LHC was unlikely to give the federal government any additional leeway on the preventive detention. He added, the federal government seemed unable to provide sufficient concrete evidence linking Saeed personally or JuD as an organization to the Mumbai attacks. ¶12. (C) Punjab Home Secretary Nazim Hassan Asif admitted May 18 to Consulate Lahore, "we are facing a tough time in the courts." He noted that Saeed did not have a criminal record. Asif further claimed he had already warned Attorney General Latif Khosa and Interior Secretary Kamal Shah of the possibility the LHC might soon release Saeed. ¶13. (C) The Ambassador raised again these warnings with the GOP. She expressed USG concern that Saeed's release could lead to further LeT/JuD attacks. On June 2, she shared with ISLAMABAD 00001247 003 OF 003 Chief of Army Staff (COAS) General Ashfaq Kayani more detailed threat reporting specifically mentioning possible terrorist activities in India that would be triggered by Saeed's release. (Note: This threat reporting has also been passed several times through other channels.) Kayani, however, punted, saying this was "a matter for the courts." ¶14. (C) When EconOff and Treasury Attache met with MFA UN Affairs Director Ahmad Farooq about the possibility of additional 1267 designations, Farooq raised the news of Saeed's release. He foreshadowed a likely growing GOP line -- prosecutors need more evidence to proceed against Saeed, and the USG should provide such evidence of criminal wrongdoing allegedly in our possession. Preventive Detention - - - - - - - - - - - ¶15. (C) Saeed's house arrest was based on the 1267 designation of him and the terrorist group he leads. In contrast, the alleged LeT terrorists linked to the Mumbai attacks have been charged with terrorist acts. Saeed's habeas corpus petition, therefore, before the LHC, is a lower hurdle than even a bail hearing would be by the latter -- Lakhvi, Zarrar Shah, Sadiq, Riaz and al Qama -- before a separate Anti-Terrorism Court (ATC). That ATC met again June 6, reported in ref E, to determine their continued detention and to judge whether Pakistan's Federal Investigative Agency (FIA) can mount a prosecution. The hearing was adjourned again until June 20. ¶16. (SBU) Preventive detention has been used in Pakistan since independence, and Article 10 of the current 1973 Pakistani Constitution maintains and expands the availability of such detention. It allows for the preventive detention of "persons acting in a manner prejudicial to the integrity, security or defense of Pakistan... external affairs of Pakistan, or public order." ¶17. (SBU) But Article 10 is also very specific about procedural guarantees. While there are no rights at all afforded to the detainee in the first fifteen days, at that point, the person is entitled to know the basis for the detention and be given opportunity to "make representation" against it. Within three months, a judicial "Review Board" must be convened and hear the case. The Review Board can extend preventive detentions beyond a twelve-month limit in the case of a person "who is acting or attempting to act in a manner prejudicial to the integrity, security or defense of Pakistan or... who commits or attempts to commit... anti-national activity... or is a member of any association which has for its objects, or which indulges in, any such anti-national activity." vs. UNSCR 1267 - - - - - - - - ¶18. (C) The 1267 designation alone does not require Pakistan to put a person under arrest. Instead, Pakistan's obligations under the resolution are very specific, imposing binding obligations on all UN member states to "freeze without delay the funds and other financial assets or economic resources" belonging to individuals and groups who have been added to the UNSCR 1267 Consolidated List. Citing UNSCR 1267, State demarches inform that "all UN member states must impose a travel and arms embargo against the designee and impose an asset freeze." Saeed's release from house arrest does not apparently violate Pakistan's obligations under UNSCR 1267. ¶19. (C) Comment: Pakistan's federal and Punjab provincial governments, separately, have asked for USG help in building a criminal case against Saeed, as we have and are doing against the five LeT/JuD terrorists who are charged and continue to be detained by the Anti-Terrorism Court. If Punjab's appeal to the Supreme Court should fail, it does appear the federal government may be willing to find new grounds for preventive detention or even actual charges. End comment. PATTERSON