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| INDIA |
NCTC: National Confusion on Terror by Centre
Ajai Sahni
Editor, SAIR; Executive Director, Institute for Conflict Management & SATP
The crisis in India today is one of capacities, and this cannot be addressed by the reinvention of institutional forms. It doesn’t matter if our responses are centralised or decentralised, as long as the executive agencies remain infirm, under-manned, under-trained and under-equipped.
...Our principal problems lie, not in architecture, but in manpower, materials and execution. We have eviscerated our institutions over decades, and now believe that the solution lies in creating layer upon layer of meta-institutions to ‘monitor’, ‘coordinate’ and ‘oversee’ this largely dysfunctional apparatus.
Counter-terrorism: The Architecture of Failure, November 24, 2011 |
The National Counter-terrorism Centre (NCTC) is an ill-conceived, redundant and derivative, vanity project, which aspires to imitate its namesake in the US, without the strength, the sinews, the resources or the constitutional context that would make such aspirations attainable. And if the idea itself was bad, its execution has been infinitely worse, tainted by deception and sleight of hand, as the Union Ministry of Home Affairs’ (UMHA) seeks to arrogate powers specifically excluded from its jurisdiction by the Constitution.
UMHA’s National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order, 2012, has, unsurprisingly, run into trouble, with no less than 14 State Chief Ministers opposing the Centre’s move to create the NCTC, effective March 1, 2012. The Chief Ministers have rightly objected to the absence of any consultative process, as well as to specific clauses of the Order, principally including the power of arrest and seizure conferred upon the proposed NCTC’s Operations Division, purportedly under Section 43A of the Unlawful Activities (Prevention) Act (UAPA), 1967.
In his letter of February 24, 2012, in response to the objections voiced by some of the Chief Ministers, Union Home Minister (UHM) P. Chidambaram has artfully argued that the powers conferred on the NCTC derive from the UAPA Amendments of December 2008, and that, when these were brought to Parliament, “There was no demur or opposition to either section 43A or the other amendments”. UMHA officials have argued, further, that when similar powers of arrest and seizure were given to the National Investigation Agency (NIA), through its empowering Act of December 30, 2008, there were no objections regarding any perceived infringement of the Constitutional distribution of powers between the Union and the States. In other words, the States were now presented with a fait accompli and were being told, facetiously, that, having failed to object to the Centre’s jurisdictional enlargement in the past, they had lost their right to do so in the present and the future.
This, however, is evidently not the position UHM Chidambaram projects to his closer confidants. Indeed, if evidence of bad faith on the part of the Centre was required, it is provided by the Wikileaks disclosures regarding Chidambaram’s alleged conversation with FBI Director Robert Mueller at a meeting in New Delhi on March 3, 2009. According to the record cabled by US Chargé d’Affaires Steven White, “[Mr. Chidambaram] conceded that he was coming ‘perilously close to crossing constitutional limits’ in empowering the NIA. He explained the concept of a ‘federal' crime does not exist in India, with law and order the responsibility of the State Governments.” Further, Chidambaram “opined that the NIA law would be challenged in court because it ascribes certain investigative powers to the NIA which may be seen to conflict with responsibility that is exclusively with the States.”
D. Raja of the Communist Party of India rightly notes that, “The NIA Act and UAPA Amendments were passed by Parliament in the weeks after the Mumbai attacks when there was an atmosphere of panic.” This, indeed, is the essence of the Centre’s subterfuge – in an atmosphere of near hysteria and complete suspension of critical faculties in the wake of a major terrorist attack, the States are brow-beaten into acquiescence, and then bound to their creeping abdication of power through subsequent and arbitrary orders by the Centre. Even now, most of the Chief Ministers adopt an extremely tentative tone in voicing their objections to the NCTC Order, prefacing these with an extended declaration of their shared concern on the urgency and necessity of fighting terrorism. Indeed, the Centre has sought to reduce the State’s objections to the lack of a consultative process, rather than any substantive clauses of the NCTC Order.
