Indian Defence Review

In a letter to the Chief Ministers, who have expressed their reservations over certain features of the proposed National Counter-Terrorism Centre (NCTC), ShriP.Chidambaram, the Union Home Minister, has stated, inter alia as follows: “Before we take the next steps, I have asked the Home Secretary to call a meeting of the Directors General of Police and the Heads of the Anti-Terrorist Organisations/Forces of the State Governments and discuss in detail the scope and functions of the NCTC.”

This tends to confirm the claims of Ms.Mamata Banerjee, the Chief Minister of West Bengal, who had met the Prime Minister at New Delhi on this subject that the Government has decided to withhold further follow-up action on the NCTC till there were prior consultations with the States. The Government of India needs to be complimented for not standing on false prestige and agreeing to hold consultations with the States “before we take the next steps”

With his letter, Shri Chidambaram has enclosed a note giving the background to the proposed creation of the NCTC and its salient features. The note states inter alia: “A body mandated to deal with counter terrorism must have, in certain circumstances, an operational capability. This is true of all counter terrorism bodies in the world. When engaged in counter terrorism operations, the officers must have the power to arrest and the power to search which are the bare minimum powers that would be necessary. Besides, the powers conferred under section 43A must be read with the duty under section 43B to produce the person or article without unnecessary delay before the nearest police station (which will be under the State Government), and the SHO of the Police Station will take further action in accordance with the provisions of the CrPC.”

The claim made in the summary regarding the position in other countries does not seem to be factually correct. In the US, the NCTC,created under law in 2004, as an independent institution to function under the supervision of Director, National Intelligence, has not been given any executive powers. Its charter says: “NCTC assigns roles and responsibilities to departments and agencies as part of its strategic planning duties, but NCTC does not direct the execution of any resulting operations.”

In the UK, the powers of arrest are still exclusively vested in the police. The Secret Service, known as MI-5, which is responsible for secret intelligence collection and covert action against terrorism, does not have these powers.A paper on Counter-Terrorism Strategy submitted by the British Government to their Parliament in July 2006 says as follows: “Covert operational counter-terrorist activity in the United Kingdom is conducted by the Security Service in close collaboration with police forces across the country and the Anti-Terrorist Branch of the Metropolitan Police. The police are responsible for taking executiveaction, such as arrests, and conducting the investigation against those suspected of involvementin terrorism. The SIS and GCHQ, in collaboration with intelligence and security partnersoverseas, operate covertly in support of the Security Service to disrupt terrorist threat.”

SIS is the Secret Intelligence Service, also known as MI-6, which is the UK’s external intelligence agency. GCHQ is the General Communications Headquarters which is the UK’s TECHINT agency.It is the UK’s equivalent of the USA’s National Security Agency and our National Technical Research Organisation (NTRO).

The Multi-Agency Centre (MAC), created in pursuance of the recommendation of the Task Force set up by the AtalBehari Vajpayee Government in 2000 under the chairmanship of ShriG.C.Saxena, former head of the R&AW, has tasks of joint analysis, joint assessment, joint identification of follow-up action required and assigning responsibilities for follow-up action. It will get its follow-up operations executed by other empowered agencies and the State Police. It has no executive powers of its own.

The NCTC is proposed to be given executive powers of follow-up action on its own on the basis of its assessment and informing the State Police thereafter. At present, the MAC alerts the State Police and suggests arrest of a suspect by them.In future, the NCTC can arrest a suspect on its own, hand him over to the police and direct it to start an investigation.

This is apparently meant to deal with contingencies where the State Police drag their feet in making an arrest— for example a BJP Government in respect of a suspected Hindu terrorist or some other Government in respect of a Muslim terrorist. The MAC is at present without powers to deal with such instances. The NCTC can, in future, arrest the suspect without alerting the police, take his house search, hand him over to the police and then direct it to start an investigation.

This is a power with serious implications for misuse, with the NCTC, taking its orders from the Intelligence Bureau, arresting a person in a State without keeping the Police in the picture and then confronting the Police with a fait accompli.

In other countries, the NCTCs or their equivalent came into being as part of a detailed National Counter-Terrorism Strategy, which was formulated after extensive political consultations and debate in the Parliament. In India, 41 years after terrorism made its appearance and over three years after the 26/11 terrorist strikes in Mumbai, we still do not have a comprehensive counter-terrorism strategy drawn up in consultation with the political parties and States.

Without such a strategy, attempts are being made to smuggle through a mechanism with executive powers to enable the IB to make arrests in certain cases on its ownthrough the NCTC without the prior knowledge of the States.

A note on the NCTC of the US taken from its website is given on page No.2.

USA’S NCTC Mechanism

The National Counterterrorism Center (NCTC) was established by Presidential Executive Order 13354 in August 2004, and codified by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). NCTC implements a key recommendation of the 9/11 Commission: “Breaking the older mold of national government organizations, this NCTC should be a center for joint operational planning and joint intelligence, staffed by personnel from the various agencies.”

The Director of NCTC is a Deputy Secretary-equivalent with a unique, dual line of reporting: (1) to the President regarding Executive branch-wide counterterrorism planning, and (2) to the Director of National Intelligence (DNI) regarding intelligence matters. NCTC follows the policy direction of the President, and National and Homeland Security Councils.

NCTC is staffed by more than 500 personnel from more than 16 departments and agencies (approximately 60 percent of whom are detailed to NCTC). NCTC is organizationally part of the ODNI.

NCTC’s core missions are derived primarily from IRTPA, as supplemented by other statutes, Executive Orders, and Intelligence Community Directives. NCTC’s mission statement succinctly summarizes its key responsibilities and value-added contributions: “Lead our nation’s effort to combat terrorism at home and abroad by analyzing the threat, sharing that information with our partners, and integrating all instruments of national power to ensure unity of effort.”