Learning lessons from India: the recent history of antiterrorist legislation on the subcontinent.

• Author: Mohapatra, Manas

1. INTRODUCTION

   On October 26, 2001, one month after the most deadly terrorist attack to ever be carried out on U.S. soil, (1) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (2) became law. Prior to the enactment of the PATRIOT Act, the United States had minimal legislation specifically targeted at terrorist activity. (3) However, two years after the passage of the PATRIOT Act, and despite heavy criticisms and denouncements from civil libertarian groups (4) and over 220 city council resolutions opposing the Act, (5) the Department of Justice proposed a new bill, the Domestic Security Enhancement Act of 2003, nicknamed PATRIOT Act II by some, (6) which would further expand the powers of the federal government and law enforcement agencies in the ongoing War on Terror. The government's proposal of PATRIOT Act II follows the course of action of numerous other countries that have responded to terrorist attacks between their own borders by passing more and more criminal legislation.

   On December 13th, 2001, halfway across the world from the mourning United States, a group of heavily armed militants attempted to storm India's Parliament in New Delhi, triggering off a firefight in which five of the attackers and fourteen innocents were killed. (7) Security forces immediately sealed off the red sandstone parliament building where, ironically, discussions were to have begun on a new antiterrorist bill. (8) The bill, the Prevention of Terrorism Act (POTA), which originally had failed to get Parliamentary approval when discussed in 2000, was passed soon after in a rare joint session of both Houses of the Indian Parliament. (9)

   With the original PATRIOT Act set to expire on December 31, 2005, a debate regarding the effectiveness of the legislation currently rages. (10) The efficacy of the counter-terrorist response in the United States has, due to the relative newness of these domestic attacks, been largely untested. In contrast, India's legal system, operating under a democratic system governed by a constitution heavily influenced by the United States, (11) has been responding to recurrent terrorist activity within its borders from independence in 1947 through to the present day. (12) The Indian experience has shown that with each new piece of legislation aimed at fighting terrorism comes a similar pattern of abuses. India's antiterrorist laws have consistently been used beyond their originally prescribed scope to bypass the normal rules and safeguards afforded to criminal defendants under both the Indian Constitution and the Code of Criminal Procedure.

   This comment will consider the Indian experience in an effort to learn lessons from a legal system that has had to deal with the dreadful reality of domestic acts of terrorism and determine whether the same legislative overreach of antiterrorist legislation is beginning in the United States. Part II of the comment will examine instances in the United States where criminal procedure is bypassed in favor of new methods based on the new threat of terrorism. It will also examine cases that could normally be handled by the criminal justice system, but have, questionably, been handled under provisions of new antiterrorist legislation. With this in mind, this comment will look to the Indian experience in an attempt to gain insight from the fifty years of experience the Indian legal system has in grappling with the unique challenges terrorism poses to domestic criminal law. Part III will analyze why India's experience may be one that the U.S. legal system may learn from and argue that based on the history of India's Constitution and the particular nature of the recent terrorist activity within its borders, India does serve as a good point of comparison for the United States. The comment will next analyze the history of terrorism in post-independence India and the government's various responses. Part IV will examine reports of abuse of antiterrorist legislation and look at how these abuses have changed or developed with each new piece of national security legislation. Having outlined this history, Part V will then analyze the pattern of constant overreach of India's national security legislation and examine instances of overreach in the United States. The comment will conclude with a brief examination of lessons the United States may learn from India when looking at the legal complexities in the War on Terror.

2. NATIONAL SECURITY LEGISLATION "CREEP" IN THE UNITED STATES POST-9/11

   As is well known, the major piece of legislation passed in the wake of the September 11th terrorist attacks was the USA PATRIOT Act. (13) Passed with little debate in the highly tense and emotional time period immediately following the attacks, the PATRIOT Act was ostensibly the government's reaction to protect the United States from any further terrorist activity. (14) Despite the public face given to the act by its supporters, the purposes of the PATRIOT Act were far broader than just battling terrorism. (15) Many of the provisions endowed law enforcement agencies in general with a greater amount of freedom in surveillance and investigation. (16) Included in the act were provisions that

   created new record-keeping and reporting measures on financial institutions, provided for greater information-sharing among federal intelligence and criminal justice officials; enable[d] a special intelligence court to authorize the collection by law enforcement authorities of data from roving wiretaps; enlarge[d] the availability of information from grand jury investigations; restricts access to biological and chemical agents and criminalizes their possession for other than peaceful purposes; relaxe[d] rules for gaining access to electronic communications and student records by subpoena; provides for limited detention of certified terrorists; and facilitate[d] governmental eavesdropping and so-called "sneak and peek" searches of private premises. (17) As opposed to specifically targeting gaps in the way the criminal justice system currently handled the menace of terrorism, the expansion of the powers of general law enforcement investigatory tools seemed to dominate the provisions of the PATRIOT Act. (18) While initially used in probes related to battling terrorism, the use of the PATRIOT Act has begun to creep further into general law enforcement investigations. (19) For example, in Las Vegas, federal authorities used the money laundering sections within the PATRIOT Act to access the financial information of strip club owner Michael Galardi and "numerous other politicians" in a public corruption probe. (20) While some politicians stated that they were unaware that the Act could be used in non-terrorist related investigations, a spokesman for the Justice Department replied, "I think probably a lot of members (of Congress) were only interested in the anti-terrorism measures ... but when the Judiciary Committee sat down, both Republicans and Democrats, they obviously discussed the applications, that certain provisions could be used in regular criminal investigations." (21)

   While the PATRIOT Act had ostensibly been passed directly in response to September 11th, its provisions were a wish list that law enforcement officials wanted to apply beyond the scope of terrorist-related activities long before the attacks. (22) However, it has become clear to some that a strictly law enforcement approach to terrorism is inadequate, and in order to aid the besieged civil authorities, some formal military action is necessary. (23) Consequentially, in addition to the PATRIOT Act, Congress passed Public Law 107-40, which authorized the President to use "all necessary and appropriate force ... to prevent any future acts of international terrorism against the United States." (24) This Congressional declaration of war was the basis of the post-September-11th military actions taken in Afghanistan, but also had effects domestically. A portion of the action taken on behalf of the Executive to prevent future acts of terrorism has overlapped with traditional law enforcement duties as the Office of the President has begun designating suspected members of Al-Qaeda as "unlawful enemy combatants" and placing them in military detention. (25)

   The power of the Executive to label a U.S. citizen an "unlawful enemy combatant" was upheld by the Supreme Court in the World War II case Ex Parte Quirin. (26) During the military operations in Afghanistan, a handful of U.S. citizens were found to have been taking part in the combat against U.S. forces, and upon their discovery in military detention, were labeled "unlawful enemy combatants." (27)

   Although the Executive has argued against the judiciary's right to do so, since September 11th the Courts have reserved their right to scrutinize the designation of an enemy combatant. (28) In Rasul v. Bush, the U.S. government argued that fourteen individuals, who had been detained in the military hostilities in Afghanistan, had no right to challenge the grounds of their detention in a U.S. court. (29) The Supreme Court, with Justice Stevens writing the majority decision, rejected the argument, noting:

   [p]etitioners' allegations--that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing--unquestionably describe custody in violation of the Constitution or laws or treaties of the United States. (30) The Court remanded the cases to the District Court to consider the detainees' claims on the merits. (31)

   One of the most recent cases to involve stretching the "unlawful enemy combatant" designation is the one of Jose Padilla. (32) Padilla is a U.S...