ID: 226441    9/23/2009 9:06    09ISLAMABAD2293    Embassy Islamabad    SECRET    09ISLAMABAD2185|09ISLAMABAD2288|09PESHAWAR187    "ACTION SCA-00

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E.O. 12958: DECL: 09/18/2034 TAGS: PHUM, PGOV, MOPS, PTER, PK

SUBJECT: ANTI-TERRORISM ACT CHANGES MAY NOT ADDRESS DETAINEE PROBLEM

REF: A. (A) PESHAWAR 187 B. (B) ISLAMABAD 2288 C. (C) ISLAMABAD 2185

Classified By: Ambassador Anne W. Patterson, Reasons 1.4 b and d.

1. (S) Summary:  Parliamentary Affairs Minister Babar Awan informed PolCouns that the changes his office was proposing to Pakistan's Anti-Terrorism Act were not/not designed to address the prosecution of those detained in combat operations.  Instead, they were designed to ease the prosecution and conviction of terrorist suspects by allowing introduction of forensic evidence in courts, easing the introduction of confessions, and increasing security for judges and witnesses.  Awan stated that new legislation to establish a separate legal process for dealing with those detained in combat would be necessary.  Awan was defensive about the issue of extra-judicial killings of detainees by Pakistan security forces, repeatedly stating that these were isolated incidents and not the result of government policy, but he admitted that lack of confidence in the current judicial system's ability to deal with these detainees was likely a contributing factor in the actions of some members of security forces.  In a separate meeting with Border Coordinator on the detainee issue, ICRC Delegate Cuttat concurred that a new legal process for dealing with detainees was necessary and indicated that ICRC would be willing to assist, quietly, in the drafting of necessary legislation. He requested USG support in pressing for ICRC access to detainees, which post will pursue.  End Summary

2. (C) As initial steps to implement a strategy on dealing with the allegations of Pakistan military involvement in extra-judicial killings, PolCouns met with Parliamentary Affairs Minister Babar Awan to discuss GOP intentions regarding legislative changes to the country's Anti-Terrorism  Act (ATA).  Awan, who confirmed that he has been given the responsibility for preparing draft legislation and shepherding it through parliament in October, claimed that the ATA changes being considered by the federal government would not/not address the issue of dealing with those detained in combat.  Minister Awan was either unaware or dismissive of recommendations forwarded by the NWFP government for legislative changes that would have helped to accomplish this goal (ref A).

3. (C) Awan informed PolCouns that the legislation currently under consideration by the government would focus principally on changing evidentiary standards applicable to cases in the Anti-Terrorism Courts previously established under the act.  The Minister claimed that the changes would permit the introduction of forensic evidence that was generally in use elsewhere in the world.  It would also relax standards for the admission of confessions obtained by foreign and local law enforcement and other government agencies.  The change in standards, Awan claimed, would ease the prosecutorial burden in high-profile cases, including the case against the Mumbai terror attack suspects scheduled to begin after the upcoming Eid holidays, and make conviction of suspects more likely.

4. (C) Awan claimed that fear of terrorist groups reprisals  was a primary reason both for lack of witnesses in  terrorism trials and for acquittals by trial judges. Awan asserted that he intended to include a witness protection program as part of the new ATA legislation.  This would enable government security agencies to offer protection and, in some cases, new identities for those prepared to testify in terrorism trials.  Awan was equally keen to implement a program to allow trials of terrorist suspects by unidentified judges using either one-way video conferencing or one-way mirrors to conceal the judge's identity from all those involved in the case.  Awan referenced a similar, successful program in Colombia that was used in narco-trials.

5. (C) PolCouns expressed concern to Awan that nothing contained in his proposals would facilitate the successful trial of suspects detained during combat in Malakand or the Federally Administered Tribal Areas (FATA).  Awan agreed that this was the case, but claimed that the ATA process could not be reformed to make it adequate for use in such cases. PolCouns inquired whether the GOP was planning a separate administrative process for dealing with such detainees.  Awan stated that this was a serious and growing problem but that the government had not yet decided how to address it.  The Minister shared that he would prefer to introduce new legislation in the Parliament that would establish a separate judicial process for dealing with combat detainees.  Awan stressed that government transparency would be key in getting broad societal buy-in for such a program.

6. (C) PolCouns expressed USG concerns that the detainee problem could be a factor in extra-judicial killings by security forces that have been alleged in the Malakand Division operations.  Awan responded that he considered the New York Times article on the issue to be highly exaggerated and intended to write a formal government response denying its claims.  Awan conceded that some revenge killings of terrorists by elements of the security forces had likely taken place, but that prevention of such killings was exceptionally difficult given cultural constraints in the region and were not a part of government policy.  Awan stated that he sympathized with security forces, who feared that if detainees were charged under the current system, they would be released by the courts.  Awan surmised that this fear could well be a factor in the actions of some individuals but reiterated that this was not government policy and that those killed represented a serious danger to society.

7. (S) Border Coordinator met separately with International Committee of the Red Cross (ICRC) Delegate Pascal Cuttat. Cuttat agreed with post's assessment that the inability to prosecute detainees effectively through the justice system was a contributing factor in security forces extra-judicial killings of detainees.  Cuttat concurred with post's suggestion to assist the GOP in drafting new legislation or a presidential ordinance to deal with detentions-in-combat and stated that ICRC would be willing to participate in a low-key way in such an exercise.  Cuttat requested USG assistance in  obtaining ICRC access to detainees, stating that such access  would not only help diminish human rights abuses, but would  also be a positive step that the GoP could take to show that  it is taking the accusations of extra-judicial killings  seriously.  Post will pursue this request with the Pakistani government.

8. (S) Comment:  Minister Awan's lack of knowledge or dismissal of NWFP government proposals to change the ATA (ref A) is disappointing.  While his focus on evidentiary standards and protection for judges and witnesses will improve the system and increase convictions in ordinary  terrorism trials, it will do little to address the growing  detainee issue.  Post will pursue with the government the possibility of broadening ATA changes to improve its utility as a tool for prosecuting some of those detained in combat, while simultaneously continuing to encourage the GOP,  in collaboration with international organizations and donors,  to develop a credible legal process for dealing with combat  detainees.  Post will equally pursue the ICRC's request for access to detainees.  End Comment PATTERSON