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Why the leaked cables have low evidential value

Last updated on: March 18, 2011 12:43 IST

Why the leaked cables have low evidential value

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Senior analyst B Raman explains why he feels that the leaked WikiLeaks cable throwing allegations of bribery on the ruling Congress to seal the 2008 trust vote in its favour may have high political embarrassment value, but low evidential value.

This article is based on my reading of the report on the subject carried by The Hindu on March 17, the analysis by Sheela Bhatt, Delhi-based editor of rediff.com, carried by rediff.com the same day and the scintillating debate on the subject anchored by Barkha Dutt from 9 to 10.30 pm, again on the same day.

The whole controversy on the subject has originated from a cable sent to the United States state department on July 17, 2008, by Steven White, charge d'affaires in the US embassy in New Delhi, about a visit paid to Satish Sharma, a Congress member of Parliament, on the previous day by the embassy's political counsellor.

The cable of the CDA does not identify the political counsellor by name. The cable also has a reference to the interactions of 'an embassy staff member' with Nachiketa Kapur, described as Sharma's political aide, on July 16.

This staff member has not been identified either. It is not clear whether the political counsellor and the embassy staff member are the one and the same person.

To establish the evidential value of the cable in a court of law, one has to prove the authenticity of the cable and of the summary of the discussions of the political counsellor with Sharma and the staff member with Kapur.

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Image: Video grab shows Opposition MPs waving currency notes in the Lok Sabha during the 2008 trust vote

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US hasn't yet admitted that WikiLeaks is genuine

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There are only two sources who can prove the authenticity of the cable -- the CDA who initiated it and the state department, which received it.

Even though the US government has initiated legal action against Julian Assange, who has been leaking the WikiLeaks cables, it has not so far admitted in public that the thousands of cables being leaked by him are genuine.

Unless it so admits, the cable referred to by The Hindu will have very limited value as documentary evidence in a court of law.

The CDA is not describing in the cable what transpired at his own meeting with Sharma and his aide. He is describing what his political counsellor and embassy staff member told him about their interactions with Sharma and Kapur the previous day.


Image: WikiLeaks editor-in-chief Julian Assange
Photographs: Reuters
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This cable strengthens suspicions, but doesn't prove them

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The authenticity of the contents of the cable can be certified in a court of law only by these three persons. Since neither the state department nor the three officers of the US embassy can be forced to testify on the subject, any inquiry into the violation of the law (alleged payment of bribe to some members of Parliament by the Congress to influence voting in the Lok Sabha) has to find other ways of establishing the authenticity of the details as stated in the cable.

This is going to be very difficult since none of the persons, who allegedly received the bribe, will admit it and Sharma and Kapur will not admit that they paid bribes.

Even earlier, there were strong suspicions that bribes had allegedly been paid by the Congress to some members to influence their voting after the debate on the no-confidence motion. This cable strengthens those suspicions without being able to prove them.

Hence, my assessment is that the cable will have high political embarrassment value and low evidential value.


Image: Nachiketa Kapur, described as Cong MP Satish Sharma's political aide
Photographs: Courtesy: wwwsunitakapoor.blogspot.com
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A damning indictment of US's political morality

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There is an intriguing aspect of the cable to which attention has been drawn by Sheela Bhatt -- namely, some members of the staff of the US embassy, including the CDA, had become aware that a serious offence (alleged paying of bribes to influence voting) was about to be committed, but did not consider it necessary to alert the ministry of external affairs of what they were told in order to prevent the commission of the crime.

Under the law, everyone -- including diplomats -- has an obligation to alert the authorities concerned if he or she comes to know of information indicating plans for the commission of a crime.

The US diplomats did not carry out this obligation. They just reported to the state department and did nothing more. They even subsequently invited Kapur allegedly on an expenses-paid trip to the US.

Sheela Bhatt says: 'It is astounding to see that the Americans were witness to the corrupt drama of the buying of MPs in Parliament. The last thing on their mind was the value of democracy so finely inscribed in the American constitution. Despite being in the know of the United Progressive Alliance government's corruption to buy votes, the Americans sent Nachiketa Kapur on an all-expense-paid junket to the US."

This is a damning indictment of the political morality of the US with which many would be in agreement. Under the US law, payment of bribes by the US government or US companies to promote US interests abroad is banned.

In this case, the alleged bribe was not paid from the US tax-payers' money. Nor was it paid by the Congress directly to promote US interests, but an indirect beneficiary will be US nuclear manufacturers, who would get contracts.


Image: PM Manmohan Singh speaks with US President Barack Obama at a conference in Washington, DC
Photographs: Reuters
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Was the bribe paid so that re-imbursement could be later claimed?

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Thus, an illegality was being committed that could ultimately benefit some US companies. Three members of the staff of the US embassy came to know of it, but it did not occur to them to alert the Indian authorities.

Nor did the state department do so. One can only draw attention to this. Nothing more can be done.

There is another aspect of the affair. Kapur allegedly showed the staff member of the US embassy the boxes in which the money to be paid as bribe was kept.

Why did he do so? Was some of the money to be re-imbursed later by US sources? Was he trying to convince the US staff member that money was in fact paid so that re-imbursement could be later claimed?



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Barkha doesn't stoop to score points

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A last personal observation: I have never made a secret of my admiration for Barkha Dutt and the esteem in which I hold her for her professional and personal qualities, even though I had met her in flesh and blood only once, in 2008 in New Delhi.

My admiration and esteem for her have gone up further after watching the dignity and poise with which she has been covering this subject without stooping to score points against other TV channels, which have been unkind to her and which have not covered themselves with glory in the entire matter of coverage of this issue since 2008. Hats off to Barkha!


Image: Barkha Dutt
Photographs: Rediff archives
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