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Federalism and National Security

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No one can deny that the US has greater federalism than most nations and more certainly than India. Each of its fifty states is fiercely independent and zealously guards its turf. The US also has the strongest anti-terror laws in the world and sees no contradiction between federalism and national security. In the aftermath of a rare terrorist attack on US soil in September 2001, the US administration strengthened its intelligence gathering organs. The enactment of the PATRIOT Act in 2001 was the first step. In fact ‘PATRIOT’ is acronym for ‘Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism’. This was followed by enacting the Homeland Security Act in 2002. The objective of these acts is to collect, collate and process intelligence and prevent terror related activities. The upshot of all this is, not a single terrorist incident occurred in the US since 2001.

However, in India no sooner than the central government announced the setting up of a ‘National Counter-Terrorism Centre’ (NCTC) all hell broke loose. The first protest came from the Bengal chief minister, whose Trinamool Congress is a coalition partner in the Centre and followed by four more chief ministers. Opposition leaders too chipped in. By evening the numbers added up and counting. This is surprising in a nation that has seen terrorist violence with unceasing regularity. By nightfall television channels had a field day. Imaginations run riot. National security was sidelined. The question some television journalists asked was whether there was more to the four chief ministers crying wolf in unison than a shared dread of the new security act. Were they in fact pitching in for a new political formation and the open revolt against NCTC only an excuse?

But to be fair, the opponents of NCTC have a point. It was not mere paranoia. There has been a long record of the central government interfering in the affairs of the states, from the time Jawaharlal Nehru had Kerala’s communist government dismissed in 1957. His daughter Indira dismissed governments at will, destabilised opposition governments with the help of pliant governors and was the infamous author of a draconian emergency that suspended fundamental rights. It is no secret that over the years India’s intelligence organs were used not for strengthening internal security but for spooking on political rivals and state governments ruled by opposition parties. It is perhaps due to such misuse that every time there is a terrorist attack, our home ministers proffered the ready excuse of ‘intelligence failure’ for failing to prevent it! From the ‘ineffective’ Shivraj Patil to the seemingly effectual if ‘intellectually arrogant’ Chidambaram, they all cried ‘intelligence failure’ while wringing their hands and mourning deaths after terrorist strikes! Even the National Investigation Agency (NIA) which was constituted with much fanfare in the aftermath of the deadly terrorist strike on Mumbai in November 2008 scored ‘love’ in four years in terms of crimes solved.

What the opponents of NCTC found most objectionable in its notification was the organization’s power to detain, arrest and interrogate. The local police are informed but that is about it. Vesting shadowy, secretive organizations with sweeping powers to detain, arrest and – especially – interrogate is a scary thought. In Britain, neither the Security Service (MI5) nor the Secret Intelligence Service (SIS, also known as MI6) has any powers to arrest. If they want to arrest a suspect they have to seek the help of the local police or Scotland Yard (London’s metropolitan police force), which will officially conduct the arrest. The reason for this is, ‘civil’ police do not resort to arbitrary arrests and detentions. When they detain a person, they have to follow the due process of law, such as informing him of his rights, recording the date and time of arrest and most importantly producing the ‘suspect’ in a court of law within twenty four hours. If a more stringent law like the Unlawful Activities (Prevention) Act (UAPA) is applied the period of detention may extend up to ninety days but the arrest and detention is under the gaze of the judicial system. It is the judicial system that decides the merits of the case and, sanction detention and interrogation.

Such open processes help prevent disastrous consequences of what Malcolm Gladwell calls erroneous ‘intuitive judgements’. In his seminal work ‘BLINK’, on the ‘power of thinking without thinking’, he recounts an incident that occurred in New York in 1999. In the early morning twilight of February 4 that year twenty-four year old Amadou Bailo Diallo was returning home when Edward McMellon, Sean Carroll, Kenneth Boss and Richard Murphy, four plain clothes officers of the NYPD passed by. Diallo was a Guinean immigrant who came to New York to study biochemistry but ended up becoming a sidewalk vendor. In the half light, the policemen thought he resembled a serial rapist they were looking for. They asked him to stop but the sight of the four officers and the patrol car so frightened Diallo that he turned and ran into his apartment. At the entrance he turned and pulled out a black object from his coat. As the officers chased Diallo, McMellon stumbled on the steps and fell. The other officers mistook that Diallo shot McMellon and opened fire. They fired 41 rounds 19 of which entered Diallo’s body. As they approached Diallo’s dead body they could see the black object which they mistook to be a gun was just his wallet. In all probability Diallo pulled out his wallet as he wanted to ‘square up’ with the policemen. It was a case of racial profiling and an error of ‘intuitive judgement’ horribly gone wrong.

Coming back to the NCTC, if the home minister is serious about strengthening intelligence gathering organs and anti-terror operations, the best course would be to apprise state governments of his intentions and take them on board.

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