On trying Kasab

The best prosecution and the best defence

Mohammad Ajmal Amir Iman is a terrorist who was caught red-handed by the police. He is very likely a trained covert operative and is likely to exploit the Indian media and through it, the legal process, to his advantage. In time, a coterie of jihadi apologists might rise to obfuscate his crime. Politicians might use his case as a political football.

Yet, none of these is good enough a reason to deny him proper legal representation and a fair trial. Quite the contrary—this case deserves an exemplary prosecution and an exemplary defence. And should he be found guilty after an exemplary judicial process, he deserves exemplary punishment. (See Salil Tripathi’s piece).

America’s greatest mistake after 9/11 was Guantanamo Bay. India should not make the same mistake.

Update: Ram Jethmalani says lawyers cannot refuse to take the case, and, “a person who thinks that by doing these actions, he is going to heaven he should be denied the chance to go to heaven, he should remain the rest of life in a jail in India.”

After terrorists, their apologists strike (2)

Fact-finding civil society teams and their predictable findings

One would have thought that the death of the leader of the police team involved in the shootout with terrorists in New Delhi’s Jamia Nagar would silence the predictable apologists for who every “encounter” is a false one.

It turns out that Inspector Mohan Chand Sharma’s death was not sufficient. No sooner had the shootout ended than civil society teams had already launched ‘fact finding’ teams that pronounced the predictable verdict. The encounter had been staged and innocent Muslims had been targeted. Why, a Coordination Committee for Indian Muslims was formed (an unfortunate nomenclature, for the separatists in Jammu & Kashmir have their own Coordination Committee), and one of its leaders boldly announced that “it is pretty clear that Sharma was killed by his own men at very close range from behind. It was the mistake of the police to rush 2500 policemen into the narrow lanes of Batla House.” So here we have a bunch of sundry political activists and university lecturers acquiring the competence and authority to offer definitive opinions on how police conduct their operations. [See Retributions]

What is worse, such presumptuousness goes unchallenged.

The abjectly communal reaction of these worthies—from self-appointed fact-finding teams to office bearers of the Jamia Millia University—not only damages the prospects of a united, national battle against the radical Muslims who are resorting to terrorism. It also damages the interests of the Muslim community itself. Ajai Sahni is right when he says that “there are grave dangers for the country’s future in this.”

The argument has been put forward that ‘innocent Muslims’ are being targeted in the spate of recent arrests – but no evidence has, at any point, been cited, to support the thesis, other than an undercurrent of sustained denigration of the Police. Crucially, the responses of enforcement agencies are increasingly being held hostage to an irrational media backlash that follows both the failure to act and effective action.

There has been a constant clamour about investigative failures to solve the major terrorist attacks over the past over two years. But when a case is actually solved, there is immediate and unverified uproar over the ‘targeting of innocent Muslims’, and altogether bizarre conspiracy theories abound. Worse, it is more than evident that enforcement agencies in India have simply failed to acquire the skills and acumen necessary to deal with the intrusive, increasingly frenzied, and overwhelmingly ignorant media, and this has only further fed a rising panic in public perceptions.

The institutional paralysis is deepened manifold by opportunistic and unprincipled political responses – variously based on tactics that seek mobilisation through appeasement or escalation of tensions between communities – as well as through strategic advocacy by a number of sympathetic communal formations. [Outlook]

That civil society groups should involve themselves in fact-finding is a good thing. It is a good thing regardless of the fact that it is selective—for few civil society groups found it necessary to conduct fact-finding missions to investigate bomb blasts and terrorist attacks. But before their conclusions are amplified by the hyperventilating media it is necessary to subject them to intense scrutiny. In an environment where conspiracy theories and narratives of victimisation create more terrorists—a fact that even the Coordination Committee member concedes—an credulous, undiscriminating airing of ‘facts and findings’ is more dangerous than merely irresponsible.

