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Terrorism: tilting at windmills

Ever since six bombs ripped through Jaipur earlier this month, India’s politicians have donned their armour, sharpened their swords, mounted their steeds — and charged out at windmills.

Both the government and the Bharatiya Janata Party have let it be known that sweeping legal and constitutional reforms are needed if terrorism is to be fought. In Prime Minister Manmohan Singh version of the argument, the solution is better implementa tion of existing legislation through a federal counter-terrorism organisation. BJP leaders concur, but also want new counter-terrorism laws to be enacted.

On both sides of the political fence, politicians have been holding out as models the successes of the United States of America and the United Kingdom in fighting terrorism. Both countries’ records, therefore, merit close examination.

Back in June 2005, United States President George Bush claimed that “federal terrorism investigations have resulted in charges against more than 400 suspects.” Advertising the success of Patriot Act, which the BJP wishes to emulate, and the post-2001 reforms of the police and intelligence systems which the government appears to admire, Mr. Bush asserted that “more than half of those charged have been convicted.”

Washington Post journalists Dan Eggen and Julie Tate, however, soon blew the lid on that claim, using a United States Justice Department list of terrorism prosecutions. Just 39 people had been convicted of charges related to terrorism or national security in the three years after the tragic event of September 11, 2005. Most of the other 200 convictions the Justice Department listed, Eggen and Tate found, were for relatively minor crimes like immigration law violations.

From September 11, 2001, to late September, 2004, the Justice Department conducted 361 terrorism investigations — a figure that did not include suspects held at the Guantanamo Bay military prison in Cuba, or secret jails across the world.

In 180 of these cases, Eggen and Tate discovered no connection to al-Qaeda or other terrorist groups could be found in official records. Only one in nine of those named in the Justice Department list were even alleged to have a link to al-Qaeda’s networks, while less than half of those convicted on terrorism-related charges had links to the terrorist group. Cases involving narcotics cartels, Rwanda war criminals and even political supporters of the Palestinian cause had been added to the list to pump up the numbers.

Large numbers of suspects seemed to have ended up on the list as a result of malice or pure bad luck. “For example,” Eggen and Tate wrote, “the prosecution of 20 men, most of them Iraqis, in a Pennsylvania truck-licensing scam accounts for about 10 per cent of individuals convicted — even though the entire group was publicly absolved of ties to terrorism in 2001.”

In several cases, the evidence proved murky — or worse. Illinois-based Enaam Arnaout was indicted in October, 2002, on charges of sending funds and equipment to al-Qaeda operatives in three continents. His charity, Benevolence International Foundation, was shut down. But less than a year later, prosecutors dropped six of seven charges against Arnaout. He pleaded guilty to a single count of illegally raising funds for Islamists in Bosnia and Chechnya. At a sentencing hearing in August, 2003, judge Suzanne B. Conlon made clear there was no evidence that Arnaout “identified with or supported” terrorism.

Some of the cases on the Justice Department list, Eggen and Tate found, had nothing to do with terrorism at all. High Point resident Abdul Farid was arrested after a fake tip-off that he was funnelling funds to the Taliban. In the event, he was deported after admitting he lied on a loan application. Pakistani national Moeen Butt, again initially charged with terrorism involvement, was eventually deported on marriage-fraud charges.

In a recent article, journalists Carrie Johnson and Walter Pincus noted that the Justice Department’s “domestic terrorism record to date — no new attacks, but few blockbuster convictions and some high-profile hung juries or acquittals — has provoked criticism of its early strategy for going after home-grown terrorist cells and the people who fund plots well before deadly events occur.”

Johnson and Pincus pointed to the Justice Department’s failure to secure convictions in a 2006 plot often held out “a model for intervention against potential terrorists before they acquire the weapons and insight needed to act”.

In October, 205, Miami resident Narseal Batiste told grocer in October 2005 that he wanted to conduct jihad to overthrow the U.S. government. To bring this about, Baptiste said, he hoped to blow up the Sears Towers in Chicago. The falling debris would bring down the walls of a nearby prison, freeing Muslims who would become the core of a new jihadist army. A Federal Bureau of Investigations informant then persuaded Batiste and his group to sign on to what he claimed was an al-Qaeda terrorism operation—the action that the government later held out as evidence of the group’s guilt. Jurors disagreed, evidently unconvinced that the defendants were a real danger to society.

Data from the United Kingdom shows that experience across the Atlantic hasn’t been very different. Home Office figures released in March, 2007, showed that under just 40 of just under 1,200 suspects held on terrorism-related charges since September 11, 2001, were eventually convicted. Over half the suspects held were released without ever being charged.

According to the data, the United Kingdom arrested 1,126 suspects under its Terrorism Act of 2000, and a further 40 individuals under other legislation. Of the total of 1,166 suspects, 652 were simply released without ever having to face trial.

Of the rest, 117 suspects were charged with terrorism-related crimes alone, while another 104 faced other criminal charges in addition. A third category of suspects, made up of 186 people, were charged only with criminal offences like murder, inflicting grievous bodily harm, and handling explosives. Another 74 suspects were handed over to immigration authorities, 12 received formal cautions, 10 were dealt with using mental health legislation, and 2 subjected to extradition proceedings.

Just 40 of the 1,126 people prosecuted under Terrorism Act had been convicted by early 2007. A further 180 people were convicted under other legislation. Ninety-eight people were being tried, or awaiting trial.

To anyone who followed the debate over India’s own Terrorist and Disruptive Activities (Prevention) Act (TADA), none of this would be surprising. Of an estimated 77,000 individuals arrested under TADA, over 72,000 were released without charge. Of those prosecuted, just 1.8 per cent were eventually convicted. TADA’s successor, the Prevention of Terrorism Act, did little better.

Of course, as analyst Ajai Sahni has pointed out, normal laws have done far worse than special ones in securing justice in terrorism cases. Poor conviction rates or abuses are not in themselves a sufficient argument for or against a particular legal regime: if so, India’s abysmal record would constitute a case for doing away with the legal system altogether. Serious debate is needed on reforming the criminal justice system to make it more efficient and responsive.

Even the best laws and trial practices, though, won’t help prevent or punish terrorism if police lack the teeth credible investigations need.

If either Prime Minister Singh or his BJP critics are in fact serious about making India safer, they might wish to focus their attention on enhancing the capacities of the institutions we have. Action in just three core areas would enhance India’s security dramatically.

First, rather than expend his energies on battling the resistance to the creation of a federal police, the Prime Minister could enhance India’s existing covert services.

Unlike almost any country of significance, India does not have a national criminal intelligence database that can process and disseminate information in real time — and this because bureaucratic wrangles have stalled plans for reforms cleared almost a decade ago. Its covert services are desperately understaffed, particularly lacking in specialists with language and technological skills.

Second, the Prime Minister could push states to give Indians the policing they deserve. Most terrorism investigations flounder because State police forces do not have access to the criminal-investigation resources needed for high-quality investigation, nor the legal assets required to guide its course. If the perpetrators of the Jaipur bombings are acquitted, it will be because the State police did not have a well-trained crime-scene evidence team, nor access to state-of-the-art forensics.

As at Mumbai in 2006, or the site of the Samjhauta Express fire-bombing in 2007, the evidence in Jaipur will more likely than not have been hopelessly contaminated.

Finally, India needs to set in place functional regulatory mechanisms for the sale of explosives like the ammonium-nitrate slurry used to fabricate the bombs used in the Jaipur, and ensure that mining detonators cannot be purchased by anyone other than legitimate users.

All of these are common-sense steps, long advocated by police and intelligence professionals. Sadly, India’s politicians still don’t seem to be listening.

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