WASHINGTON (TIP): The US government legal counsel who advised the Department of Justice to seek immunity for the Pakistani spy agency ISI and two of its former chiefs in the 26/11 Mumbai terrorist attack turns out to be a strong supporter of the legality of Obama administration’s drone attacks in Pakistan and other countries. Documents reviewed by the Times of India reveal that the immunity guidance to the Justice Department came from Harold Hongju Koh, who is the State Department’s legal advisor, and also a former Dean of the Yale Law School. Koh, who is Korean-American, went on leave from Yale (which is Hillary Clinton‘s law school alma mater) after he was appointed to the position in June 2009 by President Obama, who is an alumnus of the Harvard Law School.

Koh is scheduled to return in January 2003 to Yale, which was started in 1718 with an endowment from Elihu Yale, an American governor of the British East India Company in what was then Madras. In remarks predating his advice on immunity to ISI, Koh asserted that US Drone warfare is lawful self-defense under international law for targeted killings of non-state actors. In a 2010 keynote at the American Society of International Law meeting in Washington DC, Koh stated that “US. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war.”

He further explained that the US is in “an armed conflict with al Qaeda, the Taliban, and the associated forces” and thus has the lawful right to use force “consistent with its inherent right to self-defense” under international law in response to the 9/11 attacks. An international law blog which reviewed Koh address said he identified three elements related to situational considerations that the US uses when determining whether a specific targeted drone killing at a particular location will occur: Imminence of the threat; Sovereignty of other States involved; and Willingness and ability of those States to suppress the threat the target poses. Going by the Obama administration’s relentless drone strikes inside Pakistan, Washington seems to make light of the sovereignty issues, believing Islamabad does not have control over its territories ceded to terrorists and is unwilling or unable to take action.

But in the 26/11 Mumbai case, sovereignty leaps to the forefront, with the US administration challenging the argument that the ISI and its heads are beyond the control or outside the purview of the Pakistani government. “Plaintiffs’ theory is particularly unusual in the context of an intelligence agency, which, like a foreign ministry or defense ministry, serves a quintessentially sovereign purpose,” reads the statement of interest filed by the US Justice Department before the Eastern District Court of New York, where American families of the 26/11 victims have filed their case. Referring specifically to the plaintiff’s implicating the ISI chiefs, the statement concludes that the “Department of State has determined that former Directors General Pasha and Taj are immune because plaintiffs’ allegations relate to acts that these defendants allegedly took in their official capacities as directors of an entity that is undeniably a fundamental part of the Government of Pakistan.”

Meanwhile, even as New Delhi expressed its disappointment at the Obama administration letting ISI off the hook, US officials maintained that Washington’s submission was based on a technicality in this specific case where it was asked to determine sovereignty issue, and that it “should not be viewed as a US Government determination on the merits of the Plaintiffs’ claims.” In other words, the US is not talking about the involvement or otherwise of ISI and its chiefs in the Mumbai attacks; just on the issue of sovereign immunity as afforded under law and diplomatic conventions.

In remarks that offered no relief to Pakistan, which was exulting in what it saw as an exculpatory US statement of interest, a state department spokesperson echoed the court submission which urged the Government of Pakistan to dismantle Lashkar-e-Taiba and specifically asked Pakistan “to support India’s efforts to counter this terrorist threat.” Indian officials see the developments as part of a backroom deal between US and Pakistan to facilitate the American drawdown from Afghanistan which will be difficult to accomplish without Pakistan’s help. Pakistan’s own media and civil society, not to speak of highranking US officials, have implicated the country’s military and ISI in sponsorship of terrorism, one official pointed out, suggesting that geo-politics more than technicalities determined the US court submissions.