India-Pakistan: Mutual legal assistance

By B.Raman

(January 30, Chennai, Sri Lanka Guardian) The absence of major acts of jihadi terrorism in the Indian territory outside Jammu & Kashmir (J&K) since November 26,2008, is partly due to the disruption of the command and control of the so-called Indian Mujahideen and the Students Islamic Movement of India (SIMI), partly due to the continuous pressure exercised by the US on the Government of Pakistan to keep the anti-Indian jihadi organisations under control, partly due to the intensified monitoring of the activities of the Lashkar-e-Toiba (LET) by the US agencies after the discovery of the Chicago cell of the LET and partly due to the fact that the terrorists do require time to plan their acts of mass casualty or spectacular terrorism.

2. The disruption of the command and control of the IM and the SIMI has been made possible by the vigorous action taken against them by the Indian intelligence and police after the series of explosions in Bangalore, Ahmedabad and Delhi between May and September 2008. Many trained operatives of the IM and the SIMI are still absconding and have not been located and arrested. So long as they are not neutralised, the danger of a come-back will remain.

3. Despite our cynicism about the effectiveness of the US pressure against Pakistan, it will be churlish not to concede that the US has been more active and vigilant in Pakistan post-26/11 than it has been in the past.

4. The time factor is also important. Even the most well-funded, well-motivated and well-trained terrorist organisation---- whether it be Al Qaeda or the LET or any other organisation---- requires time to prepare and execute an act of mass casualty terrorism or a spectacular act, which gets considerable publicity, even if it does not cause large fatalities. Random explosions such as those organised by the IM and the SIMI do not require much preparation. One can have them at regular intervals provided one has the trained terrorists and the required materials for assembling an improvised explosive device.

5. Spectacular acts such as the Mumbai explosions of March,1993, the attack on the Indian Parliament House in New Delhi in December,2001, the suburbun train explosions at Mumbai in July,2006, and the 26/11 sea-borne attacks in Mumbai by the LET require a long time lead to prepare and execute. The fact that there have been only four such acts over a period of 17 years since March,1993, would show how much time is required between two successful acts of mass casualty or spectacular terrorism. The interrogation of David Coleman Headley of the Chicago cell of the LET has brought out that the LET took about two years to prepare for the 26/11 terrorist strikes. It took such a long time despite the fact that its activities were not closely monitored before 26/11 as they are now.

6. The 14 months of lull in major acts of jihadi terrorism in the Indian territory have enabled Shri P.Chidambaram, our Home Minister, to set in motion a comprehensive plan for revamping our counter-terrorism machinery. A good start has been made, but a lot still remains to be done.

7. This lull should also be utilised to revisit our policies towards Pakistan in respect of our fight against terrorism originating from Pakistani territory. Any re-examination of our policies should take into account the following ground realities.

* While tactically Pakistan may be observing some restraint due to the post-26/11 US pressure, strategically it has not given up its policy of using terrorism as a weapon against India to bring about a change in the status quo in J&K.
* The US seems satisfied so long as Islamabad observes a tactical restraint so that the US faces no complications in Afghanistan due to a fresh escalation of tensions between the two countries. The US has shown little interest in making Pakistan give up its strategic use of terrorism against India.
* The restraint exercised by Pakistan's military-intelligent establishment on the LET and other Punjabi terrorist organisations of ISI inspiration has been only in respect of their acts of terrorism in hinterland India outside J&K. It does not apply to their acts of terrorism against Indian interests in foreign territory such as Afghanistan and Bangladesh.

8. Should these realities be allowed to contribute to a rigidity in our relations with Pakistan with no scope of any flexibility or should we experiment with some flexibility in order to see whether it produces results? There is no need for a change in our present policy of no resumption of the formal composite dialogue with Pakistan till it gives up its policy of using terrorism and acts decisively at least against the LET, if not against other jihadi terrorist organisations.

9.At the same time, one has to recognise that the sequel to 26/11 has been qualitatively different from the sequels to March,1993, December,2001, and July 2006. Till today, Pakistan has not admitted that March,1993, December,2001 and July,2006, were planned in Pakistani territory with the collusion of the ISI and orchestrated from there. No arrests were made and no prosecution was launched in Pakistani territory.

10. However, in the case of 26/11, Pakistan has been forced to admit that the conspiracy originated in Pakistani territory and invloved important operatives of the LET, seven of whom have been arrested and prosecuted. We have valid reasons to suspect that Pakistan is not sincere in their prosecution and that they may ultimately be acquitted by the court after a charade of a trial.

11. We should not allow this suspicion----though well-founded--- to come in the way of our taking advantage of the seeming Pakistani willingness to co-operate with India in respect of action against those involved in the 26/11 terrorist strikes by establishing institutional linkages betweeen the National Investigation Agency of India and the Federal Investigation Agency (FIA) of Pakistan, which are responsible for investigation and prosecution of the 26/11 terrorist strikes and other major acts of terrorism.

12. Such institutional linkages could help in the long run in promoting habits of mutual legal assistance between the two countries. Such mutual legal assistance has been totally absent between the investigation agencies of the two countries ever since they became independent in 1947. Since 26/11, there has been an attempt by the US and others to nudge Pakistan into changing its policy of no legal assistance to India. The exchange of dossiers of evidence between the two countries since 26/11 has got vitiated by the critical public posture of the two countries, which has not helped in any significant forward movement.

13. Shri Chidambaram should take advantage of the forthcoming meeting of the Home/Interior Ministers of the SAARC countries in Islamabad next month to lay the foundation for such institutional linkages. He should attend the meeting accompanied not only by the Home Secretary, but also by the Director of the Instelligence Bureau, the Directors-General of the NIA and the Border Security Force (BSF) and Shri Rakesh Maria, Joint Commissioner of the Mumbai Police, who co-ordinated the investigation of the 26/11 terrorist strikes and have a comprehensive discussion with Mr.Rehman Mallik, the Pakistani Interior Minister, as to how to successfully prosecute the conspirators .He should also propose the setting up of a hotline between the DsG of the NIA and the FIA to push forward the implementation of the decisions taken away from the glare of publicity.

14. We already have a functioning hot line between the DsG of Military Operations of the two Armies. There is a need to supplement it with a hotline between the principal investigation agencies of the two countries.

15. This may please be read in continuation of my earlier article of January 14,2010, titled " India-Pakistan: Need For A Sub-Composite Dialogue".

( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-mail: seventyone2@gmail.com )