The powers of arrest and seizure, however, are not the only clause the States have reason to object to. Other clauses that would rightly attract Constitutional scrutiny include:
Para 3.3 of the Order states: “NCTC shall have the power to set up Inter-State Intelligence Support Teams (INSIST)”. Any mandatory State component or operation in State jurisdictions of such INSISTs would trample Constitutional boundaries.
Para 3.4 states: “NCTC shall have the power to requisition the services of the National Security Guard (NSG) or any other special forces.” The question of territorial jurisdiction where they are deployed remains open. It is also not clear whether “any other special forces” also include such Forces raised by the States, over which no Central Agency can exercise such direct command.
Para 3.5 confers “... the power to seek information, including documents, reports, transcripts, cyber information and information of every other kind in whatever form...” No Central Agency can have mandatory access to such information held by the States.
Para 5.1 imposes the duty on “all civil authorities in the territory of India” to “act in aid of the NCTC”, a power which would allow the NCTC to exercise direct (and extra-constitutional) command over State agencies.
Para 6.1 establishes a Standing Council, including the “Heads of the Anti-Terrorist Organisation or Force in each State”, bypassing the State Government and the State Police hierarchy, including the State’s Director General of Police, to create the possibility of a direct, extra-constitutional, chain of command between the NCTC and a State Police unit.
These powers cannot be arrogated by the Centre, nor can they be ceded by the States through any ‘consultative process’. If there is, in fact, any pressing necessity for the Centre to be given greater powers to deal with the imperatives of counter-terrorism (CT), these cannot be conferred through any informal process of consultation, through executive orders, or through amendments to any existing laws. The most marginal augmentation of the Centre’s jurisdiction beyond the existing Union and Concurrent lists can be secured only through a constitutional amendment, no less.
It is abundantly clear, by the very evasiveness of the Centre’s approach, that the Union Government lacks the confidence that it can, in fact, demonstrate the necessity of its proposals on the grounds of CT imperatives and in an open and calm debate on the distribution of powers between the Union and the States.
Indeed, and this has been repeatedly argued elsewhere, the “bold, thorough and radical restructuring of the security architecture at the national level” that UHM Chidambaram proposes is anything but necessary, and is, more likely, a wasteful symbolic process, intended to feed the illusion of power, and the pretence of an ‘effective response’, rather than to augment the substance of CT capacities and capabilities.
The idea of the NCTC as panacea, moreover, needs to be vigorously contested. Despite trillions of dollars that have been poured into its CT architecture, and a multiplicity of wars launched abroad to protect the ‘homeland’, the reality is that US CT success is anything but complete. There are often loose assertions that the US has successfully protected the ‘homeland’ from terrorist attacks since 9/11, but this is contra-factual. In at least three cases, disaster has been averted, not by any preventive initiatives on the part of US intelligence and enforcement agencies, but by the sheer and spectacular incompetence of terrorists: the December 2001 case of the “shoe bomber”, Richard Reid; the December 2009 “underwear bomber”, Umar Farouk Abdulmutallab; and the May 2010 “Times Square bombing”, by Faisal Shahzad. Nor, indeed, has the US homeland been entirely free of terrorist successes since 2001. On July 28, 2006, for instance, Naveed Afzal Haq opened indiscriminate fire at the Jewish Federation of Greater Seattle, killing one and wounding five. On February 12, 2007, Sulejman Talovic killed five and wounded another five, at the Trolley Square Mall in Salt Lake City, Utah. And on November 5, 2009, Nidal Malik Hasan, a US Army major serving as a psychiatrist, killed 14 and injured 29, at the military establishment at Fort Hood, Texas. The US homeland is, further, infinitely better protected by geography, history and demography. America has, moreover, compromised almost every Constitutional principal to secure itself over the past decade.
