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Judges and Terrorism

By October 13, 2006 No Comments

Georges Clemenceau is alleged to have remarked (in a quote also attributed to Talleyrand and Aristide Briant) that “War is too serious a matter to entrust to military men” This might be true, but then the experiences of the 20thCentury could let any thinking general remark just as truthfully that “Peace is too fragile to entrust to politicians”.

As the terrorism of the Jihadist war grinds on, it is also becoming apparent that the law might also be sometimes too important to leave in the hands of the judges. There have been two critical fumbles by judges in late October 2006 which bring the notion of the sagacity and wisdom of the bench into serious question.

Most of the terrorism that the World witnessed in the late 1960s up until the mid-1980s was minor compared to what was seen in New York on 9/11, in Beslan, or Bali, or a number of other blood splattered places. The terrorists of the time were usually some variety of Marxist or Marxist/Nationalist and were eager to describe themselves as ‘revolutionaries’, ‘urban guerrillas’ and whatnot. They were also eager to claim for themselves special status as prisoners – claiming that they were not merely thugs, but were prisoners of war.

Ceding this argument and according the legal rights of POWs to terrorists would have probably made matters much worse, and thus it was important to try them as criminals in conventional courtrooms, and to clap them off to prison when properly convicted. It was occasionally vexing when judges would sometimes view terrorists as misguided youths or overly sincere activists and reduce their sentences, but then, these terrorists were indeed often much less dangerous than those we face today.

Most of today’s terrorists are not a bunch of posturing revolutionaries using Molotov cocktails and pipebombs on empty offices to demonstrate the sincerity of their outrage: They are suicide bombers with explosive vests laced with nails steeped in fermented feces and rat poison to shred commuters and party-goers. Today’s terrorists don’t hijack planes to begin long-drawn out hostage dramas for television coverage; they try to blow them out of the sky or ram them into office towers, killing everyone on board and as many as they can on the ground. When they take hostages, it’s not for a staged “peoples’ justice” trial with an attached demand for money; it’s so they can post footage of themselves on the internet sawing their victim’s head off with a knife.

Moreover, especially with the Jihad movement, today’s terrorists are not simply organized in collections of a few cells with some connections to another collection of cretins in a parallel political front. The Jihad movement is a global super-network that recruits everything from autonomous individuals to large sophisticated terrorist groups; it has the resources of entire governments behind it, yet is also connected to some of the world’s leading organized criminal societies. The Da’awa political/religious front (in Islam, religion and politics are often the same) that accompanies the Jihad is a vast series of interlaced networks with a global presence. Its spokesmen can be consulted in the White House and in 10 Downing Street one week, and be out attracting more recruits and sympathizers for the Jihad in the next.

The Jihad is complex to map out but can be simple to understand. Yet some judges in the US and Canada evidently have a great deal of difficulty in doing so.

We can expect judicial incompetence (to put it mildly) where, for example, Indonesian courts released some of the architects of the 2002 Bali Bombing after a few months, but which promptly executed three Christian Indonesians who had been defending their community from Jihadist-inspired rioting.

What a world confronted by the Jihad doesn’t need is some of the decisions by Western judges that have come down in the last month.

Lynne Stewart is an American lawyer who represented Sheik Omar-Abdel Rahman after he was convicted for his role in the 1993 World Trade Center bombing. Sheik Rahman was a leader of Al-Gama’a al-Islamiyya and has a lengthy record of recruiting for Islamic terrorism. Stewart, who never matured out of her radical chic days, had previously represented such clients as members of the Black Panthers and the Mafia. She saw no problem in violating US law and her professional ethics by passing messages from her client Rahman to the outside world. He had gone to New York in 1990 on behalf of al Qaeda to orchestrate fundraising and recruiting for them, and had also been involved in planning bombings inside New York City’s commuter tunnels.

Stewart was convicted in 2005 of passing messages from Rahman to his followers in Egypt, among which was his instruction to resume terrorist operations against the Egyptian government. US prosecutors were confident that Stewart, a 67-year old lawyer, would receive a 30 year sentence, but were stunned when US District Judge John Koeltl sentenced her to 28 months instead. It was not that Judge Koeltl underestimated the nature of Stewart’s offences: He described her actions in his judgment as “extraordinarily severe criminal conduct” and feared her passage of messages for Rahman would have “lethal consequences”. Indeed they will, but not for Stewart. Whatever was this judge thinking?

Judge Koeltl apparently did give weight to Stewart’s ‘progressive’ accomplishments. Evidently, he never comprehended the longing that many radical ideologues like her have to undermine their own society.

