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Enforce POTO before it's too late

B. Raman

THE need to provide the police and the counter-terrorism (CT) agencies with adequate powers, if necessary through special legislation, to deal effectively with terrorism was accepted before September 11, even in countries where the rule of law is supreme such as the UK, the US and France. Among such legislation used in the UK to strengthen the hands of its CT agencies, can be cited the Northern Ireland (Emergency Provisions) Act of 1973 and the Prevention of Terrorism (Temporary Provisions) Act of 1984 modified in 1989 by an Act with the same name.

To be effective, the CT has to operate at two levels:

At the level of individual members of terrorist organisations, by arresting and prosecuting them for participating in their activities.

At the organisational level, by dismantling the infrastructure of such organisations by stopping the flow of funds, disrupting their logistic and communication facilities, and arresting and prosecuting those who, without being members, assist them in the ir terrorist operations.

The normal laws of the land that came into force before state-sponsored terrorism became the greatest threat to the integrity of the country, will not enable the law-enforcers meet these twin objectives effectively.

The need for special legislation was felt in countries such as the UK, because the normal laws of the land did not provide for action against certain types of offences unique to terrorism, and did not have a deterrent effect on terrorist organisations an d their members.

Moreover, the normal laws, framed to deal with individual or small groups of criminals without an organisational and trans-national infrastructure to support them, cannot deal effectively with the organisational infrastructure of terrorist groups. The Pr evention of Terrorism (Temporary Provisions) Act of 1989 in the UK defined a number of new cognisable offences that were not there in the normal laws such as becoming a member of a terrorist organisation, canvassing support, arranging meetings and addres sing them, collecting funds or acquiring property for a terrorist organisation and contributing funds, providing property to it, and so on.

This Act also made it an offence for any person, having information that could prevent the commission of an act of terrorism or which could lead to the arrest and/or prosecution of a terrorist, to fail to report it to the Police (Section 18). Rajiv Gandh i, as Prime Minister, played an active and discreet role in persuading through appropriate back channel Mrs Margaret Thatcher, the then British Prime Minister, to modify the 1984 law to strengthen its CT provisions. The 1984 Act applied only to the terro rist groups of Northern Ireland and it goes to Rajiv Gandhis credit that he managed to persuade the British Government to modify the law and its stringent provisions applicable also to the UK-based groups fomenting terrorism outside tha country.

The provisions of the 1989 Act have since been further strengthened by the Tony Blair Government by the Terrorism Act, 2000. Section 18 of the 1989 Act on the legal duty of every citizen to report to the police, terrorism-related information coming to hi s/her notice has been further strengthened through Section 19 of the 2000 Act. Even journalists are liable to prosecution under this Section. The only exceptions are lawyers in respect of privileged communications with their terrorist clients.

After the September 11 attacks, the Blair Government initiated immediate measures to enact another special legislation called the Anti-Terrorism, Crime and Security Bill of November 13, 2001, that, when enacted, will, inter alia, enable communication ser vice providers retain data for reasons of national security, or where it may be vital for criminal investigation and allow extended detention for suspected international terrorists who threaten national security and for whom there is no immediate prospec t of trial.

The pre-September 11 laws in most democratic societies normally allowed the collection of communications intelligence (Comint) only on persons already identified as threats to national security on the basis of specific intelligence recorded in writing. I n some countries, the required authorisation was given by officials designated by law and in others, by the Attorney-General, or by a court.

A general principle followed was that such authorisation should be of specified duration, and against a specified individual, residing at a specified address and using a specified telephone or fax number or e-mail address. In recent years, criminal and a nti-national elements have started persuading third parties which may or may not be aware of their background, to let them use their postal and e-mail addresses, and telephone and fax numbers for communication purposes. The mushrooming of public telephon e booths and cyber cafes has also facilitated the use of evasion techniques by such elements. Every time such a practice came to notice, the agencies had to seek a fresh authorisation for intercepting the communications of the third parties, public telep hone booths and cyber cafes, which took time and consequently resulted in a break in the continuity of intelligence collection.

