The detention camp for the terror suspects in US custody had become a source of embarrassment on three counts, alike to the US administration and civil society. There was agitation about the duration for which the prisoners had been held without access to courts of law; the living conditions in the camp and 'harsh interrogation techniques' adopted by the CIA; and the trial procedures adopted by the US military commission.
The US intends to hand over the suspects to the countries of their origin whenever possible, or to those who would be willing to take them over. The US may try some of the detainees under its law.
The details are to be worked out over the next six months. Many in India may regard the above executive order as a good example with universal applicability. To start with, there are no close parallels in India with Gitmo, although Hari Kunzru, in the context of human rights, did compare Kashmir to Gitmo.
The decision to close Gitmo may be held up as an ideal of how individual rights must prevail over security of the state. We in India have to guard against being moved off our feet by the Gitmo wave.
Although Obama's order has given satisfaction to many in the US, some professionals harbour grave reservations about the impact that this decision is likely to have on the ongoing global war on terror. They fear that many of the released foreign suspects may resurrect into active terrorists as in the case of Ali al-Shihri who, having been released from Gitmo, is back in Yemen as the second in command of the group.
The sense of outrage and disbelief in the wake of 9/11 was so overpowering in the US, that it immediately declared war on terror, and commenced, as early as October 7, 2001, bombardment of hideouts and strongholds of the suspected terrorists in Afghanistan. The US followed it up with swift ground action in concert with the Northern Alliance, took prisoners in droves, and sent them for interrogation.
The intention was to trace and locate all terrorists, and to squelch their plans on the assembly line, using intelligence culled from interrogation. Though laborious, this process is based on sound logic. It can be expected to culminate into elimination of terrorism at some distant date. The matter, however, did not stop there. Alongside, and as an integral part of war on terror, the US had vowed to bring to 'justice' the perpetrators of 9/11.
The first part of the resolve properly belongs to the domain of war. It is the second part of the resolve -- meting out of justice to the perpetrators -- that spun off into a core issue in the recent US presidential election. The US is pursuing its war on terror in the region with vigour. It has commenced building barracks in Afghanistan; seems as if the allies and the US are there to stay for some time.
However, at the same time, American civil society is as concerned with the cost of war on terror -- the prospect of body bags, and the drain on its resources in these economically troubled times -- as it is with the denting of the US value system and reputation, what with Abu Ghraib and Gitmo.
Criminal justice is about investigation, determining who the suspects are, trying them in courts of law, and handing down to the guilty laid down punishment for the offences they have committed beyond any shadow of doubt. The intent is to neither please the state, nor give any satisfaction to it, or even to please the victim.
The majesty of law prevails only when all branches of the government uphold the rule of law. A verdict of not guilty by a court of law is not a defeat of the executive, any more than successful prosecution is a victory of the State.
The winner, at all times, is the rule of law, and the common citizen who feels reassured that he would never be punished if he is innocent, even when charged with an offence by the executive. The focus in the domain of justice remains on the individual. The domain of justice has hardly anything in common with the domain of war. War is altogether different. It is about asserting national will by force of arms.
The domain of war does not exclude other means but its theme is the use of force to national advantage, and resisting the use of force by the enemy to his disadvantage. The soldier is trained to go into battle without fear, and to kill without remorse or pity. War exacts terrible costs even from the victor; for the loser, it can mean absolute degradation and servitude, that is, survival without honour.
Nations go to war to win; there is no other way to fight a war.
The value system of war recognises effectiveness and success; it is blind to all other value systems if they weaken the resolve of the military, and others who fight alongside. The fighting soldier differentiates between friend and foe. He is concerned with neither the guilt nor the innocence of the individual adversary. These considerations do not enter his calculus.
The science and art of war aim at minimising costs and penalties of war while achieving politico-military goals. The focus remains on collective well-being and concerns; the rights and prerogatives of the individual are subsumed for the duration of war. It is for this reason that doctrines for war and justice do not mix well. Such an effort is likely to yield less than happy results; it may even prove to be counter productive.
Depending upon personal predilections a few may choose not to forget human decency even during the worst of war situations. Nevertheless, that is rare. History of the civil war in the US is a testimony to this conclusion. The values of the Founding Fathers had no apparent influence on the behaviour of the forces that fought the Confederacy.
One wishes that war had remained frozen in medieval times where it properly belongs. Efforts to 'civilise' war are well meant, and yet they are ill conceived. Contemporary times and technology have not changed the fundamentals that govern the use of force -- they never would, since they are predicated upon basic human strengths and weaknesses -- nor have they created national or international institutions that effectively put an end to excessive use of force.
Nothing of the kind has happened through all the ages: notice the 'shock and awe' of bombing of Iraq by the US in a preventive war, or the recent rocket and aerial attacks on Gaza by Israel. Examples from the US have been picked because it has a leadership role in the comity of nations. Other military forces elsewhere do not behave very differently. When facing death or worse, the soldier is unlikely to greatly care about the value system that is appropriate to stable and secure societies.
