One may wonder if our politico-bureaucratic elite suffer from a lack of tradition on strategic thought. Such a worry arises in the present scenario when we see incipient signs of battles of proxy and low-level terrorism unleashed by the so-called religiously motivated extremists. There is no doubt that terrorism, in all its guises, not only flouts the law, but seeks, through acts of arbitrary and unforeseen violence aimed at the general public, to undermine their confidence in the security that the state is mandated to provide.
On ground, there is no denying that both state and the international community have found it difficult to frame effective counter measures to adequately tackle terrorist activity. That, however, cannot be a justification for the alleged procrastination on devising an adequate counter-terrorism strategy. The terrorist phenomenon, operating as it does undercover and unseen, represents a mortal threat to democracy everywhere.
A very significant imperative of a durable counter-terrorism strategy is to get the political consensus that such strategy needs. Have we in Bangladesh succeeded in achieving such a political consensus? Doubts would persist because in yesteryears, political establishments were not earnest in equal measure in fighting the menace. To state the obvious, a regime-centric approach does not only expose the myopia on a vital subject of public concern, it also adversely impacts the durability of a strategy with attendant confusion and inaction at the functional level.
Coming to specifics of the strategy, are we ready to legally legitimise the use of technology as a “neutral standard in intelligence gathering”, thus giving the government absolute powers to monitor private communications and access personal information. The United States Anti-Terrorism Act of 2001 has done that to ensure airtight surveillance of terrorists. One has to note that in a country almost fanatic about privacy and related issues - with constitutional safeguards for individual liberties - the passage of the US Anti-Terrorism Act 2001 was possible due to overbearing and extraordinary circumstances.
Consultation between political parties across the broad spectrum and resultant consensus on counter-terrorism strategies assumes heightened significance. This is because a subject that affects every single citizen perhaps provides the executive a permanent alternative to the existing penal and criminal procedure code. Even infringes on the right to information must necessarily be accompanied by a wider public debate. The inclusion of the country's entire political spectrum in the anti-terrorist initiative is perhaps the best way to end the turf war that has often marked the executive-judiciary relationship over the issue of special powers and where the judiciary's writ ends and the executive's begin.
In view of incidents over the last two months, it appears that the terrorist attacks form part of a consistent pattern of violent terrorist action, instead of isolated or sporadic action. Therefore, the appropriate step now is to have the conditions for self-defense met. For individual self-defense, the State has to be directly affected. The use of force has to be necessary and proportional to the terrorist attack.
Whatever might be the strategy, at the operational level, it might be impossible to measure the degree of seriousness of an armed strike or to judge the degree of consistency of terrorist strikes or assess, for that matter, how much action is “proportional” to balance the attack. One has to appreciate that the rules of war cannot always be applied to terrorism.
Our strategy should be such that enables the framing of administrative and legal measures which would make all acts of terrorism for political purposes unjustifiable; such arrangements would be “irrespective of the considerations, political, philosophical, ideological, racial, ethnic, religious or any other” that may be invoked to justify terrorist actions.
Experience indicates that the main obstacle to dealing with terrorists in ordinary courts was the intimidation of judicial officers and witnesses by the terrorist organisations. Therefore, to deal specifically with terrorism, the required adjudication may take place outside the purview of ordinary criminal law.
In dealing effectively with the terrorists, the transgression of individual rights, at times, would be a necessary compromise that citizens would have to be willing to accept in the interest of durable peace. Counter-terrorism measures would necessitate some loss of liberty and human freedom. Our strategy has to ensure that the security forces have every assistance in their task of bringing terrorists before the court and that the integrity of the legal system is maintained.
While proscription could be a significant feature of our counter-terrorism strategy, we could perhaps allow the lawful use of interception as an investigative tool. We could also make use of evidence gathered through such interception admissible as evidence in courtrooms across the country.
Finally, we cannot possibly countenance a situation where all human rights are reserved for terrorists, while governments dealing with the menace are arraigned continuously on grounds of violation of human rights – real or imaginary. What is desirable is perhaps the need to delineate the parameters that harmonise the defense of constitutional values with respect for human rights.