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Anti-terror policy

Legal eye
Part II
The principles that must underlie an anti-terror policy are simple: proactiv

By Babar Sattar
July 14, 2013
Legal eye
Part II
The principles that must underlie an anti-terror policy are simple: proactive eradication of the jihadi project by the state; permanently abandoning the use of non-state actors in pursuit of national security goals; ending the distinction between good and bad Taliban; zero-tolerance for non-state actors, whether attacking the state or just citizens; recouping sanctuaries and no-go areas, whether in Karachi or Fata, and establishing the writ of the state across all territory comprising Pakistan; interdicting literature that incites hate and violence in the name of religion; and prosecuting those who use hate speech to manipulate religious sentiment.
Our anti-terror policy must start with the demand side. The state doesn't just need to abandon the jihadi project but extinguish it altogether. This means two things. One, the state decides categorically not to employ non-state actors to pursue national security interests – not now, not ever; not in Afghanistan; not in India; not to pursue strategic depth; and not to create room for plausible deniability. This may not require a change in our defence policy but a permanent change in strategy: notwithstanding the nature of military or intelligence manoeuvres, only trained professionals employed by the state must execute them.
Two, the state must resolve to implement Article 256 of the constitution in letter and spirit – the article prohibits private armies – and eradicate armed non-state actors from Pakistani territory. In doing so the state must draw no distinction between non-state actors that are attacking the state and those that are not. Further, in fighting non-state actors of the bad sort, the state must not raise or rely on pro-government 'lashkars' ie non-state actors of the good sort. Monopoly over use of force and zero tolerance for any organisation that has the ability to challenge state authority (even if not the will) must be ironclad principles.
On the supply side, the first urgent step must be to reclaim territory over which terrorists now exercise exclusive writ and use it to plan and execute attacks across Pakistan. There can be no compromise over assuming control of North Waziristan. Neither our constitution nor the notion of state sovereignty allows for the existence of sanctuaries or no-go areas. Reclaiming North Waziristan will, however, not be easy. We will suffer loss of troops. An operation in North Waziristan will also cause blowback and we will suffer attacks and loss of civilian lives in cities. But territory once lost can hardly be recovered through negotiations.
The terror syndicate might be headquartered in North Waziristan, but its network is spread across Pakistan and especially entrenched in urban centres. If the state elects to reclaim North Waziristan but not simultaneously counter the LeTs, LeJs and other militants that function as Taliban affiliates and franchisees in mainland Pakistan, over time the centre of gravity might just move from the fringes of the state to its centre. Again no distinction must be drawn between terrorists in Fata who slaughter soldiers and their Punjabi or Sunni cousins who are armed to the teeth and attacking Shia and Hazara citizens but not the state as yet.
Decommissioning the terror infrastructure will require additional steps. We will have to quietly communicate to those countries that are friendly with us that we have decided to quit hosting proxy wars and request them to stop funding madressahs and religious charities in Pakistan. We will also need to clamp down on hawala and hundi businesses. Whether money comes from our foes or friends abroad, Pakistan must exercise better control over its flow in and out of the country. Unless funding is choked, putting well-armed and fed merchants of terror out of business by use of force alone will be challenging.
The terror factories will not stop production till such time that their feeder institutions are reined back. We will have to institute madressah reforms. Any literature inciting violence in the name of religion must be banned and teachers and preachers who spew hatred and issue fatwas declaring others worthy of death must be prosecuted and punished. The violent extremism confronting us is alive because of the growing bigotry within society.
Our anti-terror policy will need to wed together the anti-insurgency paradigm with the criminal justice paradigm in the immediate term, while recognising that as we are fighting citizens (along with a few thousand foreigners) our medium-term solution rests on resurrecting our criminal justice system. Thus we will need to buttress the capacity of the police and civilian law-enforcement agencies to enable them to shoulder and discharge primary responsibility for internal security.
We will need to use the anti-insurgency paradigm in the first phase of the anti-terror campaign. Reclaiming sanctuaries would fall beyond the ability of the police. Those occupying North Waziristan are largely Pakistani citizens and not enemy aliens. The militants who are injured or arrested during an armed operation will not be regarded as POWs by the law but as terrorists or criminals who, to be punished, will need to be prosecuted. Let's avoid mistakes made in Swat. Let's form joint operations and investigation teams comprising the military and the police who can conduct armed operations within the four corners of our penal system.
For the rest of the anti-terror campaign we need to focus on the criminal justice paradigm. Terrorists also use ordinary criminal networks to perpetrate violence: the stolen cars, phones and identities, the weapons, the kidnappings, the escape routes etc. These loopholes will need to be plugged by breathing life into our criminal justice system. Trained to think in terms of war and peace, the armed forces are neither skilled nor authorised to discharge internal security duties on a sustainable basis.
This brings us to capacity building and legislative changes. We need a high-powered taskforce to identify and address the capacity constraints of the police in terms of budget, personnel, equipment and training (especially in crime prevention, investigation and forensics etc), and consider if a joint paramilitary force (comprising civil and military officers and intelligence personnel) can be created in the immediate term to conduct key anti-terror operations in urban areas. Budget 2013, for example, earmarks no significant funds that would reflect plans of provinces to rejuvenate the police force.
We need a criminal justice reform taskforce to plug holes that allow terrorists to go scot-free when prosecuted. It should liaise with the judiciary through the the law commission and seek input on what legislative changes can be introduced to address our dismal conviction rate. We certainly need judge, prosecutor and witness protection programmes and introduce anonymity in terror trials to ensure that fear of terrorists doesn't obstruct justice. The task force must also focus on the training of prosecutors as well as on prison security and reform.
Given the magnitude of our terror problem, we need a strong intelligence setup – but one whose authority is rooted in the law. We cannot allow intelligence operatives to function as investigators, to arrest or abduct citizens or make them go missing. We need to introduce laws that define the authority and mandate of the ISI and the IB, how they will coordinate with other intelligence outfits and law-enforcement agencies on the one hand, and how exercise of authority will be subjected to internal agency checks as well as external parliamentary/executive checks, on the other.
We must also mainstream Fata and delete Article 247 of the constitution that makes tribals lesser citizens. We must no longer legitimise fables about the special nature of tribal people who need a special regime of governance not suited to ordinary Pakistanis. If Fata is a part of Pakistan, then principles of the constitution and the fundamental rights and responsibilities flowing from it must be equally applicable there. Simultaneously, an appropriately tailored local government system can be introduced to retain local traditions and benefit from the traditional structures of tribal authority.
An effective anti-terror regime needs to be conceived and implemented through a high-powered National Security Council that reflects the principle of civilian control of the military. If we are serious about fixing our civil-military imbalance and about civilians assuming control of security and foreign policy, we must assign our best and brightest to ministries and parliamentary committees overseeing these functions.
Identifying the negligence and incompetence of the military establishment alone doesn't help. To instil reform we will need civilians to produce superior ideas.
Concluded
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu