The advance of technology and the increasing dependence on technical intelligence (TECHINT) for the maintenance of internal security have given rise to new ethical questions to which no satisfactory answers have been found anywhere in the world.
2. Modern technology has strengthened the capability of the intelligence agencies for intelligence collection.At the same time, it has placed at the disposal of criminal and anti-national elements better means of evading detection of their activities. The public, the legislature and the judiciary have been reluctant to strenghten the capability of the agencies to neutralise the advantages thus secured by these elements.
3.One may cite one example of the kind of problems now faced by intelligence and investigative agencies operating internally. Public opinion understands the need for the agencies--internal and external---- to intercept the communications of the Armed Forces, the intelligence agencies and the diplomatic missions of foreign countries not well disposed towards us and of their nationals, who might be operating against our national interest, either from foreign or our territory. But, problems arise when there is a need to intercept the communications of one's own citizens, who might be acting against national interest.
4. Laws in most democratic societies normally allow the collection of communications intelligence (COMINT) only on citizens already identified as possible threats to national security on the basis of specific intelligence recorded in writing. In some countries, the required authorisation is given by officials designated by law and in others by the Attorney-General or by a court.
5. A general principle followed universally is that such authorisation should be of specified duration and against a specified individual, residing at a specified address and using a specified telephone or fax number or E-mail address. In recent years, criminal and anti-national elements have started persuading third parties, who may or may not be aware of their background, to let them use their postal and E-mail addresses and telephone and fax numbers for communication purposes.The mushrooming of public telephone booths and cyber cafes has also facilitated the use of evasion techniques by such elements. Every time such a practice comes to mnotice, the agencies had to seek a fresh authorisation for intercepting the communications of the third parties, public telephone booths and cyber cafes, which takes time and consequently results in a break in the continuity of intelligence collection
6.Before the 9/11 terrorist strikes in the US homeland, the Clinton Administration tried unsuccessfully to persuade the Congress to modify the law in order to facilitate the authorisation of the interception of the communications of a named suspect, whatever be the telephone and fax number, postal and E-mail address, public telephone booths and cyber cafes used by him or her. Public and Congressional opinion and civil rights groups were unwilling to increase the clandestine interception powers of the agencies. After 9/11, this opposition has relented and one understands that the agencies have been given the additional powers they wanted.
7. The agencies also need a capability for detecting and identifying criminal and anti-national elements that might have escaped detection through human intelligence (HUMINT). This might call for random, but not indiscriminate monitoring of communications that could result in the interception of messages having a bearing on ordinary crime, terrorism, narcotics smuggling, espionage etc. However, public opinion and lawmakers in democratic societies oppose random sweeps of communications due to fears of their misuse for partisan political purposes and on grounds of violation of privacy.
8.Algerian terrorists carried out a series of explosions in France in the 1990s. They were using the Internet for communications. However, the London-based leader of one of the terrorist groups, who had difficulty in operating a computer, used a telephone to convey oral orders for an explosion. During a random sweep of telephone calls, a French agency stumbled upon this call and the police was thus able to arrest the group and prevent any further explosions. The agency's action in carrying out a random sweep of telephone calls was a clear violation of the law, but there was no public outcry against it because it saved the lives of dozens of innocent civilians.
9. The importance of random COMINT sweeps for detecting and neutralising the sleeper cells of terrorist organisations has been increasingly felt since 9/11. Due to the difficulties faced by HUMINT agencies in penetrating terrorist organisations, random sweeps help the agencies in detecting a hitherto unsuspected terrorist cell and neutralising it before it can organise an act of terrorism. There has been increasing pressure on Governments from intelligence agencies to let them use random sweeps for detecting sleeper cells.
10. Random sweeps may and often do result in the collection of intelligence regarding terrorist cells and their plans. But, they also collect a lot of other information of no value to the agencies and the police. Fears that some of such information could be misused by the political leadership for partisan purposes come in the way of law-makers legitimising random sweeps. George Bush wanted to give his agencies the additional powers needed for random sweeps, but the Congress thwarted it. There were allegations that in spite of this he used his discretionary powers to authorise random sweeps on a case by case basis to neutralise sleeper cells operating in the US Homeland.
11. It is learnt that it was one such random sweep that made the Federal Bureau of Investigation (FBI) realise that Ilyas Kashmiri, the Pakistani close to Al Qaeda, was trying to use David Coleman Headley of the Chicago cell of the Lashkar-e-Toiba (LET), for mounting an attack on the office of the Danish newspaper in Copenhagen which had published some cartoons depicting Prophet Mohammad in 2005. The entire investigation started with the interception of an Internet remark by Headley expressing his anger against the cartoonist and calling for an attack on him
12. In India, which is next door to the world's epicentre of terrorism in Pakistan and which has a large number of sleeper cells of Pakistani and Indian jihadi organisations waiting to strike in different parts of the country, the importance of adequate technical capability to detect and neutralise them and adequate powers to use that capability cannot be overemphasised. At the same time, fears of misuse of such capability and the powers to use it are legitimate.
13. How to enable random COMINT sweeps by the agencies in select cases and how to prevent the misuse of the intercepts with no value for counter-terrorism gathered by the agencies for partisan political purposes are questions which have not received the attention they deserve. Post-9/11, there has been a mushrooming of TECHINT capabilities in all countries facing the threat of terrorism. At the same time, attempts have been made to introduce safeguards against misuse of the capabilities.
14.In India too, post 9/11, there has been a mushrooming of TECHINT capabilities in different agencies----- some coming under the Ministry of Home Affairs, some under the Prime Minister in the Cabinet Secretariat and some under the Defence Minister.No attempt has been made to ensure that these capabilities are used in a co-ordinated manner under a common supervisory mechanism to prevent their misuse. Should random sweeps be allowed? Under what circumstances and under whose authority? Should the Parliament have a say in evolving the safeguards against possible misuse just as the Parliaments in many other countries have? These questions need to be debated in open in the Parliament and across the media and appropriate decisions taken which could be used as yardsticks for public and political opinion to decide for itself that the newly-created capabilities are being used in national interest only.
15.The articles published by the "Outlook" on the functioning of the National Technical Research Organisation would hopefully be the starting point of the much-delayed and much-needed debate on this subject. Public debate on sensitive intelligence matters such as this----if carried on with balance and restraint--- will not be harmful to national security. It will make our fight against threats to national security more effective and elicit greater public support for the fight. ( 25-4-2010)
( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-Mail: email@example.com )