The Clinton Administration tried unsuccessfully to persuade the Congress to modify the law to facilitate the authorisation of the interception of the communications of a named suspect, whatever be the telephone and fax number, postal and e-mail address, public telephone booths and cyber cafes used by him/her.

Public and Congressional opinion and civil rights groups were unwilling to increase the clandestine interception powers of the agencies. The agencies also need a capability to detect and identify criminal and anti-national elements, that might have escap ed detection through Humint (human intelligence). This might call for random, but not indiscriminate, monitoring of communications that could result in the interception of messages having a bearing on ordinary crime, terrorism, narcotics smuggling, espio nage, and so on.

However, public opinion and law-makers in democratic societies opposed random checks fearing their misuse for partisan political purposes. Serious difficulties arise from new technologies facilitating rapid frequency modification, scrambling and automati c coding and decoding of telephone conversations, fax messages, e-mail, and so on. Attempts of governments in the US and other countries to enable the agencies prevent the misuse of these technologies by criminal and anti-national elements through a lega l provision that software companies producing encryption (coding and decoding) programmes should deposit details of the key for decoding with the intelligence agencies so that they could make random checks in case of suspicion, were met with opposition f rom different sections of society.

After the terrorist strikes of September 11, politicians and law-makers in the US have realised that their reluctance to grant to the CT agencies additional special powers needed by them to keep pace with the international networking of the terrorists an d their misuse of modern communication and other technologies for committing acts of terrorism might have contributed to the horrendous acts. This has resulted in a flood of Congressional resolutions and laws to empower the CT agencies in their fight aga inst terrorism. The various additional measures that have come into or are expected to come into force shortly, can be broadly divided into the following categories:

Special provisions to enhance the powers of the CT agencies to intercept communications and to prevent the misuse of modern communication technologies by terrorists.

Special provisions to strengthen the powers of the immigration authorities to prevent illegal immigration and to deal with illegal immigrants already in American territory.

Special procedures for dealing with foreign terrorists such as enhanced detention powers, trial by military courts, and so on.

The basic principle underlying these special provisions is democratic societies have special laws relating to war, that provide for enhanced powers for the counter-intelligence and other law-enforcing agencies during war.

In view of the resort of terrorists to acts of catastrophic terrorism and their international networking, their acts have also to be treated as amounting to an act of war against the state and people of the US, and similar powers to deal with them have t o be given to the agencies.

India has been a victim of the proxy war being waged by Pakistan against its security forces and people for decades. Sponsorship by Islamabad of Pakistani or other foreign terrorist groups to achieve its strategic objectives against India is a core compo nent of this proxy war. Already, 60,000 civilians, many of them Muslims, and over 3,000 members of the security forces have been killed in this proxy war since 1989 in Jammu and Kashmir alone.

Such special powers are the price a democratic society pays for protecting its integrity, the lives of its citizens and the roots of its democracy from terrorists who want to destroy them by misusing the privileges of democracy. It is very unfortunate th at some of the Opposition political parties have been strongly opposing, for narrow partisan political reasons, the attempts of the Government to enhance the powers of the CT and other law-enforcing agencies through the Prevention of Terrorism Ordinance (Poto).

Do we have to wait for an act of catastrophic terrorism in India similar to the September-11 terrorist strikes in the US, before we realise the need for special powers to the agencies? Fears of possible misuse of enhanced powers are legitimate, but the a nswer is not to deny them to the agencies, but to make their use subject to strict external controls.

(The author is former Additional Secretary, Cabinet Secretariat, Government of India.)

edit--article--blurbText: bl30--14--main-ramanWrite

It is very unfortunate that some Opposition political parties in India have been strongly opposing, for narrow partisan political reasons, the Governments attempts to enhance the powers of the counter-terrorism and other law-enforcing agencies in the for m of POTO. Do we have to wait for an act of catastrophic terrorism in India, before we realise the need for special powers to the agencies? Fears of possible misuse of enhanced powers are legitimate, but the answer is not to deny them to the agencies, bu t to make their use subject to strict external controls, says