Identifier
Created
Classification
Origin
08NEWDELHI3197
2008-12-19 12:38:00
CONFIDENTIAL
Embassy New Delhi
Cable title:  

GOI'S SWIFT COUNTERTERRORISM STEPS HELP LIMIT

Tags:  PGOV PTER PHUM PREL PINR KDEM KISL PK IN 
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TO RUEHC/SECSTATE WASHDC IMMEDIATE 4795
INFO RUCNCLS/ALL SOUTH AND CENTRAL ASIA COLLECTIVE
RUEHBJ/AMEMBASSY BEIJING 7270
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RUEKJCS/SECDEF WASHDC
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RHEHNSC/NSC WASHDC
RUEIDN/DNI WASHINGTON DC
RHHMUNA/HQ USPACOM HONOLULU HI
RUCNDT/USMISSION USUN NEW YORK 7399
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RUEKJCS/JOINT STAFF WASHDC
RUMICEA/USCENTCOM INTEL CEN MACDILL AFB FL
C O N F I D E N T I A L SECTION 01 OF 06 NEW DELHI 003197 

SIPDIS

DEPT FOR D, P, SCA

E.O. 12958: DECL: 12/19/2018
TAGS: PGOV PTER PHUM PREL PINR KDEM KISL PK IN
SUBJECT: GOI'S SWIFT COUNTERTERRORISM STEPS HELP LIMIT
POLITICAL DAMAGE

REF: A. NEW DELHI/3167/3166/3165/3164/3163

B. NEW DELHI 3158/3157/3156/3127/3125/3124/3116

C. NEW DELHI 3097/3067/3054/3052/3046/3037

D. NEW DELHI 3025/3024/3018

E. MUMBAI 550

Classified By: Ambassador David C. Mulford for Reasons 1.4 (B, D)

This is an action request - see para 18

C O N F I D E N T I A L SECTION 01 OF 06 NEW DELHI 003197

SIPDIS

DEPT FOR D, P, SCA

E.O. 12958: DECL: 12/19/2018
TAGS: PGOV PTER PHUM PREL PINR KDEM KISL PK IN
SUBJECT: GOI'S SWIFT COUNTERTERRORISM STEPS HELP LIMIT
POLITICAL DAMAGE

REF: A. NEW DELHI/3167/3166/3165/3164/3163

B. NEW DELHI 3158/3157/3156/3127/3125/3124/3116

C. NEW DELHI 3097/3067/3054/3052/3046/3037

D. NEW DELHI 3025/3024/3018

E. MUMBAI 550

Classified By: Ambassador David C. Mulford for Reasons 1.4 (B, D)

This is an action request - see para 18


1. (C) To respond to the public outcry following the Mumbai
terror attacks, the GOI moved quickly to limit the political
damage and demonstrate that it is serious about combating
terrorism. It forced through a bill to create a new crime
fighting federal agency that will concentrate on terrorism
and other national threats. It amended existing law to
strengthen the hands of security and law enforcement agencies
in fighting terrorism. It scrambled to move forward on
longstanding draft legislation dealing with terrorist finance
and the mandate of paramilitary forces to protect
infrastructure. The GOI also took some administrative steps
to improve the terror fighting capacity of security agencies.
Two themes have framed the public debate on the new
legislation: states' rights vs. federal power; and civil
liberties vs. stronger law enforcement powers. The new
Indian legislation and the GOI's renewed focus on terrorism
offers the possibility for revitalizing our bilateral
cooperation on counterterrorism. U.S.-India counterterrorism
has surged forward in the aftermath of Mumbai; however,
implemention of the new legislation will be key and it is too
early to tell whether we can look forward to a deepening of
this cooperation. Following a dazed and clumsy initial
response to the Mumbai terror attacks which elicited scathing
criticism and ridicule from its political opponents, the
press and the public at large, the UPA appears to have
recovered its footing limited the political damage. It is
not yet clear, however, whether the new legislation will
bring about the the paradigm shift needed in India to fight

the growing terrorist threat. End Summary.