Nor are some Canadian judges much better at assessing the true nature of the problem of contemporary terrorism. In late October, Justice Douglas Rutherford ruled that a section of Canada’s anti-terrorism act violates the Charter of Rights and Freedoms. Rutherford struck down a key clause in the anti-terror law, the section which defines terrorism as a criminal act that uses ideological, political or religious motivations.

Unfortunately, the study of terrorism has always been murky and therefore no adequate definitions of terrorism have ever been formulated – partly because the realm of terrorism has grey and indistinct boundaries that merge with such fields as criminal activity, violent protest campaigns and semi-clandestine warfare. Arguments about the ideological/political or religious motive for terrorism is one of the clearest ways of distinguishing terrorism from these other fields.

Organized criminals will occasionally use violence for political purposes, and the mentally unstable will often claim that they committed violence because the voice whispering in their head or some half-formed cause demanded it. Terrorists are always acting out an ideology – one which may have a political (e.g. fascist, Marxist, or ‘National Liberation’) basis or which is religiously inspired, such as the Sikh Fundamentalism of Babbar Khalsa or today’s Jihadis.

To be sure, every terrorist deliberately chooses to commit to a ‘cause’ from personal internal motives (usually dysfunctional ones), but it is very difficult to think of one who didn’t deliberately select an ideology that ‘authorized’ him to act and shaped the nature of his violence. We all say that ‘most Muslims are not terrorists’ these days, but those Muslims who deliberately chose to support the Jihad ideology are either terrorists or else are knowingly abetting it. By no means are most animal rights activists or marchers in rallies against globalization likely to be terrorists — but those who deliberately decide to violently act out for these causes invariably selected to align themselves with an ideology that permits and guides such behaviour.

The problem in criminal law, of course, is that not all adherents of an ideology are necessarily criminals (which might only really mean nobody was looking too closely). But Canadians could tolerate the Communist Party of Canada money laundering for the Soviets and striving to influence political groups and labor unions, because they weren’t threatening to have their members get on the subway wearing explosive vest packs. Instead, most of their energies were diverted to interminable dialectical analysis. Repellent as they were, most of our Neo-Nazis were relatively harmless poseurs who couldn’t organize a two-car funeral procession without factional squabbling. Many of today’s ideologues are far more sinister.

Adherence to a radical ideology is a sure way to identify an affinity for terrorism, which also makes it crucial to keep it in our laws. Rutherford’s decision confused ideology with motive… which traditionally is not used to establish that an offence took place in criminal law, but which can have an effect in sentencing. Lawyers will seldom argue about motive in a criminal case and most judges won’t let them.

However, adherence to a violent ideology is a telling indicator for law enforcement and investigators about a suspect’s memberships and associations, and a likely guide to his actions. Police acting on a biker investigation will monitor a clubhouse to see who is wearing a patch and who is just hanging around – if you want to identify a possible Jihadist, monitor the chat rooms and radical Imams’ sermons to see who is walking the walk and talking the talk.

Removing ideology from the terrorism laws will place a handicap on our intelligence and security agencies – at a critical time. Police, if not the courts, often recognize a clear distinction between intelligence-grade material and legal standards of proof. For intelligence work, the presence of smoke, heat, and flickering light suggests fire, which leads one to take a closer look. The legal standard of proof would not admit that this was a logical conclusion, as the case might probably begin with a frenzied tussle to shape the definition of combustion.

However, the essence of our counter-terrorism policies is to avoid having to take things to court for as long as possible; their goal is to prevent terrorist attacks, not to allow an attack to take place and only then bring the terrorists (if they weren’t successful suicide attackers) to trial. But, if – as was the case with the arrest of 18 alleged Jihadis in Toronto in June 2006 – a group hasn’t committed a terrorist attack yet but appears to be getting ready to launch one; then police need to arrest them before hundreds of us get killed. Now they have to argue in a court that their suspects were terrorists, and why not use the ideological identifier as a further proof? It’s what brought police to monitor them in the first place.

At the start of the Second World War, the USSR had signed a treaty of alliance with Nazi Germany to divide Poland. The RCMP detained many members of the Communist Party for the first two years of the War. The RCMP also detained Canadian organizers for the Italian Fascist movement and the German Nazis. In telling contrast to the disgraceful wholesale internment of all Japanese Canadians in 1941-42 Canadian authorities were far more selective in 1939-40 when moving against the Italians and Germans, and concentrated on picking up those who were actively identifiable as ideologically-motivated agents.

Facing, as we are, an ideological threat with a worse potential than the Nazis or Soviets, should we be handicapping our police now by telling them to ignore ideology? Or is it going to be true that the fight against terrorism is too important to leave to the judges?