June 16, 2011

Jury's Prudence

The following column appeared in The Indian Express on June 16, 2011.

There has always been a tension between the compulsions of national security and those of justice, the irony being that each exists in part to preserve and advance the other. At its crudest, that tension can be captured by the cliché of a ticking time-bomb, and the debatable use of illegal interrogation techniques to determine its location, Jack Bauer-style. In an era of transnational threats such as terrorism and cyberwarfare, it is perhaps more useful to think of the dilemma in the context of determining responsibility or culpability for state-supported, cross-border crimes.

Most legal systems are based on the presumption of innocence. But this is often disregarded in the realm of national security. And with good reason. Expediency and complications pertaining to jurisdiction mean that due legal process resulting in guilt beyond a reasonable doubt is often either impractical or impossible. Evidence acquired through covert or clandestine means can be compromised and, in any case, is unlikely to hold up in a court of justice. National security decisions must by their nature be based upon lower levels of probability and certitude, meaning that in effect one can sometimes be considered guilty if not proved innocent. It is little wonder then that sceptics — based on their priorities — consider international law to be everything from unnecessarily onerous to quaintly irrelevant.

The acquittal in a Chicago court of Pakistani-Canadian Tahawwur Rana on the charge of providing support to David Coleman Headley for the 2008 terrorist plot against Mumbai has elicited a curious response in India, a blend of doubt, confusion and misapprehensions about US motives. But because it is a legal, rather than a national security, decision, the jury’s verdict is ultimately of little consequence either as an indicator of US policy or as a determinant of Pakistani state or official complicity.

Rana was arrested by US law enforcement officials in 2009. A federal grand jury found reasons to indict him on charges of providing material support for the planning and execution of 26/11 attacks, for the plot against the Jyllands-Posten newspaper in Denmark, and to the Lashkar-e-Toiba. Because the evidence linking Rana to the 26/11 plot was based heavily on Headley’s testimony, the credibility and motives of the prosecution’s star witness were called into question by the defence. Although Rana did indeed seem to provide cover for Headley’s visits to India, the jury apparently felt they could not determine beyond reasonable doubt that he did so fully cognisant of Headley’s intentions.

Given the independent judicial process, and the steps taken by US law enforcement officials up to and during the trial, the jury’s verdict can in no way be construed as an extension of US policy. While that may appear obvious to many in the legal, political and policy communities, it appears not to be reflected fully in popular Indian consciousness. Online commentators, newspaper columnists and even opposition political leaders have suggested, for example, that bureaucratic politics, international appeasement and even racism might have been factors in determining the outcome, the last element a result of Rana’s having been found guilty for his role in the Danish plot.

At the same time, the absence of adequate evidence in support of Rana’s willing involvement in the 26/11 plot exonerates neither the Lashkar-e-Toiba nor Pakistan’s security forces. Given the immense amount of circumstantial evidence and the efforts taken by Pakistani officials to obfuscate the truth behind the 2008 Mumbai attacks, the onus remains upon them to demonstrate their innocence. Tahawwur Rana may have benefited from due legal process. But others responsible for the deaths of 26/11 do not necessarily enjoy that privilege in the Star Chamber of international politics.