Related Post: An earlier edition

Expensive mistakes on national security

Yes, it was the UPA’s political persuasions that got in the way of fighting terrorists

On June 8th, 2004, the UPA government presented its programme in parliament, in the president’s speech:

My government is concerned about the misuse of POTA in the recent past. While there can be no compromise on the fight against terrorism, the Government is of the view that existing laws could adequately handle the menace of terrorism. The Government, therefore, proposes to repeal POTA. [IBEF, emphasis added]

In his address to the Governor’s Conference, on September 17th, 2008, four years and umpteen acts of terrorism later, Prime Minister Manmohan Singh declared:

The public debate on the issue of terrorism has, unfortunately, tended to get driven by politics, and has centered on certain laws enacted or repealed by Governments of different political persuasions. Our Government has no fixed, inflexible or ideological view in this regardWe are actively considering legislation to further strengthen the substantive anti-terrorism law in line with the global consensus on the fight against terrorism. [PMO, emphasis added]

Dr Singh’s sanctimoniousness, as usual, is gratuitous. If the issue with POTA was “basically (related) to the procedural aspects of investigation and prosecution of terrorism related offences”, and the need was to “address the apprehensions”, then surely repealing the entire act (instead of amending it) is not merely about the UPA government being wrong its view about the efficacy of “existing laws”. It is about a deliberate decision to subordinate internal security to political persuasions.

As for attributing the need to change to a global consensus, Dr Singh is on an even weaker wicket. That global consensus—to the extent that the term is even meaningful—was much stronger in 2004 than it is now. Even so, that Dr Singh should say—even for the purposes of saving face—that the ‘global consensus’ should determine India’s internal security policies reveals just how lost he and his government are on this subject. (Mercifully, he did not think that the global consensus on nuclear non-proliferation ought to determine India’s nuclear weapons policy)

Peering into the criminal mind

A revolution in investigative affairs?

The use of brain mapping in investigation, and most recently the acceptance of brain mapping reports as evidence by Indian courts has raised many eyebrows. Today’s New York Times has a report by Anand Giridharadas on this:

The Brain Electrical Oscillations Signature test, or BEOS, was developed by Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at American universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.

Despite the technology’s promise—some believe it could transform investigations as much as DNA evidence has—many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal. Publication of data from testing of the scans would allow other scientists to judge its merits—and the validity of the studies—during peer reviews.

“Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible,” said Dr. Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection. “The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.” [NYT]

The use of this technology for investigation should be of relatively lesser concern, especially when the alternatives are of the unpleasant sort. But Dr Rosenfeld does have a point, especially when it comes to admissibility of these reports for securing convictions.

It is difficult to understand why Mr Giridharadas’s report does not quote any Indian scientist on the subject. It leaves out an important point: on September 6th, The Hindu reported that “an expert committee studying the efficacy of brain mapping criminal suspects has concluded that it is unscientific and should be discontinued as an investigative tool and as evidence in courts.” Rakesh Maria, Mumbai police crime branch chief, has been quoted as saying ‘that while BEOS was a useful technique of examination, it couldn’t achieve conviction all by itself. “The technique needs to be corroborated with other evidence.”‘

Graceful exit wounds

The manner of Musharraf’s exit

Most people think Pervez Musharraf is toast. And that, apart from a matter of time, it is a question of how he should go. The American senators who were in Pakistan for last week’s elections have publicly called for a ‘graceful exit’. Well, he’s reportedly building a new home—complete with security bunkers—in Islamabad. “He has already started discussing the exit strategy for himself,” a close friend told the Sunday Telegraph “I think it is now just a matter of days and not months because he would like to make a graceful exit on a high.”

Now the wonderful retired Major General Rashid Qureishi has denied the authenticity of the report, not its content. So it may well be that we will soon see some grace.

It won’t be impossible for Mr Musharraf to hold on to the presidency—but he will have to share power with the politicians and Gen Ashfaq Pervez Kiyani. If he was the sort who could share power he wouldn’t have been in this hole in the first place.

Impeachment—and there’s a lot of political support for this—is not impossible. But as Ali Khan of Washburn University School of Law argues on Jurist, impeachment is for legally elected presidents, not usurpers. “The proper constitutional treatment for usurpers”, Mr Khan writes, is “removal by incarceration”. Since lawyers are a vocal political lobby at the moment, they might insist on meting out the proper constitutional treatment to Mr Musharraf. Such an exit is unlikely to be graceful though.