Khalid Sheikh Mohammad (KSM) is being projected by US officials and the army of so-called non-governmental counter-terrorism experts, who have sprung up since 9/11, as if he is the Field-Marshal Montgomery or Gen. Patton or Gen. Rommel of Al Qaeda, but his case is getting curiouser and curiouser -- just like the earlier case about the kidnapping and murder of Daniel Pearl, the US journalist.
Remember the Pearl case? Pakistan's Inter-Services Intelligence (ISI) claimed to have solved the case, without recovering the dead body, and prosecuted Sheikh Omar and his accomplices. The court was told that they were the only plotters who deserved to be convicted and sentenced to death.
Even as the trial was mid-way through, Pakistani security agencies, while investigating another case, fell upon a group of some other terrorists belonging to the Lashkar-e-Jhangvi (LEJ) and the Harkat-ul-Mujahideen (International). During the interrogation, they surprised the Pakistani and the US intelligence agencies by claiming that it was they who had killed Pearl. They led the police to a spot on the outskirts of Karachi where the remains of Pearl were found buried. Forensic tests confirmed them to be those of Pearl and they were subsequently handed over to his widow.
Under the law, when a confession made by a suspect leads to some material recovery such as a murder weapon or a dead body, there is an automatic presumption that the entire confession is correct. So, if the Pakistani and US agencies had followed the due process of law, they should have withdrawn the case from the court, re-investigated it and submitted a fresh charge-sheet.
They did nothing of the sort.
Instead, they kept away from the court the information about the recovery of the remains of Pearl and the arrests of new suspects. When the defence counsel for Sheikh Omar asked the court to take cognisance of the media reports in this regard and order a re-investigation, it declined to do so. It sentenced Sheikh Omar to death and the other accused to life imprisonment. The appeals filed by them have not yet been disposed off because Pakistani officials have not yet been able to sort out the confusion created by the recovery of the remains of Pearl on information provided by some terrorists, who had not been prosecuted in the case.
On March 1, 2003, a joint team of the ISI and the US intelligence raided a house in Rawalpindi in an area where many retired officers of the Army and the ISI live and arrested three persons, one of them a Pakistani. One of the arrested persons was identified as KSM and he was handed over to the US intelligence officials, who flew him out to the US naval base in Diego Garcia, where a secret detention centre has been functioning since March, 2002, away from the prying eyes of the media and the international human rights organisations.
US officials and the Arthur Koestlers of the war on terrorism went to town with fanciful accounts of what a great catch it was, what a spectacular success for the US and Pakistani agencies etc. One ex-CIA official even claimed that it was the greatest arrest ever made in the fight against terrorism since the second World War. KSM was made into a legend just as they had made Osama bin Laden into one after 9/11. They had earlier projected bin Laden as if he was one of those innumerable dods in Hindu mythology, with 10 heads, 20 arms and 20 legs, present anywhere and everywhere. Another similar god was created in the personage of KSM.
Even as this legend was filling up media space, the Pakistani authorities did a volte face within 24 hours and denied that KSM had been taken out of Pakistan. He was being interrogated in Pakistani territory by Pakistani officials, they maintained. Faisal Saleh Hayat, Pakistan's Interior Minister, even denied that US had requested for his extradition. He added that KSM would first be tried in Pakistan for offences in which he was suspected before considering his extradition. He made the confusion more confounded by saying that since KSM is a Kuwaiti national, if at all he is extradited, he would be sent to Kuwait and not to the USA.
Why this confusion? No credible answer is available. As it generally happens, there are speculations galore in Pakistan, uncorroborated by evidence. Amongst such speculations are:
- When the Americans took KSM to Diego Garcia, they realised there had been a wrong identification. They handed him back to the ISI and asked it to handle the mess as best as it can.
- An official of the ISI brought to the notice of his seniors that after the encounter in Karachi on September 11, 2002, in which Ramzi Binalshibh was captured, the officer in charge of the raid had submitted a report to the headquarters claiming to have killed KSM and buried his body without informing the Americans about it.
- The defence counsel of Sheikh Omar has drawn the attention of the appeals court to the reports in the foreign media that it was KSM who had masterminded the kidnapping and murder of Pearl and pointed out that handing him over to the US without trying him in Pakistan vitiated the case against his client.
Pakistani officials have further tied themselves into knots by stating that KSM is in their custody. If so, his friends and relatives are entitled to move a writ of habeas corpus for producing him before a court. Officials of the Jamaat-e-Islami (JEI) have already announced their intention to do so and the ISI has been trying frantically to pressurise them not to do so.
The Pakistani Supreme Court, while pronouncing judgement in a different case on March 3, 2003, has added to the confusion by ruling that Al Qaeda is not a terrorist organisation under Pakistani laws since the Musharraf Government has not so far declared it to be so.
On August 14, 2001, Musharraf declared the Lashkar-e-Jhangvi and the Shia extremist Sipah Mohammad as terrorist organisations. On January 15, 2002, he added the Lashkar-e-Toiba (LET), the Jaish-e-Mohammad (JEM), the Sipah-e-Sahaba Pakistan (SSP), the Tehrik Jaffria Pakistan and an organisation active in the Federally-Administered Tribal Areas (FATA) to this list. But, till today, he has not declared Al Qaeda, the Taliban, the HUM and the Harkat-ul-Jihad-al-Islami (HUJI) as terrorist organisations.
The SC has ruled that Al Qaeda could not be called a terrorist organisation in Pakistan till the Government issued a notification under the Anti Terrorist Act (ATC) of 1997 to declare it to be so.
What has been happening in Pakistan would make a good case study of how not to wage a war on terrorism.
(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, and, presently, Director, Institute For Topical Studies, Chennai, and Convenor, Advisory Committee, Observer Research Foundation (ORF), Chennai)