A question of evidence

[arsa]

Ejaz Haider
Friday, January 16, 2009
(this extract is the 1st part of the artical "About the dossier"
The decision to send the DG ISI, in the absence of a framework for such cooperation, was a poor judgement call, especially when other mechanisms exist for such cooperation, including at the very high level, of national security advisors

India has sent Pakistan the dossier which New Delhi says contains detailed evidence of how the Mumbai attack plan was hatched and by whom. Pakistan has officially responded that while it will do whatever it can to unearth those who might be behind the attack, the Indian dossier does not constitute “credible proof”.

These are two different positions and if Pakistan and India have to move forward and normalise, these two positions would need to be reconciled. But that’s exactly where the rub lies. Consider.

As any trial lawyer would inform the government, this evidence cannot hold in a court of law. As it stands, it merely calls for further investigations that can lead to more clues and evidence which, at some point, could be presented in a court and made to stick.

That the evidence must not come unstuck in a court of law is crucial because that is the forum that will ultimately decide the fate of any alleged culprit(s). There is nothing on the table right now which calls for summary execution or sentencing of “terrorists” unless a trial against them can hold them guilty. This is called due process (See Ejaz Haider, “Prosecution’s nightmare”, Daily Times, December 13).

Pakistan’s assertion that the dossier does not constitute “credible evidence” has therefore to be seen and read in that light.

Of course, the question remains of whether the Indian dossier is enough to proceed further in this matter and whether Pakistan should do so. My answer on both counts is ‘yes’.

There is also evidence that organisations like SIG (special investigations group) are already on the job. In fact, as Dr Ijaz Hussain wrote in Daily Times (“Anatomy of the Indian case”; January 14), “If the Indian government is wrong in [making demands] without hard evidence, the Pakistan government too is wrong in hiding behind India’s failure to provide the necessary evidence”.

But this is also where the politics of India-Pakistan relations comes in. India’s oscillation between “no war” and “all options on the table” and its declaration of a “pause” in the dialogue framework have not helped matters. The dialogue framework provides the very mechanisms in and through which cooperation can be extended. As for the “war” option, it implies that New Delhi is holding the Pakistani state complicit in the actions of what it initially said was an attack by “non-state” actors; the war rhetoric has also forced Pakistan to toughen up its stance and signal to India that it is prepared for that eventuality should India choose to actualise that option.

This is not an environment conducive to the kind of cooperation required to resolve this issue.

The Indian case against the Pakistani state’s complicity, outside of what is contained in the dossier, is circumstantial at best and flimsy at worst.

For instance, it says that Ajmal Kasab’s statements and evidence from the fishing trawler, MV Kuber, and the two hotels in Mumbai show that Lashkar-e Tayba could not have mounted the operation on its own. Why? Because “the preparation was so elaborate, involved so many trainees, and such extended and sophisticated training, in multiple locations” that India cannot believe the ISI was in the dark while the LeT was allegedly planning this operation.

This is neither here nor there. The level of sophistication of these groups is now known to all intelligence agencies of the world. Mumbai was not more sophisticated than 9/11 or several other such attacks around the world. The groups that are fighting a combination of world armies in Afghanistan and the Pakistan Army in FATA are highly experienced, battle-hardened and motivated militants. Else, they would have been decimated and mopped up by now.

Secondly, we are told that R&AW, the Indian external intelligence agency, strongly suspects that some of the numbers dialled by the attackers belong to serving ISI officers. Reason: apparently these are numbers from where calls were intercepted by the CIA when Pakistan allegedly hatched the plot of bombing the Indian embassy in Kabul.

At the minimum, a smart intelligence agency would not have used the same numbers again after having been “caught” using them to make mischief once. One doesn’t even need to do the basic intelligence course to understand that; it’s called common sense.

Thirdly, the role of the Army/ISI in the attack became clear to India when the army decided to pressure the prime minister and the president to retract the decision to send the DG ISI to Delhi. Since this writer independently wrote against that decision (“What were you thinking, Mr Prime Minister?” Daily Times, November 29), by the logic of this argument, he should also be involved with the attackers.

Another Indian corollary of this development is that the civilian government in Pakistan is powerless and the army calls the shots. To the extent of this episode, this is no less ridiculous because it is a matter of record that, starting with the Gandhi-Bhutto meeting in 1989, India and Pakistan have been a millimetre away from a final decision on Siachen. Yet, despite a strong inclination by successive Indian governments to do so, the Indian Army has effectively sabotaged that final movement. Does that mean the army calls the shots in New Delhi?

Of course not. But all militaries, even those accepting civilian supremacy, have workarounds which are mostly quite effective. Decent civilian governments do understand the sensitivities of the military.

The decision to send the DG ISI, in the absence of a framework for such cooperation, was a poor judgement call, especially when other mechanisms exist for such cooperation, including at the very high level, of national security advisors. India’s request, therefore, had more to do with earning political and diplomatic points. Unfortunately, the cost for Pakistan of increasing India’s comfort level would have been very high.

Moreover, if the DG had indeed gone to Delhi, India could later cite that as indicative of Pakistan’s tacit, if not direct, acceptance of its guilt and responsibility as a state.

In a way the demand and India’s interpretation of its non-acceptance by Pakistan is in the same league as New Delhi’s demand for extradition of the alleged suspects of the Mumbai attack. To quote Dr Hussain again:

“As far as the demand for extradition of the terrorists’ handlers is concerned, both international and regional laws tend to favour Pakistan. For example, extradition in international law normally takes place on the basis of a treaty, reciprocity or courtesy, which are absent in the present situation.

“Besides, the question of whether or not the individual for whose extradition request has been made is an ‘extraditable person’ is also important because the individual to be extradited should be the national of the requesting state or of a third state but not that of the state to which the request is made. Since the terrorists’ handlers are supposedly Pakistanis, they are not ‘extraditable persons’.”

Fourthly, the Indian government and commentators have developed an elaborate theory about why the Army/ISI would be complicit in the Mumbai attack. The theory is that Pakistan Army wants to extricate from FATA and the NWFP and it decided to provoke India enough for the latter to mobilise to provide Pakistan with the justification to move troops from the west and induct them in the eastern sectors.

Elaborate this might be, it has no merit beyond (a) proving that the Pakistani state sponsored the Mumbai attack, and (b) signalling to the United States and other Western capitals that they should come down hard on Pakistan.

The problem is that one can pick up the same theory and argue that it is in the interest of the “non-state” actors who did Mumbai to create a situation in which India would react through mobilisation and Pakistan would respond by thinning troop presence in FATA, especially at a time when its campaign in the Bajaur and Mohmand agencies is going strong and notching up successes.

It is for this reason that international interlocutors have rejected New Delhi’s implied and not-so-implied assertions about the alleged complicity of the Pakistani state even as they continue to call for hard action from Islamabad.