Parliament Acts Swiftly
--------------


2. (U) After vigorous debate, the Indian Parliament on
December 18 passed two pieces of legislation to strengthen
India's terrorism fighting capacity in the aftermath of the
Mumbai attacks. One bill creates a new federal National
Investigation Agency with robust powers to investigate and
prosecute selected terrorism-related threats and crimes. The
other bill tightens provisions of the existing law to target
terrorism. The two bills will become law upon the
President's signature, which is expected immediately.


3. (U) The Lok Sabha (lower house) passed the legislation on
December 17 while the Rajya Sabha (upper house) approved it a
day later. There was strong and remarkably untited support
for the measures, which sailed through by voice vote in both
houses. Bharatiya Janata Party leader L.K. Advani, while
declaring his strong support for the legislation, accused the
ruling United Progressive Alliance (UPA) coalition of
reacting too late to the threat of terrorism. Seeking to
take credit for the tougher laws, he pointed out that the UPA
had repealed the strong Prevention of Terror Act (POTA) as
one of its first pieces of business. He welcomed the UPA's
change of heart. He was, however, attacked effectively by
the government for his own considerable failings in
countering terrorism when he was Home Minister in previous
BJP-led government. Amendments offered by the Left parties
to dilute some of the provisions were shot down.

National Investigation Agency (NIA)
--------------

NEW DELHI 00003197 002 OF 006




4. (U) The NIA bill creates a federal agency with powers to
investigate and prosecute terrorism and other crimes that
threaten the "sovereignty, security and integrity" of India,
including hijacking and attacks on nuclear plants. The
jurisdiction of the NIA extends to crimes covered under the
following laws: The Atomic Energy Act 1962; The Unlawful
Activities (Prevention) Act 1967; The Anti-Hijacking Act
1982; the Suppression of Unlawful Acts Against Safety of
Civil Aviation Act 1983; The SAARC Convention of (Suppression
of Terrorism) Act 1993; the Suppression of Unlawful Acts
Against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act 2002; the Weapons of Mass Destruction
and Their Delivery Systems (Prohibition of Unlawful
Activities) Act 2005; and offenses under certain specified
sections of the Indian Penal Code.


5. (U) The enabling legislation requires the agency to
obtain prior consent from the Home Ministry before taking on
a case. It makes it mandatory for the states to extend all
cooperation and assistance to the NIA once it has opted to
become involved in the case. To ensure speedy trials, the
bill establishes special courts to be presided over by judges
appointed by the GOI in consultation with the Chief Justice
of India. The seniority of presiding judge must be at the
level of at least a Sessions Judge or an Additional District
Judge. The law also includes provision to protect witnesses
and to allow in-camera hearings.

Unlawful Activities (Prevention) Amendments (UAPA) Bill
-------------- --------------


6. (U) Instead of a full rewrite of the criminal statutes
dealing with terrorism on the model of POTA, the Indian
Parliament passed a bill to amend the provisions of the
existing Unlawful Activities (Prevention) Act 1967 to add
stringent provisions that strengthen the hand of law
enforcement in fighting terrorism. The amendments include
provisions to:

-- shift the burden of proof to the accused in terrorism
cases if arms or explosives are uncovered

-- tighten relevant laws to allow wiretaps being used as
evidence (Note: Recordings or transcripts of tapped phone
calls are not generally accepted as primary evidence in
Indian courts)

-- require a fast-track process for appeals (30 days for
appeal to be filed; 90 days for High Court to rule on the
appeal)

-- increase from 15 to 30 days the period of time an accused
can be kept in police custody

-- tighten bail provisions in terrorism cases: no
anticipatory bail; no bail for foreigners who entered
illegally; no bail without the prosecutor

-- maximum life imprisonment for those involved in terrorist
activity

-- no Indian national accused in terrorism cases to be
released on personal bond

-- freeze assets and bank accounts of accused and their
"overt and covert" sympathizers and financiers

-- increase from 90 days to 180 days the period of time
before charges must be filed with a court

-- indefinite detention without charge for foreign nationals

NEW DELHI 00003197 003 OF 006


involved in terrorist activities

-- up to ten years of imprisonment for those using explosives
or fire arms with intention of assisting terrorist activity.


