Clinching Evidence?

In an interview to Shri Karan Thapar of the CNN-IBN channel on October22, 2006, Shri M.K.Narayanan, the National Security Adviser (NSA) to the Prime MinisterDr Manmohan Singh, tackled some of the questions, which had been raised by skeptics, including this writer, regarding the advisability and the feasibility of the idea of an Indo-Pakistan joint anti-terrorism mechanism agreed to by the Indian Prime Minister and President Pervez Musharraf of Pakistan during their meeting on the margins of the non-aligned summit at Havana last month.

The joint statement issued at Havana had said:

"The two leaders met in the aftermath of the Mumbai blasts. They strongly condemned all acts of terrorism and agreed that terrorism is a scourge that needs to be effectively dealt with. They decided to put in place an India-Pakistan anti-terrorism institutional mechanism to identify and implement counter-terrorism initiatives and investigations."

Before analysing Shri Narayanan's interview, one needs to highlight what has been the attitude of successive Pakistanileaderships�"military or political�"to the question of counter-terrorism co-operation with other countries. This can be discussed under twoheads�"counter-terrorism co-operation with countries other than India and co-operation with India.

Pakistan has generally co-operated with other countries provided such co-operation was perceived by its leadership to be in its national interest. This co-operation has been in the followingforms�"arresting and handing over to other countries terrorist suspects wanted by them for investigation and allowing foreign investigating officers to interrogate suspects held in Pakistani custody. Such co-operation has been extended irrespective of the religion of the suspects and irrespective of the fact whether there was an extradition treaty with the country seeking custody of a suspect. In fact, the Pakistani authorities generally follow the practice of informally handing over a suspect to a foreign country without showing his arrest on paper because if he is shown on record as arrested, the Pakistani judiciary comes into the picture and its orders have to be obtained before handing him over.

Some examples of such informal handing-over are of Ramzi Yousef, wanted by the US in connection with the New York World Trade Centre explosion of February,1993, Abu Zubaidah, Ramzi Binalshibh, Khalid Sheikh Mohammed, Abu Faraj al-Libi and others associated with Al Qaeda and the brother of Hambali, the leader of the Jemmah Islamiya (JI), wanted by the Indonesian authorities.

Some examples of foreign investigating officers being allowed to question suspects in Pakistani custody are of Pakistani nuclear scientists Sultan Bashiruddin and Abdul Majid, both suspected of contacts with Osama bin Laden.

However, there are two categories of cases where the Pakistan Government has refused to co-operate or avoided co-operating with even other countries. The first category relates to cases where the Pakistani authorities fear that co-operation with other countries might result in self-incrimination, that is the Pakistani State incriminating itself in wrong-doings. Examples would be its refusal or reluctance to hand over Omar Sheikh, involved in the kidnapping and murder of Daniel Pearl, to the US, Dr.A.Q.Khan, the so-called father of the Pakistani atomic bomb, to the International Atomic Energy Agency (IAEA) in Vienna and Rashid Rauf, arrested in August in connection with the plot to blow up US-bound planes, to the UK.

Its reluctance to hand over Omar Sheikh is due to the fact that he was reported to have told the Pakistani Police during his interrogation that during a visit to Kandahar before 9/11 he had come to know of Al Qaeda's plans for the 9/11 terrorist strikes in the US and had passed on the information toLt Gen.Ehsanul Haq, the then Pakistani Corps Commander in Peshawar. The Pakistani authorities are afraid that if he is handed over to the US and repeats this statement to the US interrogators, this could implicate the State of Pakistan in the 9/11 terrorist strike by raising questions as to why the information allegedly given by Omar Sheikh was not immediately passed on to the US.

Its reluctance to hand over Dr.A.Q.Khan is due to a fear that he might tell his foreign interrogators that the political and military leadership was aware of whatever he did and he had their approval. Fear of public demonstrations in Pakistan, where A.Q.Khan is a national hero, is another factor behind Pakistan's reluctance.

The reluctance to hand over Rashid Rauf was due to his association with the Jaish-e-Mohammad, whose Amir Maulana Masood Azhar is related to him by marriage, and his three-year stay in Bahawalpur where part of the training infrastructure of the Jaish-e-Mohammad (JEM) and the Lashkar-e-Toiba (LET) is located and where, according to the Mumbai Police, some of the perpetrators of the Mumbai blasts of July 11,2006, were trained in an LET training camp. The Pakistani authorities apparently worry that he might tell the British about the activities of the JEM and the LET directed against India.

The second category relates to cases where Pakistan perceives that it would not be in its strategic interest to co-operate. The most important example of this is its non-cooperation with the Hamid Karzai Government in Afghanistan in the arrest and handing over of the Pakistan-based leaders of the Neo Taliban. Pakistan vehemently denies their presence in its territory.

In the case of India, Pakistan's co-operation has been only in respect of non-Muslim suspects and not Muslimsuspects�"whether the Muslims be Indian or Pakistani nationals. Even in respect of non-Muslim suspects, to my knowledge, there has been only one instance of co-operation when it pushed across the border after informing the Indian authorities beforehand four Sikh deserters from the Indian Army, who wanted to join the so-called Khalistan movement.

