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Licence to spy

November 28, 2012

IN the rattled September of 2001, fear reigned supreme in the United States. The legislative child born of the Sept 11 attacks was the USA Patriot Act of 2001.

Strident and scolding, its avowed purpose was “to deter and punish terrorist acts around the world, to enhance law-enforcement investigatory tools and other purposes”.

These “other” purposes included preventing the financial support of terrorist activity and to “subject to special scrutiny foreign jurisdictions” that supported or financed terrorist organisations or activity.

More noxious clauses included wide powers to detain non-immigrants without criminal charges, allowing the FBI to obtain secret warrants to monitor the activity of “suspicious” persons, ethnic and religious profiling and the like.

Other laws enacted at the same time allowed for military tribunals, secret preventive detention and a host of other powers that denied both privacy and liberty to individual citizens. The shadow of the falling towers deemed it all absolutely necessary.

In Pakistan in 2012, a good solid decade and more after those attacks, legislation is set to be introduced in the National Assembly that asks for similar powers to watch, record and detain Pakistani citizens for the purpose of better investigation of potential involvement or support of terrorist activity.

It is undoubtedly the right time to do this. Just this weekend past, a silent country watched with trepidation the Muharram processions passing through streets weighted with the threats of unseen bombs — ball-bearings and nails, ammonium and nitrate, ready to tear through human flesh.

Under this pall, the Investigation of Fair Trial Bill 2012, whose draft awaits debate in parliament, is at least timely. It proposes to use “modern investigative techniques such as covert surveillance and human intelligence, property interference, wire-tapping and communication interception” that are already “used extensively in other jurisdictions”.

The Investigation of Fair Trial Bill 2012 would allow bugging, recording, listening and tapping into any sort of activity of any citizen of Pakistan at home or abroad, at the secret behest of a handful of officials.

The logic is simple: if shutting off cellphones for the fear-filled millions contributes to preventing attacks, then the surveillance of emails, cellphones and Internet activity, etc, and the legal ability to force both international and local service providers to give up private information, must certainly be crucial.

And, of course, to render easy the perusing through emails and listening in on phone calls, the procedure to obtain permission must also be easy.

The proposed provisions of the Investigation of Fair Trial Bill 2012 envisage just such a facility; all that has to be done for permission under its auspices is for an “official” to apply to his “superior” and give the reasons why he wants to spy on someone. This “superior” can go to a “concerned judge” who can issue the warrant, in the happy secrecy of his “chambers”.

The warrants can be issued for six months and if that is not enough to catch all the terrorists, the licence to spy can be renewed and then renewed again.

If the task of catching a terrorist was to be presented as a recipe on a cooking show, it would be the equivalent of boiling an egg and garnishing it with salt and pepper.

Balking at the proposed Investigation of Fair Trial Bill 2012 doesn’t just involve a large morsel of watchfulness and snooping that would be pushed down the nation’s throat if it were adopted.

Pakistanis have become used to dwindling liberty, thanks to terrorists who have bled the nation of any sense of physical security. If the cancer allegedly being fought has already diseased the patient, erased the features of Pakistan’s liberty beyond recognition, then what critique can be made for an additional dose of chemotherapy that may provide even a moment of resuscitation with its own poison?

The laxness of the Investigation of Fair Trial Bill 2012, the ease with which it seeks to impose surveillance on private citizens’ activity, can all be justified with the arguments used to defend the Patriot Act.

However, in the US, civil rights activists and organisations such as the American Civil Liberties Union, which had seen the failure of previous government overtures to curb freedom and invade privacy on the pretext of protecting the people, continued to criticise the provisions of the Patriot Act.

They won some limited victories, but they battled a stubborn, numbing fear of terror made amorphous and all-encompassing by those who peddled it, and the act remains the law today.

If anything, in Pakistan — pungent with the blood of tens of thousands of casualties of terrorism, eerie with the silence of streets and cellphones — the proposed Investigation of Fair Trial Bill 2012 can come across as the belated efforts of a government finally aiming to expend forensic and investigative resources to examine the clues left in the wreckage of hundreds of devastations.

The details — the absence of a single DNA lab in Karachi, the lack of technical data and experts in forensic analysis, and the loopholes which would allow easily gleaned personal information about ordinary citizens to be used for extortion and blackmail — are not yet being considered.

Debate on the proposed Investigation of Fair Trial Bill 2012 was deferred recently; in its stead there loomed fear, the hapless hopes of ordinary Pakistanis for trials, for fairness and for actual investigations.

The writer is an attorney teaching constitutional law and political philosophy.