Notwithstanding hyperbole over US-India counterterrorism partnership, Washington on Wednesday disappointed New Delhi and moved to give immunity to Pakistan’s Inter Services Intelligence (ISI) and its former top officials from a lawsuit that was filed in a New York court in connection with the 26/11 terrorist attacks in Mumbai.

New Delhi expressed its “serious disappointment” over the US government’s position that Pakistan’s ISI and its former chiefs Ahmed Shuja Pasha and Nadeem Taj “enjoy immunity” in a civil suit filed against them in connection with the November 26-28, 2008 attacks in Mumbai.

“The leadership of the US has publicly stated its commitment to counter terrorism, to dismantle terrorist infrastructure in Pakistan and to bring those responsible for the Mumbai terror attacks to justice. In this context the decision of the US authorities in this case is a cause of serious disappointment,” Syed Akbaruddin, official spokesperson of the Ministry of External Affairs, said in New Delhi.

The lawsuit was filed in the US Federal Court in the Eastern District of New York by the relatives of the 26/11 victims Gavriel Noah Holtzberg and his wife Rivka, alleging that the ISI provided support to the terrorist outfit Lashkar-e-Toiba to carry out the November 26, 2008 attacks in Mumbai.

James P Kriendler, the lawyer representing the relatives of the two victims, told Deccan Herald that the US government’s position would surely weaken the case against the ISI and its former chiefs. “It undoubtedly weakens the case. But we are exploring the options available to us and we will continue to fight to pursue the case for the US citizens who were killed by the terrorists in Mumbai,” Kriendler said over phone from New York on Wednesday.

Holtzberg, a rabbi from Brooklyn in New York, and his pregnant wife, Rivka, were killed by terrorists at Chabad Lubavitch in Mumbai during the 26/11 attacks.

On November 19, 2010, Holtzbergs’ relatives, represented by law firm Kriendler & Kreindler LLP, filed the civil suit against the plotters and perpetrators of the terrorist attack and their supporters. Apart from the LeT, the Inter Services Intelligence, its current chief Ahmed Shuja Pasha and his predecessor Nadeem Taj as well as Major Iqbal and Major Ali (both understood to be officials of the spy agency of Pakistan) are defendants in the case.

But the US government has now filed a 12-page affidavit in the court stating that the ISI was entitled to immunity, because it was part of a foreign State within the meaning of the US Foreign Sovereign Immunities Act. “Furthermore, the Department of State has determined that former Directors General (of the ISI) 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,” Stuart Delery, the Principal Deputy Assistant Attorney General of the American Government, stated in the affidavit to the court.

“We have been arguing that the ISI acted on its own and out of the control of the Government (of Pakistan) to support the LeT in the attacks in Mumbai and thus cannot enjoy immunity. But the position taken by the US government has indeed caused a setback for us,” said Kriendler.India on Wednesday strongly reacted to the US government’s move and said that “any organisation, State or non-State,” could not enjoy immunity if it was sponsoring terrorism. “For India, it remains of vital importance that justice is done and that those who organized and perpetrated this horrible crime be brought to justice, irrespective of the jurisdiction under which they may reside or be operating,” said Akbaruddin. “Our position has been made known to the US consistently.”

The US court had last year summoned Pasha and Taj. But the ISI had moved the court seeking dismissal of the lawsuit, claiming that the agency was a part of Pakistan government and hence it and its directors were immune from any legal action in the US.