Syed Fai Defense Sentencing Memo

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Case 1:11-cr-00561-LO Document 59 Filed 03/26/12 Page 1 of 33 PageID# 492 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. SYED GHULAM NABI FAI, Defendant. ) ) ) ) ) ) ) Case No. 1:11-cr-561-LO Sentencing Date: March 30, 2012 DEFENDANT’S SENTENCING MEMORANDUM Syed Ghulam Nabi Fai submits this sentencing memorandum in support of his request for a sentence of probation with a lengthy period of home or community confinement, resti
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  1UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIAAlexandria DivisionUNITED STATES OF AMERICA ))v. ) Case No. 1:11-cr-561-LO)SYED GHULAM NABI FAI, ) Sentencing Date: March 30, 2012  )Defendant. ) DEFENDANT’S SENTENCING MEMORANDUM Syed Ghulam Nabi Fai submits this sentencing memorandum in support of his request fora sentence of probation with a lengthy period of home or community confinement, restitution,community service and a three year period of supervised release. The sentence requested is“sufficient, but not greater than necessary” to achieve the purposes of sentencing set forth in 18U.S.C. § 3553(a)(2).Dr. Fai is a 62 year old American citizen who was born in the disputed region of Jammuand Kashmir, India. 1 As set forth below, the seriousness of his offenses is substantially mitigatedby the unspeakable suffering of the Kashmiri people that motivated his crimes, as well as hisdemonstrated remorse. There is no need to imprison Dr. Fai to prevent him from committingfurther crimes, given his extraordinarily low risk of recidivism, as well as his recognition that hisconduct has destroyed his credibility as an autonomous interlocutor for peace among hissupporters and foes alike. 1 The territory referred to as Jammu and Kashmir is disputed among China, India and Pakistan.Pakistan refers to it as Indian-occupied Kashmir. The United Nations calls the territory Indian-administered Kashmir. The regions under the control of Pakistan are referred to as Pakistan-occupied Kashmir or PoK within India. Case 1:11-cr-00561-LO Document 59 Filed 03/26/12 Page 1 of 33 PageID# 492  2 I.   FACTUAL BACKGROUND Since 1989, almost 80,000 people have been killed in Kashmir. In 2010 there werenearly 700,000 Indian soldiers in Kashmir. After mass, non-violent uprisings in the streets of occupied Kashmir in 1989, members of the American Kashmiri community became active inurging the U.S. government to urge implementation of the United Nations Security CouncilResolutions on Kashmir and help bring peace to the disputed territory. In 1990, Dr. Fai andothers joined together to establish the Kashmiri American Council (KAC) with this samepurpose. Dr. Fai was elected by KAC’s board of directors as its first (and only) ExecutiveDirector. It has been his singular aim to bring all the parties to the conflict together, without pre-conditions, to reach a negotiated settlement.In the early 1990s, Dr. Fai was approached by an official at the ISI with an offer toprovide funding to KAC. The initial contact was made through a Pakistani American namedZaheer Ahmad. By accepting the funds offered by Pakistan, Dr. Fai hoped that KAC wouldbecome a financially robust organization capable of advancing the peace process in Kashmir.His approach since KAC’s inception was to find a solution to the stalemate by creating aconstructive atmosphere for dialogue between India, Pakistan and the Kashmiri leadership.Among other things, Dr. Fai organized international peace conferences to which he invitedgovernment officials, academics and interested parties from India, Pakistan and Kashmir.(Exhibit 1, Schedule and List of Speakers of Various International Kashmir Peace ConferencesOrganized by KAC). These costly conferences produced Conference Reports written byrenowned journalists (Exhibit 2, Conference Reports), as well as Conference Declarationsadopted in some instances by representatives from the governments of India, Pakistan and theregion of Jammu and Kashmir. (Exhibit 3, Conference Declarations). Dr. Fai also traveled to Case 1:11-cr-00561-LO Document 59 Filed 03/26/12 Page 2 of 33 PageID# 493  3over 40 countries seeking the support of government and non-governmental organizations,academics, journalists and representatives of the Kashmiri indigenous resistance seeking asolution to the Kashmir problem, consistent with the 17 United Nations Security Council andUnited Nations Commission for India and Pakistan (UNCIP) resolutions on the future status of Kashmir. (Exhibit 4, United Nations Resolutions).Because he needed financial resources, Dr. Fai was willing to accept funding from anydonor that was willing to contribute as long as there were no strings attached to the receipt of thefunds. He knew, however, that disclosing the fact that Pakistan was funding KAC’s programsand initiatives would undermine his credibility with his constituents and particularly withgovernment of India and the indigenous Kashmiri resistance.The United States and the defense strongly disagree about the significance of the schemeto conceal the source of funds KAC received from Pakistan. For this reason, the defensebelieves it is important to dispute mischaracterizations of the offense conduct such as thestatement of a confidential witness in ¶ 13 of the Presentence Report that “the ISI created theKAC to propagandize on behalf of the government of Pakistan” and “the ISI has been overseeingthe defendant for decades.” It should first be said, however, that Dr. Fai fully admits that heengaged in the conduct set out in the Criminal Information and Statement of Facts. He readilyadmitted concealing his connections with Pakistan in documents filed with the Internal RevenueService and in statements to the federal agents investigating his activities. He also admitted thathe knowingly provided straw donors with letters supporting fraudulent charitable deductionsthey intended to claim on their personal income tax returns and is therefore responsible for$344,150 in unpaid taxes. Case 1:11-cr-00561-LO Document 59 Filed 03/26/12 Page 3 of 33 PageID# 494  4At the same time, Dr. Fai strenuously denies that his advocacy on behalf of Kashmir wasever influenced by the official or private positions supported by the government of Pakistan, orthat he acted as an agent of Pakistan, or a mouthpiece for its agenda on Jammu and Kashmir.Rather, his role as a neutral arbiter is captured in a briefing paper he presented to PresidentGeorge W. Bush in June 2007:“We do not wish to propose a solution of the problem. We wish that the partieswork it out themselves. But I cannot imagine any reasonable solution which willnot mean some gain and some loss on all sides . . .“It should not be futile now to ask that Kashmir be looked at not as a dispute between India and Pakistan but as a problem of  India and Pakistan together.”Among the guiding principles he offered for the negotiation process was:“Fourth, its object should be not to answer what is the correct or best solution of the Kashmir problem but how that solution can be arrived at. In other words, itshould by itself neither promote nor preclude any rational settlement of thedispute, be it accession or autonomy or independence or quasi-independence orcondominium or some kind of joint management. Rather than seek to impose asettlement on Kashmir, it should engage the people of each region of the formState of Jammu and Kashmir to work out a settlement themselves without anyexternal constraint.”(See Exhibit 5, Briefing Papers for the Bush and Obama Administrations). These views are alsopervasive in Dr. Fai’s speeches and writings. (Exhibit 6, Conference Speeches of Dr. GhulamNabi Fai); (Exhibit 7, Articles Written by Dr. Ghulam Nabi Fai); (Exhibit 8, Papers Written byDr. Ghulam Nabi Fai). These principles are also reflected in the correspondence he receivedfrom government officials in the United States and abroad. (Exhibit 9, Correspondence fromOfficials in the United States and Abroad).The purpose of the scheme was always to obtain money to fund the operations of theKAC to support peace in Kashmir. The srcins of Dr. Fai’s motivations are deeply rooted in hischildhood: Case 1:11-cr-00561-LO Document 59 Filed 03/26/12 Page 4 of 33 PageID# 495
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