The probe into the memo issue is in full swing but with many spanners being thrown in the works of the judicial commission, as government officials and the lawyer of Husain Haqqani applied delay tactics and ignored repeated warnings of the three-member commission that failure to cooperate would lead it to draw an adverse inference.
The former ambassador declined on Monday to hand over his BlackBerry smartphone for investigation, saying he was unaware of where the device was.
Haqqani also rejected the commission’s request to waive his privacy rights with the Canada-based manufacturer of BlackBerry phones, Research In Motion (RIM), saying: “I may require approval of the government as I am bound to observe the Official Secret Act.” However, Commission Chairman Justice Qazi Faez Isa observed: “Official Secret Act does not come in the way.” When he asked Haqqani if he was prepared to give the waiver as Mansoor Ijaz did, Haqqani replied: “No sir, not at this stage.” Justice Isa said: “If obstacles continue to be created and you and the attorney general do not come forward, an adverse inference can be drawn.” He observed that no straight answer was coming from the government on the memo issue. When Justice Isa asked Haqqani’s lawyer if the waiver would harm him, he did not reply in clear terms. It was a surprise for the commission members when Haqqani said that he had no idea where his BlackBerry was. “I came to Pakistan on short notice and left behind my belongings in the US. I have no information right now about where my BlackBerry set is. It might be lying somewhere at my US residence or Pakistan’s embassy in the US,” he told the commission.
He said further that he had replaced his old BlackBerry set with a new one, adding that he had asked the Foreign Office officials to locate his old set. He also declined to share the PIN of his old set with the commission.
Haqqani’s lawyer Zahid Bukhari also refused to submit the BlackBerry data to the commission, saying that it was the responsibility of the government to provide the commission with the data. The commission, however, exempted Haqqani from future hearings and said he would be called when required, but he was asked to come and witness the proceedings if he desired.
Despite repeated requests from the commission, Haqqani’s lawyer did not submit a list of witnesses if he wanted any, saying it would be submitted at the proper time. Justice Isa said foreigners and out-of-station witnesses would be given priority for their testimony before the commission.
Akram Shaikh, lawyer for Mansoor Ijaz, told the commission that his client would be available to testify before it on January 16 at 9am. He also claimed his client had received emailed death threats.
The commission directed the attorney general that as and when Ijaz approached the authorities concerned in Bern (Switzerland) or Pakistan’s High Commission in London, he should be issued a multiple entry visa to Pakistan without any conditions. The commission, in its short order, directed the authorities concerned at Pakistan’s embassy and High Commission in Bern and London respectively to counselarise the documents to be presented by Ijaz as Power of Attorney.
Bukhari objected that Akram Shaikh had no power of attorney from Ijaz, however, Shaikh assured the commission that it would be submitted at the next hearing. In response to apprehensions expressed by Shaikh pertaining to Ijaz’s security, the commission said it was the duty of the government to provide him security when he visited Pakistan. “However, if a further request is made (by his lawyer) pertaining to security, personnel of Pakistan Army may be deployed in addition to Islamabad Police.”
Shaikh was of the view that since his client’s statements might upset some individuals that were part of the federal government, he could not rely on the security provided by Islamabad Police. “Mansoor has been receiving death threats from the same email address(es) from which he had been communicating with Husain Haqqani earlier in the year,” said Shaikh.
The lawyer also expressed trepidation that an intelligence agency might pick up his client, to which Justice Isa said: “Is he (Haqqani) a crystal-ball gazer?”
At one point, the interior secretary and attorney general had to face the wrath of the commission when they both declined to give assurance to the commission that no first information report (FIR) would be registered against Ijaz upon his arrival in Pakistan.
“The strategy of the government is to make the process difficult,” Justice Isa remarked. After not getting a straight reply from the secretary on the issue, Justice Isa warned him that he would be charged with contempt of court and asked him not to leave the court room. “Don’t make a mockery of the commission,” he said. However, towards the end of the proceedings, the attorney general told the commission that “if some federal law is violated (by Mansoor Ijaz), the matter will be brought to the notice of the Supreme Court.”
When he stated further that he was not in a position to make a commitment on behalf of the provinces in this regard, the commission ordered that the statement of the attorney general would apply to all provinces as well.
The commission also declined to hold an in-camera proceeding when Col Khalid, who represented the Inter-Services Intelligence (ISI), said ISI chief Lt Gen Ahmad Shuja Pasha would appear in an in-camera hearing. Justice Isa said there would be no secret briefings. He said if the ISI DG wanted to share something secret with the commission, he could just put it in a sealed envelope and present it to the commission secretary.
“We will see after receiving this envelope that which part of the information is sensitive and what should be made public,” he said.
The judge advocate general (JAG) of General Headquarters (GHQ), who appeared on behalf of the chief of army staff (COAS), told the commission that General Ashfaq Parvez Kayani was on a visit to China and that he had already submitted his affidavit to the Supreme Court in the memo case, adding that the COAS had nothing more to add to his response.
In his opening statement before the commission, Haqqani said he had no role in creating, drafting or delivering the memorandum to Admiral Mike Mullen. He said further: “I have no knowledge of the origin, authenticity and purpose of the memo.”
Forensic experts from the ISI and Federal Investigation Agency (FIA) briefed the commission about the possibility of retrieving BlackBerry messages allegedly exchanged between Haqqani and Ijaz. The two forensic experts, one from the ISI and the other from the FIA, told the commission about how the BlackBerry worked and the data retrieval process, but could not satisfy it to a great extent.
Col Khalid of the ISI apprised the commission members about how the data could be retrieved from the BlackBerry. He said there were three sources from where the data could be retrieved: from the handsets themselves, from the BlackBerry enterprise servers, and from the Call Data Records from the service providers. However, he added that he could not say anything for sure about the success and time frame in this regard because of different parameters applied by the users.
Another expert from the FIA, Ali Imran, told the commission that a user could avail the utility of ‘wipe’ to overwrite messages, which made it even harder to retrieve the deleted data. The commission directed all the parties in the Supreme Court to submit in writing whether they wanted to give evidence and tell commission their decision in this regard within two days.
The attorney general told the commission that the government had as yet not received any reply from RIM in response to its request for obtaining data. However, Brigadier Zulfiqar Ali, the focal person appointed by the Cabinet Division secretary on the issue, told the commission that RIM would make available the required data if a request was made through the Canadian High Commission in Islamabad. The commission directed the government to contact the Canadian High Commission for the purpose.
Extensive activity was witnessed in and around the courtroom of the Islamabad High Court because of the arrival of high-profile personalities. Security was on high alert as Haqqani and Pakistan Muslim League-Nawaz chief Nawaz Sharif made their appearance before the commission.
The hearing was later adjourned until Monday, January 16.