The recent arrest of CIA contractor Raymond Davis in Pakistan over the killing of two Pakistani nationals during a shootout in Lahore has also shed light on the role of the Pakistani intelligence agencies, especially the Inter-Services Intelligence (ISI), perhaps the most powerful Pakistani institution that rules Pakistan and dictates Pakistan's foreign policy in Afghanistan and in relation to India and the U.S.
Raymond Davis's arrest came amid a series of recent counterattacks launched by the ISI against CIA officials in Pakistan. In recent months, Jonathan Banks, the CIA station chief in Pakistan, and Elizabeth Rudd, an official of the U.S. Consulate in Peshawar, were forced to leave Pakistan after their identities were leaked to the press. Lt.-Gen. Shuja Pasha, the chief of ISI, and several Pakistani military officers and militants have been summoned by a court in New York for their role in the 2008 Mumbai terror attacks in which several U.S. citizens were killed. Pakistan fears that the New York court could declare the ISI a terrorist organization.
The ISI has emerged as the most powerful institution in Pakistani governance, politics and policymaking. However, not much is known about the extent of its role in Pakistan. The Supreme Court of Pakistan is hearing cases of "missing persons" in which Pakistani intelligence agencies, including the ISI, have been made respondents in an unprecedented case which alleges that the agencies abducted hundreds of Baluchi nationalist political leaders as well as Islamic militants over the past decade.
As the row over the Raymond Davis issue continues, it should be noted that General Ashfaq Pervez Kayani is the first ISI chief to become the chief of Pakistan Army, and therefore he now is the most powerful person in Pakistan. In a measure of his power, the civilian government in Islamabad, which came to power in 2008, was forced to extend General Kayani's tenure for another full, three-year term. General Kayani (right in the above image) was appointed by General Pervez Musharraf to succeed him as army chief.
Recently, the Pakistani newspaper Dawn published two reports examining the complications in bringing the Pakistani intelligence agencies under the ambit of the law. Both reports were written for the Herald magazine of the Dawn media group and reproduced on the Dawn website in view of their relevance.
The following are excerpts from the reports, "Intelligence Questions"[1] and "Revealing the Secret":[2]
"Intelligence Questions"
Former Intelligence Official Says "IB Was Relegated to Secondary Status, and the Army-Dominated Intelligence Agencies, Particularly the ISI, Assumed a Pre-Eminent Role"
"The ostensibly visible presence of external threat in the initial years of Pakistan created enough space for intelligence agencies to work above the law… 'As long as you needed an intelligence agency to meet the intelligence requirement of the army and to meet the requirements of guarding against external security threats, you did not need a law,' says Justice (retired) Tariq Mehmood, also a senior lawyer and human rights activist.
"The state used external threat as a powerful tool to silence any criticism of the functioning of intelligence agencies. Legal and intelligence experts, however, point out that the criticism of the agencies exists not because of their activities to neutralize foreign threats but due to their constant meddling in the country's internal affairs. 'As long as they were dealing with external intelligence, it was fine. The controversy started when they expanded their role into domestic politics,' says Dr. Hasan-Askari Rizvi, an analyst based in Lahore.
"While many civilian critics blame [former prime minister] Zulfikar Ali Bhutto for setting the precedent of agencies interfering in domestic politics, a former intelligence chief tells the Herald it was more so during the military regime of General Ziaul Haq. The war in Afghanistan in 1970s-80s, in which Zia and his American and Saudi backers were deeply involved, 'changed the nature of intelligence gathering in Pakistan,' he says. Foreign funding, an extended network of contacts across Pakistan to mobilize supports for Afghan war, and an eminent role in Afghanistan, allowed the Inter-Services Intelligence (ISI) to increase its strength, powers and functions phenomenally, says Dr. Rizvi. 'All this together allowed the intelligence establishment to expand its role into domestic politics,' he adds.