More significantly, the US has been quite unsuccessful in other theatres of CT intervention – the AfPak region is a dramatic case in point. This theatre – plagued by continuous Pakistani mischief – offers a better point of assessment of US CT capabilities. US technical capabilities have certainly created some dramatic ‘successes’ – the neutralization of Osama bin Laden at his Abbottabad safe haven the most prominent among these. The reality, however, is that, where only a handful of Afghan Districts along the AfPak border were afflicted by the Pakistan-backed Taliban insurgency in the aftermath of Operation Enduring Freedom, today, Taliban factions have established their disruptive dominance in 31 of the country’s 34 Districts. American aid and interventions in Pakistan have also failed to establish any measure of stability and, indeed, the country’s “descent into chaos” has only accelerated over the years.
The intention, here, is not to suggest that everything the US has done is wrong. Rather, that the image of uncontaminated success that is projected, as a contrast to India’s unmitigated failure, is far from accurate.
Crucially, India’s past CT failures arise out of an acute deficit of capacities for intelligence gathering, analysis and response, and not out of any extraordinary defects of institutional ‘architecture’. Home Minister Chidambaram explicitly noted, in his Intelligence Bureau Centenary Endowment Lecture on December 23, 2009,
| ...police stations in the country are, today, virtually unconnected islands... There is no record of crimes or criminals that can be accessed by a Station House Officer, except manual records relating to that police station... we must have more police stations and, at the police station level, we must have more constables, some of whom are exclusive for gathering intelligence... the police must also be the first responder in case of a militant or terrorist attack... QRT and commando units should have modern weapons and equipment... |
Of course, with little evidence or argument, he goes on to assert that doing all this “is just extracting a little more from the ‘business as usual’ model”. The real priority, he urges, is “a bold, thorough and radical restructuring of the security architecture at the national level”.
The truth is, most of the functions that the NCTC, in its latest avatar, is intended to perform, were already allocated to the Multi-Agency Centre (MAC) in the Intelligence Bureau (IB), which was approved more than three years ago, through the UMHA’s Memorandum of December 31, 2008. The core of these functions is the creation of a national database and network for intelligence on crime and terrorism. Three years later, MAC has still not been able to construct even a skeleton of this core. Acute deficits of capacity in the IB, the lack of specialists who can create the database, less than complete enthusiasm in other agencies, who were also required to depute their officers to MAC, and the failure of the States to create the necessary linkages to all Police Stations and intelligence sources, lie at the heart of this failure. It is not clear how, by giving this a new name and adding a few more powers and functions, a failed MAC is to be converted into a successful and highly efficient NCTC. Putting the same broken system into a new box is not going to make it work. Crucially, moreover, unless capacities to generate intelligence on the ground, and to network the most dispersed nodes of intelligence gathering and response, are not dramatically improved, all meta-institutional innovations will fail.
Simply put, if the US NCTC were to be called MAC, it would remain as effective (or otherwise) as it currently is. If the Indian MAC is rechristened NCTC, it will remain as dysfunctional.
An internal organisational restructuring of the IB, to improve the separation of functions – intelligence gathering, analysis and operations (each of these already exist within the IB’s ‘mandate’) – and an acceleration of the MAC project to secure its objectives within an improved time frame, would achieve infinitely more than the ‘in your face’ theatrics of ‘architectural restructuring’ and the NCTC. IB’s past operations have not been crippled by the lack of the powers that UMHA seeks to confer on the NCTC; nor will these powers result in any dramatic transformation of its performance. There has, for some time now, been a constant refrain in certain quarters that India’s CT strategy suffers because of a deficit of necessary powers and that consequently, an agency like the NCTC had to be provided broader powers to fulfil its operational mandate. This is nonsense. What CT agencies – in the States and at the Centre – need most is capacities and capabilities, not brute legislative sanction, or layer upon layer of new supervisory institutions in the realization of a capricious and imitative ‘new architecture’.