This was when Mrs Benazir Bhutto was the Prime Minister between 1988 and 1990. She was accused by the opposition and the religious leaders of letting down the Khalistan movement and of being an agent of the Research & Analysis Wing (R&AW), India's external intelligence agency. This was one of the factors which led to her dismissal in August,1990, by the then President Ghulam Ishaq Khan, at the instance ofGen Mirza Aslam Beg, the then Chief of the Army Staff (COAS).

Even in respect of non-Muslim suspects, there are instances where Pakistan has refused to co-operate. Examples are those of Gajendra Singh of the Dal Khalsa, who hijacked an Indian Airlines plane to Lahore in 1981 and of Wadhwa Singh, a leader of the Babbar Khalsa, which was involved in the blowing-up of the Kanishka aircraft of Air India in June,1985 off the Irish coast. In both cases, Pakistan fears the danger of self-incrimination if they are handed over to the Indian authorities. It, therefore, denies their very presence in Pakistani territory.

As regards Muslim suspects, Pakistan has over the years followed a policy of not handing them over toIndia�"whether they are Indian or Pakistani Muslims�"and not co-operating in the investigation and prosecution of cases againstthem�"whatever be the offence. We may project ourselves as a secular state, but large sections of public opinion in Pakistan view India as a Hindu state which was once ruled by the Muslims. The religious elements think that handing over a Muslim to India would amount to an act ofapostasy. They have no qualms over handing over a Muslim criminal or suspect to a Christian State such as the US, but strongly object to handing them over to a Hindu State.

There are two other reasons for Pakistan's reluctance to co-operate with India against Muslim suspects. The first is the perceived danger of self-incrimination since it uses the jihadi terrorists as a weapon against India to achieve its strategic objective. The second reason is the fear that by co-operating with India it may lose the only strategic weapon it has against India.

The policies of successive Pakistani Governments over the years has been:

• To refuse to co-operate with India in respect of acts of terrorism in Jammu and Kashmir (J&K) on the ground that there is no terrorism in J&K and that it is a freedom struggle.
• To condemn acts of terrorism by jihadi elements in the Indian territory outside J&K, but deny the involvement of Pakistani nationals.
• When India produces evidence of the involvement of Pakistani nationals, to debunk the evidence and refuse to act on it.
• When India produces evidence of the involvement of Indian Muslims based in Pakistani territory, not to question the credibility of the evidence of their involvement, but deny their presence in Pakistani territory.

Does the Havana Agreement indicate a change in the policies hitherto followed by Pakistan? From a study of the statements and comments of Pakistani officials on the significance of the Havana statement, the following points are clear:

• There has been no change in Pakistan's policy of not co-operating with India in respect of terrorism in J&K. It continues to insist that what has been going on in J&K is a freedom struggle and that participants in the freedom struggle cannot be projected as terrorists.
• There has been no change in Pakistan's policy of denying the involvement of Pakistani nationals in acts of terrorism in Indian territory outside J&K.
• There has been no change either in denying the presence in Pakistani territory of the Indian Muslims and non-Muslims involved in terrorist acts of the past for whom red corner notices have periodically been issued by the INTERPOL.
• However, Pakistan has an open mind in respect of the Mumbai blasts of July 11,2006, and future acts of terrorism and might help in the Indian investigation if the evidence produced by India is satisfactory.
• Even this would depend on India's reciprocity in instances in which Pakistan seeks Indian assistance. There have been hints that Pakistan would expect this reciprocity in respect of its investigation of the acts of violence by the Baloch nationalist elements.

Dr Manmohan Singh's pre-Havana observations, while on his way to Havana, in which he, for the first time by any Indian leader, projected Pakistan as a fellow-victim of terrorism shocked many in India since it seemed to mark the presage of adilution--"if not abandoning--"of India's public diplomacy against Pakistan on the question of its use of terrorism as a weapon against India. This public diplomacy was initiated whenMrs Indira Gandhi was the Prime Minister in the early 1980s, continued under Rajiv Gandhi and stepped up under Narasimha Rao. The Bharatiya Janata Party ledgovernment kept it up. Many, including this writer, got the impression that the Prime Minister has made a major U-turn in this policy, which would prove counter-productive.

Public diplomacy against a State-sponsor of terrorism is an important component of counter-terrorism. Our public diplomacy against Pakistan has been based on highlighting continued Pakistani inaction against the anti-Indian jihadi terrorist infrastructure based in Pakistani territory and Pakistan's non-co-operation in the investigation and prosecution of persons involved in acts of jihadi terrorism. Many countries of the world, including even the US, had always agreed with the Indian stand that Pakistan had not acted against the terrorist infrastructure and kept up pressure on Pakistan on this issue. However, they avoided taking a stand on Pakistan's non-cooperation in providing mutual legalassistance. Before and in Havana, the Prime Minister remained silent on the question of Pakistan's inaction against the terrorist infrastructure. The dilution, if not abandoning, of this public diplomacy would help Pakistan in escaping from the pressure of the international community.