"Until that point, the Intelligence Bureau (IB) and Military Intelligence (MI) were the main intelligence-gathering institutions, in the civilian and military spheres respectively. But during the Zia era, 'IB was relegated to secondary status and the army-dominated intelligence agencies, particularly the ISI, assumed a pre-eminent role,' an ex-intelligence boss says."
"Pakistan's Superior Courts… Informally Granted a Kind of Immunity to Intelligence Agencies, Insofar as That They were Never Made Respondents in Cases Dealing with the Detention of Individuals by Them"
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"The expansion of the role of intelligence agencies into domestic politics coincided with growing skepticism among political class and legal experts towards their functioning. The issues of some kind of a civilian control over them and the need for a law to govern their working became hot topics of debate, says Justice (retired) Mehmood.
"But voices raising these issues never developed into a potent force, mainly because the military has been ruling the country both directly and indirectly, he says. 'In direct military rule [i.e. under martial law], the office of army chief and the chief executive of Pakistan come together in one person. This allows intelligence agencies to escape the need to have a legal cover and face accountability by claiming that they are already answerable to the highest authority in the country,' he observes. The civilian governments that follow the military ones are always so weak that they fear raising the issue and annoy the army, he adds.
"Pakistan's superior courts have also done little to change this state of affairs. Some legal experts and human rights activists claim that the courts informally granted a kind of immunity to intelligence agencies insofar as that they were never made respondents in cases dealing with the detention of individuals by them. A senior lawyer cites previous judgments in which superior courts avoided reporting facts of cases registered under the Security of Pakistan Act and the Pakistan Army Act, in an apparent attempt to keep the working of the intelligence agencies a secret…"
"Revealing the Secret"
"[The] Idea of Bringing the Intelligence Agency [ISI] Within the Ambit of Law Did Not Appear To the [Gilani] Government as a Move in the Right Direction"
"Some time in 2008, senior officials of Pakistan's premier civilian intelligence agency, the Intelligence Bureau (IB), were asking themselves a basic question: Should IB retain the power of arrest or forego it? The debate on the issue continued for a few months before it was concluded that the primary task of the agency was to gather actionable intelligence and that it should give up its powers of arrest; the police should handle arrests on behalf of IB.
"This coincided with another internal exercise within IB to draft a law for providing legal basis to its working. 'The idea was to put in some legal constraints, considering the human rights issues that had recently permeated the national discourse,' says a former senior official of IB involved in the exercise. The draft law, for instance, called for bringing the pervasive telephone tapping by intelligence agencies under judicial check. 'We proposed that telephone taping would be allowed only under a judicial order and not under an executive order,' he adds.
"The time was ripe for such a change. A democratically-elected government had just taken office in Islamabad after nine years of military rule. The political elite had developed a near consensus… to curtail the influence and powers of intelligence agencies. What further reinforced this atmosphere of change was that the civilian government appointed Shoaib Suddle as IB head, the first non-military man to hold the post in nearly two decades.
"The draft law was to be shared with senior officials of the newly-formed government but that proved to be a non-starter. '[The draft] needed the approval of the president and the prime minister to be tabled before the parliament,' recounts an Islamabad-based retired official who was part of the exercise. 'We discussed this with some senior officials of the government. They agreed with the basic idea of the draft but then did not take it seriously.'
"After receiving a cold response from the government, IB bosses did not press any further. Apparently the idea of bringing the intelligence agency within the ambit of law did not appear to the government [of Prime Minister Yousuf Raza Gilani] as a move in the right direction. 'The main reason was lack of understanding because nobody in the government or the intelligence establishment has an inkling of how effective a check a legislative act can prove to be,' comments a former intelligence boss…"
"Pakistan is One of the Few Democracies… Where Intelligence Agencies Enjoy the Ignominious Distinction of Functioning Without Any Legal Document Supporting Their Creation or Functioning"
"[In] July 2008, the Pakistan People's Party government decided to put the Inter-Services Intelligence (ISI) under the interior ministry, and issued an executive order placing it under the administrative, financial and operational control of the ministry. But intelligence officials point out that it was not a move aimed at ensuring that the agencies worked as per some law. 'It indicated the government's attempt to bring them under its political control,' says a former intelligence boss. The order was reversed within hours, the government said, to dispel the impression 'that there were differences between the civilian government and the army.'