It is, of course, the case that much of what needs to be done lies within the purview of the States, and, with rare exception, the States have remained neglectful of their responsibilities, even as they have, repeatedly, petitioned the Centre to ‘do more’ in the wake of each significant crisis. This, however, cannot be the basis of an informal re-negotiation of the distribution of powers between the Union and the States. Any usurpation of extra-constitutional authority will, eventually, be kicked back into the natural confines of the Constitution. Further, it is, in fact, the case that greater centralization of response capabilities, command and control will detract from, rather than contribute to, a greater efficiency of CT responses. The only element that requires centralization, here, is the national intelligence database (and not intelligence gathering capabilities), with real time access to the most dispersed of decentralized response units.
The Centre’s present misadventure flows from an astonishing immaturity of approach; from rank opportunism, not statesmanship. Enduring institutions cannot be created through sleight of hand and subterfuge, or by exploiting lawyers’ loopholes in the law. |
Weekly Fatalities: Major Conflicts in South Asia
February 20-26, 2012
| Civilians | Security Force Personnel | Terrorists/Insurgents | Total |
| BANGLADESH | |
| Left-Wing Extremism | 0 | 0 | 1 | 1 |
| INDIA | |
| Assam | 0 | 0 | 2 | 2 |
| Jammu and Kashmir | 0 | 0 | 3 | 3 |
| Manipur | 1 | 0 | 1 | 2 |
| Meghalaya | 1 | 0 | 0 | 1 |
| Nagaland | 0 | 0 | 1 | 1 |
| Left-wing Extremism | |
| Andhra Pradesh | 0 | 0 | 1 | 1 |
| Bihar | 0 | 0 | 1 | 1 |
| Chhattisgarh | 1 | 2 | 0 | 3 |
| Jharkhand | 3 | 0 | 0 | 3 |
| Odisha | 2 | 0 | 0 | 2 |
| Total (INDIA) | 8 | 2 | 9 | 19 |
| PAKISTAN | |
| Balochistan | 9 | 0 | 0 | 9 |
| FATA | 8 | 9 | 44 | 61 |
| Khyber Pakhtunkhwa | 16 | 4 | 5 | 25 |
| Sindh | 11 | 0 | 0 | 11 |
| Total (PAKISTAN) | 44 | 13 | 49 | 106 |
| Provisional data compiled from English language media sources. |
BANGLADESH
JeI threatens Government over Ghulam Azam's War Crime trial: On February 21, Jama'at-e-Islami (JeI) leaders threatened that no one in the country will remain safe should some harm befall their ex-party leader Ghulam Azam now held in jail on War Crime trial. "…No one on the soil of Bengal will be safe if any harm happens to him," Selim Uddin, an assistant secretary of JeI (Dhaka) city unit said in what appears to be an open threat to the Government. Daily Star, February 22, 2012.
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INDIA
Jammu court charges JKLF chief Yasin Malik under POTA: A local court in Jammu on February 24 charged Jammu and Kashmir Liberation Front (JKLF) chief Yasin Malik under the Prevention of Terrorism Act (POTA) for allegedly raising funds to strengthen militancy in the State. Sessions judge (Jammu) Sanjay Parihar charged Malik with raising funds to strengthen "armed activity" in the State and "to strike terror among people". Malik pleaded not guilty to the charges. Times of India, February 25, 2012.
IM using SIMI network: Interrogation of arrested Indian Mujahideen (IM) militant Mohammed Qafeel Ahmed on February 23 has confirmed that the vast network of banned outfit Students Islamic Movement of India (SIMI) is now being used by IM. Qafeel disclosed that IM has no dearth of funds as the terror outfit continues to get substantial amounts of money through the hawala route from Pakistan. Asian Age, February 24, 2012.
