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O 230906Z SEP 09
FM AMEMBASSY ISLAMABAD
TO SECSTATE WASHDC IMMEDIATE 4968
INFO AMCONSUL KARACHI PRIORITY 
AMCONSUL LAHORE PRIORITY 
AMCONSUL PESHAWAR PRIORITY 
AMEMBASSY KABUL 
AMEMBASSY NEW DELHI 
AMEMBASSY LONDON 
SECDEF WASHINGTON DC
CIA WASHINGTON DC
NSC WASHINGTON DC
JOINT STAFF WASHINGTON DC
CDR USCENTCOM MACDILL AFB FL
USCENTCOM INTEL CEN MACDILL AFB FL

S E C R E T ISLAMABAD 002293


E.O. 12958: DECL: 09/18/2034
TAGS: PHUM PGOV MOPS PTER PK

SUBJECT: ANTI-TERRORISM ACT CHANGES MAY NOT ADDRESS
DETAINEE PROBLEM

REF: A. (A) PESHAWAR 187
     ¶B. (B) ISLAMABAD 2288
     ¶C. (C) ISLAMABAD 2185

Classified By: Ambassador Anne W. Patterson, Reasons 1.4 b and d.

¶1. (S) Summary:  Parliamentary Affairs Minister Babar Awan  informed PolCouns that the changes his office was proposing  to Pakistan's Anti-Terrorism Act were not/not designed to  address the prosecution of those detained in combat  operations.  Instead, they were designed to ease the  prosecution and conviction of terrorist suspects by allowing  introduction of forensic evidence in courts, easing the  introduction of confessions, and increasing security for  judges and witnesses.  Awan stated that new legislation to  establish a separate legal process for dealing with those  detained in combat would be necessary.  Awan was defensive  about the issue of extra-judicial killings of detainees by  Pakistan security forces, repeatedly stating that these were  isolated incidents and not the result of government policy,  but he admitted that lack of confidence in the current  judicial system's ability to deal with these detainees was  likely a contributing factor in the actions of some members  of security forces.  In a separate meeting with Border  Coordinator on the detainee issue, ICRC Delegate Cuttat  concurred that a new legal process for dealing with detainees  was necessary and indicated that ICRC would be willing to  assist, quietly, in the drafting of necessary legislation.
He requested USG support in pressing for ICRC access to  detainees, which post will pursue.  End Summary

¶2. (C) As initial steps to implement a strategy on dealing  with the allegations of Pakistan military involvement in  extra-judicial killings, PolCouns met with Parliamentary  Affairs Minister Babar Awan to discuss GOP intentions  regarding legislative changes to the country's Anti-Terrorism  Act (ATA).  Awan, who confirmed that he has been given the  responsibility for preparing draft legislation and  shepherding it through parliament in October, claimed that  the ATA changes being considered by the federal government  would not/not address the issue of dealing with those  detained in combat.  Minister Awan was either unaware or  dismissive of recommendations forwarded by the NWFP  government for legislative changes that would have helped to  accomplish this goal (ref A).

¶3. (C) Awan informed PolCouns that the legislation currently  under consideration by the government would focus  principally on changing evidentiary standards applicable to  cases in the Anti-Terrorism Courts previously established  under the act.  The Minister claimed that the changes would  permit the introduction of forensic evidence that was  generally in use elsewhere in the world.  It would also relax  standards for the admission of confessions obtained by  foreign and local law enforcement and other government  agencies.  The change in standards, Awan claimed, would ease  the prosecutorial burden in high-profile cases, including the  case against the Mumbai terror attack suspects scheduled to  begin after the upcoming Eid holidays, and make conviction of  suspects more likely.

¶4. (C) Awan claimed that fear of terrorist groups reprisals  was a primary reason both for lack of witnesses in  terrorism trials and for acquittals by trial judges.  Awan  asserted that he intended to include a witness protection  program as part of the new ATA legislation.  This would  enable government security agencies to offer protection and,  in some cases, new identities for those prepared to testify  in terrorism trials.  Awan was equally keen to implement a  program to allow trials of terrorist suspects by unidentified  judges using either one-way video conferencing or one-way  mirrors to conceal the judge's identity from all those  involved in the case.  Awan referenced a similar, successful  program in Colombia that was used in narco-trials.

¶5. (C) PolCouns expressed concern to Awan that nothing  contained in his proposals would facilitate the successful  trial of suspects detained during combat in Malakand or the  Federally Administered Tribal Areas (FATA).  Awan agreed that  this was the case, but claimed that the ATA process could not  be reformed to make it adequate for use in such cases.
PolCouns inquired whether the GOP was planning a separate  administrative process for dealing with such detainees.  Awan  stated that this was a serious and growing problem but that  the government had not yet decided how to address it.  The  Minister shared that he would prefer to introduce new  legislation in the Parliament that would establish a separate  judicial process for dealing with combat detainees.  Awan  stressed that government transparency would be key in getting  broad societal buy-in for such a program.

¶6. (C) PolCouns expressed USG concerns that the detainee  problem could be a factor in extra-judicial killings by  security forces that have been alleged in the Malakand  Division operations.  Awan responded that he considered the  New York Times article on the issue to be highly exaggerated  and intended to write a formal government response denying  its claims.  Awan conceded that some revenge killings of  terrorists by elements of the security forces had likely  taken place, but that prevention of such killings was  exceptionally difficult given cultural constraints in the  region and were not a part of government policy.  Awan stated  that he sympathized with security forces, who feared that if  detainees were charged under the current system, they would  be released by the courts.  Awan surmised that this fear  could well be a factor in the actions of some individuals but  reiterated that this was not government policy and that those  killed represented a serious danger to society.

¶7. (S) Border Coordinator met separately with International  Committee of the Red Cross (ICRC) Delegate Pascal Cuttat.
Cuttat agreed with post's assessment that the inability to  prosecute detainees effectively through the justice system  was a contributing factor in security forces extra-judicial  killings of detainees.  Cuttat concurred with post's  suggestion to assist the GOP in drafting new legislation or a  presidential ordinance to deal with detentions-in-combat and  stated that ICRC would be willing to participate in a low-key  way in such an exercise.  Cuttat requested USG assistance in  obtaining ICRC access to detainees, stating that such access  would not only help diminish human rights abuses, but would  also be a positive step that the GoP could take to show that  it is taking the accusations of extra-judicial killings  seriously.  Post will pursue this request with the Pakistani  government.

¶8. (S) Comment:  Minister Awan's lack of knowledge or  dismissal of NWFP government proposals to change the ATA  (ref A) is disappointing.  While his focus on evidentiary  standards and protection for judges and witnesses will  improve the system and increase convictions in ordinary  terrorism trials, it will do little to address the growing  detainee issue.  Post will pursue with the government the  possibility of broadening ATA changes to improve its  utility as a tool for prosecuting some of those detained in  combat, while simultaneously continuing to encourage the GOP,  in collaboration with international organizations and donors,  to develop a credible legal process for dealing with combat  detainees.  Post will equally pursue the ICRC's request for  access to detainees.  End Comment
PATTERSON