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Haqqani boycott, disputed forensics diminish memo commission

18 May, 2012

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ISLAMABAD: The commission, created by the Supreme Court to investigate the memo sent by Mansoor Ijaz to US Admiral Michael Mullen, will meet again today (Friday) but its deliberations are unlikely to have the same significance they seemed to have when the commission started its work in January.

Having denied Husain Haqqani's request to record his statement by videoconference and failing to make any effort to get statements from other potential witnesses such as US General James Jones, who transmitted Ijaz's memo, and Admiral Michael Mullen, the commission is now dealing only with Ijaz's claims.

Haqqani has already withdrawn from the commission's proceedings, saying that he found the commission uninterested in seeking his version while going out of its way to facilitate Ijaz, including allowing him to record statement by videoconference from London and arranging an examination of his BlackBerry handset on his own terms.

Haqqani has reportedly said that the commission is no longer making an effort to investigate the origins of the memo but just looking for ways to facilitate Ijaz, tell his story and to create difficulties for Haqqani.

Had the commission focused on fact finding, the former ambassador's friends say, it would have made it easier for all witnesses, including Haqqani, to record their statements just as they enabled Ijaz.

The former ambassador's boycott will definitely make the commission's findings controversial though it will not have any effect on the commission completing its work. Legally, Haqqani did not refuse to give evidence and withdrew from proceedings only after he was not given opportunity to record statement in the same way as another witness in the case. The commission is not a trial court and Haqqani is not legally an accused.

The commission has reportedly received the report of the forensics expert selected by it who examined Ijaz's BlackBerry handset at the Pakistan High Commission in London. The procedure followed in the conduct of forensics examination is being disputed by Haqqani's lawyer and other legal experts and is likely to throw the commission's investigation into dispute.

The commission waited until May 5 to order the forensics examination of Ijaz's BlackBerry handset and asked its secretary to travel to London. The secretary most likely travelled to London the next day, on May 6. The forensics expert was ostensibly chosen on May 8 and the actual procedure conducted at the Pakistan High Commission in London on May 10 in the presence of Ijaz.

The swiftness of the exercise raises questions about whether part of it had been completed before hand without informing all petitioners and respondents, especially Haqqani.

"How were we expected to find a representative in London to be present on the 10th at the so-called forensics examination after being told on the 8th to get there? Mansoor Ijaz was clearly given prior inside information. Such collusion is just not fair," observed a source in the Haqqani camp.

The commission's order for forensic examination was made after completion of arguments, which is not the normal practice in investigations and it was this decision that prompted Haqqani's lawyers, led by Zahid Husain Bokhari, to withdraw from the commission's proceedings. It is also not normal procedure for forensics to be conducted away from forensics facilities such as a laboratory, in this case the high commission in London.

Haqqani's side objects to the selection of the forensics expert as well saying that the selection was made on Ijaz's recommendation or prior approval and the selection process was not transparent. Apparently, the Pakistan High Commission, the Foreign Office and the Law Ministry were also not informed about the process of selecting the forensics expert as no selection committee involving their representatives participated in processing the bids for selection.

The manner in which the ostensible forensics findings have been selectively leaked to reporters and columnists of one newspaper has also attracted comments that the purpose of the exercise is not determining facts but rather scoring political points against a prominent member of the ruling Pakistan People's Party (PPP).

The secretary of the memo commission, Sessions Judge Syed Jawad Abbas, has returned from London after a meeting with Ijaz and a forensics expert who examined Ijaz's BlackBerry handset.

According to reports leaked in a newspaper that has close ties with Ijaz, the forensics report will confirm his claims of exchanging BlackBerry messages and text messages with Haqqani.

Haqqani, who was unable to produce his BlackBerry handset before the commission, does not deny contact with Ijaz but insists that the US businessman of Pakistani origin has lined up these messages against telephone calls to weave a story about the memo that is not true. None of the messages from Haqqani to Ijaz talk about the memo or its contents and there is no email from Haqqani to Ijaz that confirms Haqqani's participation in Ijaz's project.

In his written statement submitted to the commission, which will now not be part of the record as per the commission's decision, Haqqani said, "It is apparent to me that around May 9-12, 2011, Mr Ijaz created a trail of text and BlackBerry messenger exchanges that he could line up alongside contemporaneous telephone calls to falsely and maliciously implicate me in his own scheme and specifically to create evidence that I was involved in a memo that he drafted and gave to General James Jones for onward transmission to Admiral Mullen."

According to Haqqani's statement, "Mr Ijaz's entire claim in relation to the contents of the memo emanating from me rests on telephone conversations with us between May 9 and 12, 2011. I do recall these phone conversations because of their significance in the context of my damage control efforts in the aftermath of the May 2, 2011, Abbottabad raid. But I categorically state that I neither needed to send the message claimed by Mr Ijaz nor did I discuss it with him."

Haqqani had also submitted his telephone bills, which showed that the telephone contact between him and Ijaz was "a miniscule part" of his activities in the aftermath of the US raid that killed Osama bin Laden in Abbottabad but the commission has also not accepted these bills into the record on technical grounds.

The statement went on to point out, "Mr Ijaz has admitted during cross-examination that he does not have any email, BBM or text message from me that requests, directs or authorises him to convey any message on my behalf to anyone in the US government or to specifically convey the points contained in the memo he eventually sent to General James Jones for onward transmission to Admiral Michael Mullen."

The former ambassador explained why receiving several messages from Ijaz did not bother him at the time and his explanation would hold even if these messages are proved in a credible forensics examination. "Many individuals, especially members of the Pakistani diaspora, seeking attention of officials send communications not relevant to official functions and it was my practice as ambassador to ignore such messages when they were received. Occasionally I sent a courteous response so as to not appear aloof from American citizens of Pakistani origin," he said in his written statement.

Haqqani's lawyers say they expect the former ambassador to make his next legal move only after the commission completes its report. The commission is only a fact-finding body with no authority to pronounce judgement on guilt or innocence and cannot award a sentence. Several legal experts say that several of the commission's decisions, including rejection of documents submitted by Haqqani and refusal to allow him to record statement by videoconference, could be the basis for legal challenges later both in Pakistan and international courts on grounds of failure to provide Haqqani equal treatment.

These lawyers point out that Ijaz's documents were all accepted into evidence and any technical shortcomings such as absence of notarisation were allowed to be corrected. All of Haqqani's submissions were rejected summarily on technical grounds such as signature not being on each page or telephone company not submitting bills directly, without affording a chance to the respondent to address the technical objection.

If the memo commission recommends action against Haqqani or upholds Ijaz's version without questioning, the matter will go back to the Supreme Court which could order registration of a case against Haqqani on some specific charge. At that stage Haqqani's lawyers will most certainly challenge the forensic report's authenticity and demand that Ijaz's BlackBerry handset be turned over to multiple independent forensics experts.


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