Government has taken strong steps to intensify anti-Naxal operations, says Odisha Governor: In his address on February 21 to the Assembly, Governor Murlidhar Chandrakant Bhandare said the Government had taken strong steps to intensify anti-Naxal operations, with addition of 1,066 posts in the Special Operations Group (SOG). In another initiative, 70 Police Stations with an investment of INR 1.4 billion, INR 200 million per Police Station, are under construction in the Naxal-affected areas. The Governor said 1,384 constables, 3,127 Policemen and 99 group-D personnel were recruited to strengthen the Police force. IBN Live, February 23, 2012.
Union Government evolving uniform surrender policy for Naxal-hit States: In a bid to motivate Communist Party of India-Maoist (CPI-Maoist) cadres to join the mainstream, the Union Government is likely to come up with a new uniform surrender policy for all Left Wing Extremism-affected States. It will be offering INR 500,000 to anyone laying down a Light Machine Gun (LMG) and INR 300,000 to those depositing an AK-47 assault rifle. The Hindu, February 23, 2012.
Hindu terror group Azad Sangthan admits role in Haryana blasts:Five people arrested by Patiala Police in connection with a series of blasts in Haryana associated with a Jind-based Hindu terror group, Azad Sangthan confessed their role in the blasts occurred between October 2009 and August 2010 at Jind, Safidon and Nuh. Azad Sangathan, a network of gaushalas or cow shelters for cow protection played an important role in indoctrinating and inspiring the alleged bombers. Times of India, February 22, 2012.
ANVC reiterates GAC demand in Meghalaya: Achik National Volunteers Council (ANVC) threatened to revive its old demand for greater Garoland, a separate State for Garos including the Garo-inhabited areas of Assam and West Khasi Hills, if the Government failed to respond to its demand for the Garoland Autonomous Council (GAC) within a week. ANVC spokesperson Torik Marak blamed the State Government for delaying the formation of the GAC though the Union Government was keen on forming the body. Telegraph, February 21, 2012.
NEPAL
Major three political parties decide to evacuate PLA cantonments within three weeks: Top leaders of the major three political parties - Nepali Congress (NC), Unified Communist Party of Nepal-Maoist (UCPN-M) and Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) - on February 26 decided to empty all seven cantonments and satellite camps where Peoples Liberation Army (PLA) combatants awaiting integration into the Nepal Army are being kept. The leaders decided to evacuate all the cantonments within the next three weeks after agreeing on the proposal put forth by Maoist chairman Pushpa Kamal Dahal aka Prachanda for the same. Nepal News, February 26, 2012.
Government and JTMMP sign six point agreement: Government and Terai-based armed outfit Janatantrik Terai Mukti Morcha Party (JTMMP) signed six point agreement during the first round talks held in Lumbini on February 25. The underground armed outfit had announced 'cease fire' on January 30 after the Government invited it for the talks. Nepal News, February 26, 2012.
PAKISTAN
44 militants and nine SFs among 61 persons killed during the week in FATA: 10 militants and two security personnel were killed in a clash between Security Forces (SFs) and militants in the Siplatoi area of South Waziristan Agency in Federally Administered Tribal Areas (FATA) during a search operation on February 26.
Six Lashkar-e-Islam (LI) militants were killed when helicopter gunships targeted their hideouts in Nanagrosa and Nari Baba areas in Landikotal town of Khyber Agency.
Seven militants and three soldiers were killed when militants attacked troops deployed in Malikdeenkhel area of Khyber Agency on February 24.
At least 17 Tehreek-e-Taliban Pakistan (TTP) militants were killed in an air strike in Khadizai, Samarbazar and Bermela areas of Upper Orakzai Agency on February 23. Dawn; Daily Times; The News; Tribune, February 20-26, 2012.
A total of 231 bullet-riddled bodies found in Balochistan in 2011, says CRSS report: A total of 231 bullet-riddled bodies were found by roadsides in Balochistan in 2011, said a report, titled Balochistan's Maze of Violence, compiled by the Centre for Research and Security Studies (CRSS), launched in Islamabad on February 19.