"Legal experts are of the firm view that defining the jurisdiction of intelligence agencies through a legislative act is a much wider issue than simply putting them under one or the other ministry. 'Many problems in the present functioning of the spy agencies arose simply because there is no law defining their jurisdiction,' opines a legal expert. But the withdrawal of the order to bring the agencies under civilian control strengthened the impression that the government had failed to depart from the tradition of conducting 'intelligence business' without a law that could define the jurisdiction of the agencies concerned.
"Has anyone seen the executive orders that created the intelligence agencies and that govern their working? 'Nobody has,' says Dr. Hasan-Askari Rizvi, a historian of civil-military relations in Pakistan. In the absence of any information about them, even the most ardent scholars of Pakistan's political and security history are only making guesses on what they could be.
"Indeed, Pakistan is one of the few democracies in the world where intelligence agencies enjoy the ignominious distinction of functioning without any legal document supporting their creation or functioning. No less a person than the highest law officer of the state, Attorney-General Maulvi Anwarul Haq, informed the Supreme Court in November 2010 that there exists no such legal instrument.
"But over the years intelligence agencies have invoked many laws to justify rounding up, investigating and imprisoning people they deem anti-state elements. These include the Security of Pakistan Act 1952, Pakistan Army Act 1952, Defence of Pakistan Act and Prevention of Anti-National Activities Act 1972. None of these laws, however, lays down what powers the spy agencies have and how best should they use those powers. 'A law to define the jurisdiction of the intelligence services is missing from the statute books,' says Justice (retired) Tariq Mehmood, a senior lawyer, former high court judge and a human rights campaigner."
Pakistani Security Expert: "The ISI Was Created for External Intelligenc – But General Ziaul Haq Used It for Domestic Intelligence-Gathering"
"In the absence of a law it becomes easy for the rulers to arbitrarily expand the role of the agencies into domestic politics without having to bother about any legal authorization. For instance, 'the ISI was created for external intelligence, but General Ziaul Haq used it for domestic intelligence-gathering. Similarly, General (retired) Pervez Musharraf used the Military Intelligence [MI] for intelligence gathering on domestic politics,' says Dr. Rizvi.
"The lack of any legal or parliamentary oversight for the intelligence agencies creates problems of governance that in the past have developed into full-blown crises. For instance, questions about the loyalties of Pakistan's premier intelligence agency, ISI, have remained unanswered over the years and on more than one occasion have led to tensions between the civilian government and the military.
"At least twice in the recent past has this flared up with disastrous consequences for democracy in Pakistan. When Benazir Bhutto appointed a retired army officer, Lieutenant-General (retd) Shamsud Rahman Kallu, as ISI chief during her first tenure as prime minister, the decision led to tensions between her and the then Chief of the Army Staff General Aslam Beg. Similarly, Lieutenant-General Ziauddin Butt, who headed ISI during Nawaz Sharif's second term in power, was one of the reasons why tensions between the prime minister and the army chief started and persisted, culminating in Sharif's removal from power [by General Musharraf in 1999]…"
"There is also no dearth of voices opposing any move to impose legal constraints on the functioning of intelligence agencies. Their logic is simple: the very nature of intelligence gathering militates against the concept of imposing legal constraints on the functioning of intelligence organizations. 'The nature of their work is such that they have to work in deviation of the law and they have to keep it secret as well,' says former ISI chief General (retired) Hamid Gul…"
"A former head of IB, however, is not convinced. 'The question we need to ask ourselves is what exactly our intelligence agencies are doing for which they want legal exception,' he says…"
Endnotes:
[1] www.dawn.com (Pakistan), January 24, 2011. The text of the reports has been lightly edited for clarity.
[2] www.dawn.com (Pakistan), January 24, 2011.
