By JOHN HALL
Media General News Service
August 10, 2005
That's not the problem. The problem is that America, in its zeal to fight terrorism, will begin to emulate Britain's headlong rush to overturn free-speech protection.
Britain should not despair of bad American influence. In the first place, the British are long overdue for reforms in their criminal-justice system, which has allowed Islamic militants to plot almost openly to commit acts of sabotage and violence.
In the second place, the reforms proposed by Prime Minister Tony Blair do not emulate those of the Patriot Act or the other steps the Bush administration took after Sept. 11, 2001. The Blair manifesto appears to be very different, building on English legal traditions such as the law against treason, which is limited by the U.S. Constitution and has been all but abandoned in modern American practice.
The U.S. contribution to the legal war on terrorism has been the notion that "illegal enemy combatants" may be held indefinitely without trial and without even protection of the Geneva Convention. On that, Britain conspicuously has not signed up and has challenged the Bush administration over the detention of British subjects.
Several British judges and law-school professors have disputed the notion that terrorism is an act of war rather than a criminal violation.
Blair's own legal sword in the wake of the London bus and subway bombings last month fell on the criminal-justice side. Yet in some ways, he was able to say and propose things that an American president, even after an event like 9/11, would not be able to get away with.
He said, for instance, he wanted to declare "justifying or glorifying terrorism" a punishable offense. Blair said he would submit new legislation this fall that would spell out what he means, but it will take squadrons of lawyers to reduce such witch-hunt words into the legal particulars of criminal legislation.
Relying on the courts to stop badly fashioned laws is becoming problematic everywhere. As retiring Supreme Court Justice Sandra Day O'Connor said on the way out the door, the courts are under increasing attack from the political branches of government.
The courts in Britain also don't have a free hand to stop governments that have run amok with bad legislation.
Blair's own wife, Cherie, a human-rights lawyer herself, has warned the government against interfering with the independence of the courts.
One of the laws Blair has already started to throw at radicals in his midst is treason. The attorney general said he was considering charging three prominent Islamic clerics as traitors.
For sure, they aren't patriots. One advocated hostage-taking in schools, a second praised the suicide bombers and a third called for jihad in the U.K.
Treason in Britain isn't quite the same capital offense as it was under the Treason Act of 1351, when offenders against the crown were drawn and quartered in London's public square. Now it's a life sentence at most, and there are a welter of lesser punishments. Still, being branded a traitor gets your attention.
In the United States, Article 3 of the Constitution defines treason as levying war against the United States or "adhering to their enemies, giving them aid and comfort ..." Because it requires the testimony of two witnesses, the law wasn't used very much and, instead, other laws, like sedition, were substituted down through the centuries.
If the Founding Fathers hadn't made treason so hard to prove, it might be a weapon the United States could be deploying today against people in our midst calling for our death and destruction. But even that's doubtful, because the whole concept of treason has been so thoroughly ridiculed by orators and men of letters over the centuries.
The problem with all these laws that inhibit speech - treason, sedition, justifying or glorifying terrorism, whatever politicians come up with and however base or noble their motivations - is that eventually they can be turned around to clamp somebody in handcuffs who got a little carried away. An editor, perhaps.
If Americans follow the British example, it's the way we'll end up.