Baloch nationalist leader Senator Mir Hasil Khan Bizenjo on February 20 said that Balochistan was being run by Inter Services Intelligence (ISI) for all practical purposes for the last 15 years with no civilian control over governance in the volatile province. In addition, while condemning Islamabad for accusing India for creating unrest in Balochistan, Jamhoori Watan Party (JWP) Provincial President Shahzain Bugti on February 23 said it was Pakistan's intelligence agencies that were responsible for killings and abductions in the province.
Meanwhile, Interior Minister Rehman Malik on February 23 announced withdrawal of cases against the Baloch leaders currently residing abroad. However, the Baloch nationalist leaders on February 24 rejected Rehman Malik's announcement about withdrawal of cases against Brahamdagh Bugti and Harbayar Marri and said the Balochistan issue cannot be resolved without recovery of missing persons and bringing to justice the elements involved in dumping bullet-riddled bodies. Later, on February 26 all the cases filed against Baloch leaders were quashed. Cases lodged against Brahamdagh Bugti, Harbyar Marri, and Akhtar Mengal stand null & void. Dawn; Daily Times; The News; Tribune, February 21-26, 2012.
TTP embarks on high-profile abductions to raise millions of dollars, reveals report: Tehreek-e-Taliban Pakistan (TTP) and its aligned terror outfits have embarked upon a campaign of high-profile abductions which has armed the militant with millions of dollars in ransom being used to galvanise a sophisticated network of jihadi gangs whose reach spans the country, a report of Pakistan's security officials claimed on February 20. Wealthy industrialists, academics, Western aid workers and kin of military officers have been targets in a spree that began three years ago, a report quoting Pakistani security officials saying it has now spread to every major Pakistani city, reaching the wealthiest neighbourhood. Indian Express, February 21, 2012.
Safe havens in Islamabad could jeopardise US strategy in Afghanistan, says The Washington Post Report: Suspected militant havens in Pakistan could jeopardise the United States (US) strategy in Afghanistan, secret cables exchanged between the US Ambassador in Kabul and his superiors in Washington revealed, The Washington Post reported on February 24. According to the report, Ryan C. Crocker, the head of the US diplomatic mission in Afghanistan had sent a secret cable warning that the safe havens that insurgent fighters allegedly enjoyed in Pakistan, were failing years of US efforts to place curbs on the likes of the Haqqani Network, and ultimately plans to hand over security responsibilities to an Afghan force. Tribune, February 25, 2012.
Islamabad vows to support, not lead the peace efforts in Kabul, says Foreign Minister Hina Rabbani Khar: Pakistan will give its full support to any clear effort by the Afghan Government to achieve a political settlement with the Taliban but does not want to lead a peace process that would impose a solution, Foreign Minister Hina Rabbani Khar said on February 22. "We will support any (peace efforts) that are Afghan-led, Afghan-owned and Afghan-driven. This is our first and last pre-requisite," Khar said. Dawn, February 23, 2012.
Afghan officials in talks with TTP, reveals Kandahar Peace Council head Ata Mohammad Ahmadi:Afghan officials are holding talks with the Tehreek-e-Taliban Pakistan (TTP), the head of Kandahar Peace Council, Ata Mohammad Ahmadi, said on February 21. Ahmadi said the officials had been meeting for "some time" with mid-level TTP commanders in Quetta, where the leadership of the militant group is reported to be based. "In the last 10 days, our peace council delegation has gone to Quetta three times in twos and threes," he added. Dawn, February 22, 2012.
The South Asia Intelligence Review (SAIR) is a weekly service that brings you regular data, assessments and news briefs on terrorism, insurgencies and sub-conventional warfare, on counter-terrorism responses and policies, as well as on related economic, political, and social issues, in the South Asian region.
SAIR is a project of the Institute for Conflict Management and the South Asia Terrorism Portal. |
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