'Prisoner of war' is a concept that is firmly in the domain of war. A prisoner of war is essentially an enemy that survives -- he could have been killed. His captivity is proof enough of his being at war; no one is required to 'prove' that he is indeed a prisoner of war and not an innocent bystander who was picked up without proper investigation or evidence. Conclusion by the captor is sufficient.
The prisoner is interrogated for his intelligence value and then held captive until the war ends. He is not released early based on what he did or did not do. Is it unjust? Perhaps, it is; but in a perfect world, would there be brutal war, unlimited greed, or inequality? Why add the additional burden of civil society to the soldier's haversack? Leave it to his basic character and training without distracting him from his effectiveness and will to win.
Messrs Al Qaeda and Taliban developed the 'inter-continental terrorism' that hit the US on 9/11 based on their experience of armed insurgency and irregular warfare, possibly with some support from the operatives of Pakistan's ISI.
Pakistan is hell bent on deriving full mileage out of its 'creative' prowess. Neither Geneva Conventions -- applicable to bonafide prisoners of war -- nor the dictates of municipal or international law can cope with the reality of contemporary terrorism of this brand. Criminal law cannot cope with terrorism as a genre of warfare; criminal law cannot deter individual terrorists whose instinct has been blunted by motivation to the extent that they want to die.
The real matter of concern is about the likelihood of one's own citizens suffering as terror suspects because of error, or overzealousness of individuals charged with the responsibility of investigation. The problem areas inherent in accommodating terror suspects in the domain of criminal law have been highlighted in the seminar organised at the Indian Law Institute on January 27, 2009.
Jurists, policemen, social scientists, military men and experts in international law may eventually evolve a paradigm for dealing with terrorist-suspects in a civilised but effective manner so that the fundamental rights of its citizens are not abridged when they happen to be terror suspects.
A domain of law that especially addresses the terror-suspects of Indian origin, and the rest, may eventually come into being, but not in the near future. Until that happens, it may be a practical proposition to treat terrorists as if they were prisoners of war, and not get them into courts of law.
Logically, the question of releasing a prisoner of war should not arise until the war is over; if released, he may reappear to fight another day. Such is the cold logic of war. The Geneva conventions have had a limited civilising influence on how the prisoners of war are treated.
A deadly cocktail of many factors have improved the ability of the terrorists to strike at will and effectively. The attrition ratio is in favour of terrorists in whichever terms it is calculated -- effort in person-days, casualties, financial loss, morale, and so on. Apart from the dedication to their cause, craft, courage, and absolute ruthlessness, the terrorists succeed so often because they can neatly step out of the 'domain of war' and into the 'domain of justice.'
By doing so, they exploit the civil society of the victim to the latter's disadvantage. It is part of the craft of the terrorists and his mentors as we saw after 26/11.
The US has succeeded in its war on terror to the extent that it has avoided a repeat of 9/11, but it has not been able to get rid of terrorism. Far from success, it is as bewildered as any other victim of terrorism. India ought to consider the matter from first principles and yet benefit from the US experience.
The entire notion and idea of 'proving' in a court of law, to the satisfaction of Pakistan, that Ajmal Kasab is one of the terrorists that attacked Mumbai needs to be seriously re-examined. For whose benefit does India want to prove that Ajmal Kasab is a terrorist? Millions, the world over, saw in real time on their television screens on 26/11, Ajmal going about his terrible job, weapon in hand. What other proof is required?
Trying Ajmal in a court of law in India is not a good idea. It will merely give him a forum to make political statements before an international audience. Even if he were to recant, the sceptics may still scoff. He is a small fry in any case.
All the effort involved in convincing Pakistan with suitable 'evidence' that Ajmal Kasab is a terrorist, and that he is a Pakistani citizen, is wasteful. It will achieve nothing; on the contrary, it has induced a sense of complacency in India. The nation-wide strikes by the transporters and petroleum executives soon after 26/11 would have been unthinkable had the seriousness and urgency about prosecuting war on terror prevailed in the country.
India does not have to justify to Pakistan its actions while prosecuting war on terror, and least of all in any court of law. India's satisfaction is sufficient. Let Parliament sit in judgment and decide.
Active support and assistance to armed insurgents in Kashmir, and countrywide terror attacks in India is a major strand of Pakistani strategy. Ever since the Tashkent-talk in February 1966, Pakistan is averse to signing a no-war pact with India unless the Kashmir dispute is resolved to its satisfaction.
India should expect a string of more attacks by Pakistani and Pakistan-inspired terrorists in the days, months, and years to come. The idea that Pakistan will cooperate with India in its war on terror is not well founded.
India will not get 'justice' from any court of law. It has to win its war against Pakistan sponsored and assisted terrorists. Lesser terrorists and vigilante groups will dissolve. In our times of undeclared war, war on terror is confounding enough; we do not have to wage war on terror in courts of law, as we seem to be doing.
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