IN their war against terrorism whether home grown or external, the US Executive, the Judiciary and the Legislature (US Congress) are united but in India it is not the case and the Executive, Judiciary and Legislature are often seen disjointed or working at cross purposes. Whereas the US Executive is focused and systematic in fighting terrorism the Indian Cabinet under the UPA is confused and wavering from one knee jerk response to another.
In wake of September 11, 2001 strike on the World Trade Centre complex in New York the US domestic laws were strengthened in form of the US PATRIOT Act, single window to handle terrorism in form of the Department of Home Security was created and the US military was deployed abroad to defeat terrorists on their own home territories rather than face them on US territory. It is called the doctrine of pre-emptive strike and in pursuance of this doctrine George W Bush, the then US President, sent US military to Afghanistan as Osama bin Laden, chief of Al Qaeda was based there in Afghanistan. US sources believe that Osama is currently living in Pakistan controlled areas of FATA or NWFA.
The object of the PATRIOT Act is ‘To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes’. Its full form is ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’’ (HR 3162, October 2001)
Barack Hussein Obama who took over the US Presidency in January 2009 did not dismantle the PATRIOT Act enacted during the Bush Presidency nor disowned the doctrine of pre-emptive strike by letting the US military complete its task in Afghanistan. In fact, Obama is sending 30,000 more US troops to Afghanistan before process of pulling out US troops from Afghanistan is set in motion in July 2011. One does not know how long the withdrawal would take.
On May 13, 2010 at a hearing of the House Judiciary Committee when Rep. Lamar Smith (R-Tex.) asked Attorney General Eric Holder: “Do you feel that these individuals might have been incited to take the actions that they did because of radical Islam?” Holder replied: “There are a variety of reasons why I think people have taken these actions. . .”
Holder’s avoidance of the obvious (i.e. naming Radical Islam) is seen as the absurd and embarrassing refusal of the Obama administration to acknowledge who is trying to kill Americans and why. In fact, it is alleged to have banned from its official vocabulary the terms jihadist, Islamist and Islamic terrorism.
So Obama is being seen in some sections of US as ‘soft’ on Islamic terrorism as his Administration is seen shying away from placing jihadi ideology at the centre of the war against terror. Though unlike Manmohan Singh, Obama has not yet diluted US military and Police pressure.
In India, the Manmohan Singh Government has refused to challenge terrorists militarily on home grounds of terrorists and in 2004 dismantled the POTA law just to appease Muslims. POTA was enacted to fight terrorists more effectively by the AB Vajpayee Government in wake of Islamic terrorist attack of December 2001 on the Indian Parliament. POTA had come into force in June 2002.
The POTA had replaced an earlier anti-terrorism law known as the Terrorist and Disruptive Activities (Prevention) Act, which was allowed to lapse by the P V Narasimha Rao Government back in 1995 just to appease Muslims.
Vajpayee’s Government said POTA was India’s boldest initiative to fight terrorism, disband terrorist outfits, and choke terror funding. It allowed the detention of a suspect for upto 180 days without the filing of charges in court, to withhold the identities of witnesses and to treat a confession made to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court, but not under POTA. The Vajpayee government had banned 32 organisations under the anti-terrorism legislation.
In view of rising incidents of terrorism the UPA had to enact – ‘The National Investigation Agency (NIA) Act’ and the amendments to the ‘Unlawful Activities Prevention Act (UAPA)’. The UAPA amendment has many provisions of POTA. Whereas POTA and TADA laws were temporary provisions requiring renewals the UAPA provisions are permanent i.e. do not require renewal from time to time. It is a plus point in favour of the UPA Government. But official pronouncements of UPA Government to appease Muslims deter officers from using pro-actively amended UAPA provisions with the result number of Islamic and Naxal terrorist attacks are on the rise.
It is known that the Bush administration had put rewards on capture of Osama bin Laden dead or alive. Though officially not accepted American media reports that Obama has secretly approved a list of terrorists including American citizens (for example Aulak, a naturalised American citizen who preaches hatred against US and is currently hiding in Yemen) who could be killed by US security agencies. The UPA Government is not known to have such hit list.
On the contrary in India whenever police gun down terrorists based on field intelligence they are accused of fake encounters by Marxists, by media and are called upon by judiciary to justify encounters and policemen often land up in jails facing charges of murder. This in turn demoralises Indian security personnel who are thus forced to give up their pro-active approach in fighting terrorists and play safe by rule book which in turn has boosted morale of terrorists.
No wonder, number of terrorist incidents in India is going up year by year so much so the USA, Canada, Australia, the UK and other countries have issued time and again travel advisories to their citizens that terrorism threat was real in India.
This mind set of calling every encounter as fake by some media and then Government setting up judicial enquiries must stop. In actual practice a public servant posted on operational side has to take decision and act within a short time based on such pieces of information which are developing, are not perfect; and, if he waits till ‘perfect’ information comes in it may be too late to act inviting tag of ‘incompetence’. Only senior officers of that department can appreciate and understand what is called professional hazards, professional constraints, professional stress and these hazards cannot be understood by journalists and jurists sitting in comfort of their air conditioned offices.