GOI Close to Passage of PMLA Amendments
--------------


7. (C) The Mumbai attacks have also galvanized the GOI to act
on long-standing terrorist financing legislation. In Within
the new UAPA, besides the provisions for freezing assets, are
definitional requirements that meet all nine core Financial
Action Task Force (FATF) requirements. Even more encouraging
is the good progress made in the current parliamentary
session to enact the long-standing amendments to the
Prevention of Money Laundering Act (PMLA). Ministry of
Finance Joint Secretary Krishnan told Acting ECouns December
18 that he expects the amendments to the PMLA will pass
before Parliament concludes on December 23. Krishanan said
these amendments incorporate all 49 major FATF
recommendations on developing a robust AML/CFT architecture.
Following an intense review of the PMLA amendments earlier
this week, the standing committee's report to the lower house
of Parliament recommending early passage is complete. In his
best estimate, Krishnan predicts that the much-waited
amendments to the PMLA will pass both houses of Parliament in
the next couple of days and he will personally keep Mission
posted on the status. Krishnan added that the atmospherics
surrounding the passage of these amendments has changed
post-Mumbai and have been helped by the former Finance
Minister and now Home Minister Chidambaram's familiarity with
the legislation.


8. (C) Krishnan cautioned that the only possible glitch
preventing passage is that sudden economic or political
developments surface that push consideration of PMLA down the
legislative agenda to the extent that the GOI runs out of
time to get a vote by both houses of Parliament on the PMLA
by next Tuesday. Krishnan noted that the Indian perception
has been that the U.S. has been holding back India's standing
request at FATF to hold an early mutual evaluation -
regardless of whether or not the amendments are passed. He
said that other FATF members are satisfied with India
introducing the amendments without providing a specified date
of passage - something he points out is simply not possible
in India. He underlined that it should be enough that the
amendments have been introduced and are pending review within
Parliament. Krishnan said that a signal from FATF now that
it will schedule a mutual evaluation sometime in 2009 - will
bolster the GOI's case to Parliament for the urgent need to
put PMLA at the top of its agenda and enact the amendments by
December 23. In light of the Mumbai terrorist attacks,
there is now strong bipartisan support from the ruling UPA
and opposition BJP parties on the importance of the new PMLA
provisions and the securing of FATF membership for India.
Krishnan added that the FATF cell which is under his
supervision has been working actively to respond and reply to
the lengthy FATF questionnaires.

GOI Considering CISF Legislation
--------------


9. (U) The Cabinet approved on December 16 amendments to the
Central Industrial Security Force (CISF) Act to change the
mandate of the CISF, a federal paramilitary security force
used to guard public facilities, including airports, dams,
bridges and government buildings. The new legislation -- yet
to be be submitted to Parliament -- will seek to allow the
CISF to protect sensitive private sector facilities such as
hotels, oil refineries and other industrial facilities. The
private sector entities would be charged a fee for this

NEW DELHI 00003197 004 OF 006


service. The Cabinet Committee on Security had recently
approved a proposal to increase the size of the CISF by
40,000 personnel.

Previous post-Mumbai GOI Proposals
--------------


10. (U) In his December 11 addresses to Parliament, Home
Minister P. Chidambaram had announced the following measures,
which do not require new legislation:

-- Creation of several regional hubs for the National
Security Guard so it can respond faster to incidents

-- Creation of a Coastal Command for overall supervision and
coordination of maritime and coastal security. The mandate of
the Coastal Command will be to secure India's coastline

-- Filling vacancies in the intelligence agencies
expeditiously

-- Improve the technical equipment available to the
intelligence agencies

-- Creation of 20 counter-insurgency and anti-terrorism
schools in different parts of the country for training the
commando units of the state police forces.

Comment: Public Debate on Federalism
--------------


11. (SBU) Two issues frame the public debate surrounding the
the new legislation: states' rights vs. federal powers; and
civil liberties vs. stronger law enforcement powers. It will
take years for this debate to play out. The Indian
constitution considers maintenance of law and order a "state
subject" and, therefore, the responsibility of the states.
The BJP supports a new federal agency to combat certain
crime, but this idea has long been opposed and blocked by the
states as an encroachment of their states' prerogatives.
Members of Parliament from some regional parties voted
against the two bills. Home Minister Chidambaram recognized
the arguments of the opponent of the NIA, assuring them that
the federal government would make use of its power to bring
in the NIA only under "extraordinary" circumstances. He has
also called a meeting of Chief Ministers from all the states
on January 6 to try to secure their buy-in.


