Opinion Have we wasted 26/11?

After 9/11,the United States government engaged in a serious public deliberation by establishing the Bipartisan Commission,consisting of Repuplicans and Democrats,to examine the causes of 9/11 and suggest action for the way forward. The US government then went ahead to revamp the legal framework dealing with anti-terror and upgraded the security infrastructure. India does not need to follow the same steps taken by the US government,but should certainly take steps to see how to prevent future terror attacks.

Post 26/11,the Indian Parliament enacted the National Investigative Agency Act,which created the National Investigative Agency (NIA). The stated objective of the NIA Act was to improve our anti-terror response and ensure that a future 26/11 attack does not occur again. In principle,the concept of National Investigative Agency is a good step because state governments — however aggressive — are confined by territorial boundaries and do not have the required legal powers and security infrastructure to deal with globally coordinated terror attacks. But a closer examination of the institutional design of the NIA reveals three fatal flaws,which precludes it from responding to global terror attacks.

First,the NIA is structured to deal only with the investigation of anti-terror offenses and not detection and prevention of anti-terror attacks. Religion-based terrorism is not deterred by post-attack investigation and prosecution,however effective,since the terror attack is the end objective for the terrorist. Any anti-terror effort should focus more on gathering intelligence which could help in the prevention of anti-terror attack. This is particularly so when the next round of terror attacks are likely to be chemical and biological.

Second,the NIA is handicapped since it lacks the powers to take action on its own initiative. There is a heavy bureaucracy in the investigation of offenses by NIA. The jurisdiction of NIA is confined only to certain stipulated offenses in the NIA Act and even with respect to those offenses,the NIA cannot initiate the investigation. The NIA Act mandates that any offense which has to be investigated by NIA,the local police officer should first submit the report to the state government and the state government should in turn submit that report to the Central government,who will then examine if the case should be referred to NIA. Agility is a critical virtue while dealing with terror and unfortunately the NIA Act sacrifices it in favour of governmental approvals.

Third,the NIA Act does not address the crucial issue with respect to fighting global terror — co-ordination among various governmental agencies and security agencies. The perpetrators of terror have a synchronised approach while committing acts of terror,but a democratic and a federal polity like India tends to have a compartmentalised and segregated approach to dealing with terror attacks. Any effort to detect,prevent and adequately respond to terror attacks requires co-ordination across multiple layers of government. The NIA can be an effective anti-terror agency if it has powers to simultaneously take inputs from the local policemen on the road with the highest intelligence official operating out of the country; an agency which deals with an official in the finance ministry who is responsible for monitoring money laundering with a defence ministry official who is monitoring external attacks. The NIA must be an agency which can synthesise intelligence from multiple sources into operational planning.

The crucial lesson which the US learnt from the 9/11 crisis was not to create agency,but rather ensure that there was “unity of efforts” among various agencies. The Bipartisan Commission set up to investigate the 9/11 attacks found that one of the biggest impediment in the anti-terror attacks is that multiple security agencies simply don’t talk to each other and critical intelligence information inevitably ends up falling in the gap. The objective is not centralisation,but rather co-ordination.

For too long,the political discourse on terrorism has been confined to stringent criminal laws vis-à-vis civil liberties. We need to go beyond this discourse. The larger question which needs to be asked is — how can we organise government differently to deal with future terror attacks?

The author is a practising lawyer.