In his interview, Shri Narayanan has sought to remove any impression that there has been any U-turn in the Prime Minister's policy. He attributed the Prime Minister's silence on this subject to his desire not to get involved in a slanging match with Musharraf. Shri Narayanan himself did not mince his words while talking of the continued involvement of Pakistan's Inter-Services Intelligence (ISI) in acts of terrorism in Indian territory. He did not hesitate to name the ISI and Pakistan directly instead of indulging in euphemisms.

He made three significant observations on the proposed bilateral institutional anti-terrorism mechanism:

• First, it would not involve any intelligence-sharing arrangement. It will be purely an evidence-sharing arrangement to facilitate the investigation and prosecution of terrorism-related cases. The evidence collected by the Indian investigators, which call for follow-up action by Pakistan, will be passed on to the Pakistani authorities for follow-up action. If they continue to follow a policy of avoiding follow-up action under some pretext or the other, India might conclude that the mechanism is not serving the purpose for which it was set up and might not hesitate to discontinue it.
  
  
• Second, the mechanism would enable India to test Pakistan's sincerity.
  
  
• Third, it would go into action whenever there is an act of terrorism.

From his observations, it is clear that the government does not view the mechanism as having any preventive role, which would require intelligence sharing, but purely a facilitating role to help the investigation and prosecution of acts of terrorism after they have beencommitted. His ruling out any intelligence-sharing with Pakistan is understandable. If we share any intelligence with Pakistan, that would enable it to identify our sources and put them out of action or identify the links being intercepted by us and abandon their use.

Evidence-sharing also has pitfalls when dealing with an adversary such as Pakistan. So too giving publicity to evidence collected. Premature sharing of the totality of evidence, before an investigation has been completed and theprosecution launched, might enable Pakistan to have an idea of what the suspects and witnesses have been telling the police during their interrogation and cover up their tacks. Shared documentary evidence can also enable Pakistan to identify the sources which gave the documentary evidence and act against them. During the investigation of the Mumbai blasts of March,1993, disclosure by the Maharashtra authorities to the media of the fact that the Indian intelligence had managed to obtain xerox copies of the passenger manifests of the Pakistan International Airlines flights by which the perpetrators travelled to Karachi from Dubai for training and returned from there enabled them to identify the source who gave these xerox copies and have him sacked. Thus, the evidence sharing also to be selective and on a case-to-case basis.

It is important to lay down in detail and in writing the ground rules which would govern our approach to this mechanism. One wishes Shri Karan Thapar had drawn the attention of Shri Narayanan to the fact that we already have a mechanism under the umbrella of the INTERPOL for mutual legal assistance in investigation and prosecution, which has not been functioning satisfactorily due to Pakistani non-co-operation and asked what was the need for another mechanism, when even the existing one has not been functioning well. The Central Bureau of Investigation (CBI) functions as the nodal agency under the existing mechanism. Pakistan's stonewalling tactics has rendered it ineffective.

Shri Narayanan's observation that the evidence so far collected by the Mumbai Police regarding the involvement of the ISI in the Mumbai blasts of July11, 2006, is very good, but not yet clinching has come in for some criticism. Evidence of the involvement of a foreignstate�"or for that matter even an individual�" in an act of terrorism is of four kinds:

• Direct, but oral in the form of confessions of the perpetrators and statements of other witnesses other than the actual perpetrators.
• Indirect and circumstantial.
• Material such as the recovery of timers and other gadgets of Pakistani origin issued to the terrorists from Pakistani government stocks.
• Documentary such as copies of the passenger manifests of the flights by which the perpetrators went to Pakistan for training and returned from there.

Material and documentary evidence is usually described as the clinching evidence or the smoking gun. During the investigation of the Mumbai blasts of March,1993, the Mumbai Police and the intelligence agencies were able to collect all the four kinds of evidence to prove the involvement of the ISI. When Shri Narayanan said that the evidence collected so far is very good, but not yet clinching, he apparently meant that the evidence collected so far isdirect, indirect and circumstantial, but they are yet to collect material and documentary evidence. This was apparent even from the press conference held by the Commissioner of Police of Mumbai. Collection of material and documentary evidence takes time. It took five months in 1993.

There may be instances in which material and documentary evidence may not become available at all. This does not necessarily weaken the culpability of the accused. In many terrorism-related cases, Western courts have held that convictions can be based purely on confessions, statements and circumstantial evidence if they corroborate each other and there is a continuous chain of evidence. Many convictions in the case relating to the explosion in the New York World Trade Centre in February 1993 were awarded purely on the basis of confessions, statements and circumstantialevidence. The absence of material and documentary evidence so far only shows that this time the ISI has taken greater care to maintain the deniability of its involvement. It does not weaken the credibility of the other evidence collected regarding its involvement.