12. (C) The reality is that the states and federal
government will have to arrive at a practical working
relationship. States, not accustomed to federal interference
in law and order issues, will likely show institutional
resistance to parts of law and order portfolio being carved
out to a federal agency. The opposition BJP has supported
the idea of a new federal agency, provided the GOI also
introduces legislation to strengthen other laws dealing with
the tradeoffs between the rights of the accused and the
security forces.It will take time before the relationship
between the states and the federal agency is effectively
worked out.

Comment: Public Debate on Civil Liberties
--------------


13. (U) The GOI is acutely aware of the need to strike the
right balance between protecting civil liberties and
strengthening the powers of the security agencies to fight
terror. It had relentlessly attacked the BJP-led National
Democratic Alliance (NDA) government for enacting POTA, which
it had called a "draconian" measure, misused by some to
target Muslims. One of the UPA's first acts when it assumed
power in 2004 was to repeal POTA. In this context, the UPA

NEW DELHI 00003197 005 OF 006


pushing through legislation that comes close to POTA
illustrates the tremendous pressure felt by the government to
act forcefully after the Mumbai attacks. The GOI is still
loath to any comparisons with POTA. Its spokesmen go to
great lengths to explain why POTA was different.


14. (C) The UPA has also heard loudly from its own coalition
partners who have questioned some of the provisions of the
new legislation. The most frequently criticized measures are
ones that shift the burden of proof to the accused under
certain circumstance, change the rules of evidence and
tighten the bail provisions. However, the arguments of the
dissenters have been swept aside by the GOI in the wake of
the Mumbai terror attacks. The Prime Minister in a recent
speech warned that if India must fight terrorism effectively,
it will need to make some small comprises on human rights.
Home Minister Chidambaram has tried to soften the blow by
saying in Parliament that the legislation can be fine-tuned
during the February 2009 sitting of Parliament if provisions
are found to be wanting.

Comment: Positive Environment For CT Cooperation
-------------- ---


15. (C) The new GOI counterterrorism initiatives reflect the
fact that the Mumbai attacks have shocked the GOI into
action. For the USG, the new found GOI resolve is s welcome
sign and augers for bilateral counterterrorism cooperation,
where our offers had in the past been repeatedly resisted by
elements within the GOI. The new Home Minister had already
signaled a willingness to work with us on counterterrorism.
There are also signs that the GOI realizes that a lot more
needs to be done. The Home Minister conceded that the
passage of the legislation alone would not be a deterrent to
jihadis motivated to wage war against India. For the USG,
the creation of the NIA offers a possibilty that
counterterrorism cooperation will improve. U.S.-India
counterterrorism has surged forward in the aftermath of
Mumbai; however, implemention of the new legislation will be
key and it is too early to tell whether we can look forward
to a deepening of this cooperation.


16. (C) It is not clear, however, whether these initiative
are an the beginning of a paradign shift that is needed to
fundamentally changes the way that terrorism is fought in
India - from a reactive mode to a proactive aggressive
intelligence gathering and intelligence processing model in
which the numerous federal and state agencies
counterterrorism a top priority and work together and in
cooperation with the international community to stop the
attacks before they happen. The sweeping changes in the
counterterrorism legislation this week and some of the
statements of the Home Minister are an encouraging sign that
at least some in the GOI may be have begun to understand
this.

Comment: Finding its Feet
--------------


17. (C) The UPA appears to have finally recovered its
footing. The swift passage of the important NIA and UAPA
legislation has been the latest in a string of strong actions
that inspire some level of confidence in the public, as has a
house cleaning that removed an inept Home Minister, the Chief
Minister and Deputy Chief Minister of Maharashtra. It has
projected a stronger public image, in which the new Home
Minister Chidambaram radiates confidence. It has invoked
admiration for the clear apologies to the nation by the Prime
Minister and the Home Minister for the GOI's failure to
prevent the Mumbai attacks. That said, all this will quickly
unravel if there is another terrorist attack in the coming
months which casts renewed doubt on the GOI's competence.

NEW DELHI 00003197 006 OF 006




18. (U) Action request: Post requests that Treasury and
the Department consider discussing with FATF the feasibility
of commiting to a 2009 mutual evaluation with India and
conveying this to the GOI.
MULFORD