I would suggest that where Ministers want a complaint of fake encounter looked into rather than setting up a judicial enquiry a group of three serving officers of that department should be asked to see if based on inputs relied upon by accused officials it was reasonable for any civil servant to have acted in similar manner in which official(s) accused had acted. And if this group affirms the Government should never give permission to prosecute them.
Professional hazards are relevant material factors affecting all decisions so should be kept in sight by Ministers and judges.
The Times of India (July 5, 2010) quoted Pakistani American terrorist David Coleman Headley (Daood Gilani) confirming that Ishrat Jahan, the Mumbai girl who was killed along with three alleged terrorists in June, 2004 in a police encounter, was indeed a Lashkar-e-Taiba fidayeen. Ishrat, Javed Shaikh and two Pakistani nationals-Amjad Ali and Jishan Johar Abdul Ghani were killed. In June 2004, LeT had owned Ishrat as a fidayeen but later denied just before Gopinath Pillai, father of Javed Sheikh alias Pranesh Pillai filed a petition in the Supreme Court demanding a CBI probe into the encounter. How any Indian authority can prove that one is a member of Pakistan based LeT, intelligence report may or may not be 100 per cent correct but policemen in field have to take intelligence report as reliable and have to act upon it quickly.
Showing judicial support to the US executive infight against terrorism the US Supreme Court on June 21, 2010 upheld a federal law that forbids providing training and advice to terrorist organisations even about entirely peaceful and legal activities, saying it does not violate the free speech rights of those who want to help. The case is Attorney General Holder v. Humanitarian Law Project. The Court ruled 6 to 3 that US Congress and the executive branch had legitimate reasons for barring “material support” to foreign organisations deemed to be terrorist under the USA PATRIOT Act.
It is easy to see how money is “fungible,” US Chief Justice Roberts wrote; funds used for humanitarian aid to the (terrorist) groups could free up money that could be used for violent ends. And he said the same was true of “material support.” “It also importantly helps lend legitimacy to foreign terrorist groups-legitimacy that makes it easier for those groups to persist, to recruit members and to raise funds-all of which facilitate more terrorist attacks.” In view of this ruling it is unlawful for US advocates to give legal advice to terrorist organizations.
An organization called the Humanitarian Law Project wanted to train a group called the PKK in using humanitarian and international law to aide Kurds in Turkey. Jeyalingam, a physician, wanted to assist the Liberation Tigers of Tamil Eelam in Sri Lanka with legal advice on behalf of the Tamil Tigers.
In the past year, the US Justice Department identified roughly a dozen terrorism plots on US soil involving American citizens or permanent legal residents. At the center of the most recent is Faisal Shahzad, a naturalised US citizen of Pakistani origin arrested in the attempted bombing in Times Square in May 2010. Shahzad told the US trial Court: “One has to understand where I’m coming from . . . I consider myself a mujahid, a Muslim soldier.”
Americans like Indians do not realise that some madarsas in the US (and in India) are injecting their Muslim followers with hatred against non-Muslims. That is how there are home grown Islamic terrorists both in the US and in India.
Shahzad is a MBA from an US University (Bridgeport) and had a good job in USA on H1B visa so Islamic terrorism is not guided by poverty and deprivation as is generally made out by Hindu Marxists. Pirbhai , an Indian terrorist working for Indian Mujahidin and the Students Islamic Movement of India (SIMI) arrested in Pune had Rs 18 lakh per annum job in a MNC. Many Islamic terrorists arrested in India had professional degrees.
In May 2010, in sponsoring the Terrorist Expatriation Act, Sens. Joseph I. Lieberman (I-Conn.) and Scott Brown (R-Mass.) proposed to revoke the citizenship of any American who provides “material support or resources to a foreign terrorist organisation” or who engages in or “purposefully and materially” supports “hostilities against the United States.” It was also co-sponsored by Rep. Jason Altmire (D-Pa.) and Charlie Dent (R-Pa.).
They argue that the legislation is needed to prevent US citizens enmeshed in terrorism activities from freely moving about using a US passport, including to re-enter this country. Threat of expatriation could help reduce the number of Americans recruited by terrorist groups since ex-citizens would be less useful. This Bill shows bipartisan approach of US legislators to fight terrorism.
Compared to steps taken and being taken by the US Government the UPA Government does not appear to be sincere to fight terrorism. So BJP president Nitin Gadkari is factually right when on July 1, 2010 he asserted at Ratlam, Madhya Pradesh that the Congress-led UPA Government was not serious about internal and external security threat.
(The writer belongs to the 1971 batch of the Indian Foreign Service and served as Ambassador, High Commissioner to many countries. Contact: [email protected] and www.opgupta.org)