To alleviate a dilemma.
By Paul J Cella Posted in American political tradition | sedition | the Jihad | War — Comments (12) / Email this page » / Leave a comment »
An article in the Washington Post details the difficulties faced by prosecutors in achieving guilty verdicts in federal terrorism cases. The dilemma, from the prosecutor’s perspective, is simple enough: You have a cell of conspirators plotting murder and mayhem; should you intervene early, with arrests and formal charges before the plot matures, or wait until its maturity virtually insures guilty verdicts? If you choose the former, you indemnify against the possibility that the plot will be carried out under your very nose, that, in fine, the intervention will come to late; but in so doing you may find yourself with a weaker case. If you choose the latter, interdicting the plot in its later stages, your prosecution will be far easier, but you magnify that risk that it will succeed despite your best efforts. Patience may issue in disaster; swift intervention in a failed prosecution.
It seems to me that a possible alleviation of this dilemma lies in new legislation: Let us make the plot itself a more serious offense, one that is easier to prosecute and carries a more onerous penalty. That is to say, let us proscribe the mere preaching or advocacy of jihad against America.
Read on.
More precisely: Let us amend 18 U.S.C. § 2385 to reflect the current threat from Islam. Let us establish that “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States … by force of violence” in accordance with the Islamic doctrine of Jihad; that whoever, in accordance with the doctrine of Jihad, “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States” shall be “fined under this title or imprisoned not more than twenty years, or both.”
Let us, in short, make the preaching of Jihad alone a serious federal offense under our extant sedition statute, conviction of which will lead to heavy fines and, in most cases, a considerable prison term.
It is true, of course, that sedition is not often prosecuted in this country. Whether this is wise as a general proposition I leave aside, in order to set forth a more specific proposition: sedition should be more often prosecuted against Jihadists. We should announce our intention — and back it with specific legislation — to apply sedition law prejudicially against conspirators within the Islamic religion.
I do not present this as a silver bullet. The Jihad-sedition law will not remove the dilemma described in the Post. But it will give prosecutors a useful tool — one which will diminish the likelihood that early intervention in a Jihadist plot will result in a failure to convict. The mere plot itself, quite independent of its maturation toward its ultimate goal, will be enough to put the conspirators behind bars for a long time.
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To anticipate the common objection that this sort of legislation and prosecution is alien to the American tradition of Free Speech, I say: to the contrary. The prosecution of sedition, whatever our dear Liberals may think of it, is a ubiquitous feature of the American political tradition. We have prosecuted Jacobins, Copperheads, polygamists, anarchists, Fascists, Nazis, and Communists, just to name a few. Moreover, historical comparison is available for those who care to consider it. We threw a handful of Jacobin sympathizers in prison in the late 18th century; and managed to avoid the conflagration that those energumens eventually visited France, and indeed, upon the entire world. We outlawed polygamy, demanded loyalty oaths from Mormons in the Utah Territory, and enforced these measures with sufficient vigor to fill half the prison population of that territory with polygamists; and that ugly episode had a happy ending when Mormonism abandoned the wicked doctrine of polygamy. Need I even recite the record of slaughter inflicted by the Fascists and Communists where they were allowed to flourish, under the umbrella of tolerant Liberalism?
My point is merely this: the rise of organized sedition, animated by armed doctrines and implacable fanaticism, is a political problem that does not admit of easy solutions. The path before us is a treacherous one indeed. It is of course true that many innocent men were caught up in our various crackdowns on sedition. It is true that many mere cranks and eccentrics were carried in the train of proscription and enforcement. But I for one will stand on the record of my country in taking these threats seriously early, before they matured into civil war and upheaval.
A Challenge. — Comments (17) »
To alleviate a dilemma. 12 Comments (0 topical, 12 editorial, 0 hidden) Post a comment »
You'd point me "to the Alien and Sedition Act and it's aftermath"? Well, what about it? The Sedition Act was a remarkably tame piece of legislation for all the historical furor surrounding it. It included a sunset provision; it affirmed the absolute defense of truth. In my reading it was a justifiable measure in light of the massacre and plunder unleashed by the Jacobins, which threw much of the world into warfare and misery. We have no obligation, under the First Amendment or any other amendment, to extent legal protection to the doctrines of those who would like to overthrow our institutions.
I agree that a formal declaration of war should have been made after 9/11, a declaration that a state of war exists between America and her Islamic enemies. But it is difficult to imagine how this could have been carried off, considering that six and a half years later we still cannot bring ourselves to name the enemy.
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And the Lord upon the Golden Horn is laughing in the sun.
You should probably make darn you include the word "violently" before overthrow. The framers certainly anticipated that parts of the Constitution, or even the whole thing I suppose, could be overthrown/replaced/etc by the will of the people. The didn't make it easy, but it's possible so I would say that the document did INDEED protect under the 1st Amendment the right to advocate for a different government as long as it did so peacefully. In fact I'm pretty sure given the tyranny they just got out of from Britain where they COULDN'T speak against the King they probably considered this one of the greatest accomplishments!
Check the OP:
"More precisely: Let us amend 18 U.S.C. § 2385 to reflect the current threat from Islam. Let us establish that “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States … by force of violence” in accordance with the Islamic doctrine of Jihad; that whoever, in accordance with the doctrine of Jihad, “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States” shall be “fined under this title or imprisoned not more than twenty years, or both.”
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And the Lord upon the Golden Horn is laughing in the sun.
Conspiracy to commit murder is already on the books, and lo and behold so is "conspiracy to commit a terrorist act" which is what the Miami morons are behind held in jail on right now. If you want to put people away for life for driving someone in a taxi or selling them phone service you're going to have to come up with a better argument. All 3 cases were flimsy and writing new laws around bad examples may not be the best idea.
Preaching Jihad a crime itself? Where do you draw the line? Marching in the streets or actually plotting to blow stuff up? The latter is already a crime... Didn't Pat Robertson suggest nuking the State Department on TV? My God, wouldn't that be encouraging a terrorist act and why isn't he in jail right now? You were quite specific that the Islamic threat made the difference. Excuse me if I don't like the idea of picking on a particular religion instead of a particular act. That's a really slippery slope, what's next the Jews again?
You have quite a list in your anticipated rebuttal, but I've got one for you. "Need I even recite the record of slaughter inflicted by the Fascists and Communists where they were allowed to flourish, under the umbrella of tolerant Liberalism?" America and it's treatment of Native Americans, Eskimos, etc leave a lot to be desired. We've made our mistakes in the past as have others. That doesn't mean we should make them again.
Let's get back to the article for a minute and look at 1 of the 3 cases. For this is really important.
"In August 2006, Iqbal was arrested for conspiring to supply financial support to a terrorist agency. His alleged crime was selling access to Al-Manar, the news and information cable channel run by Hezbollah out of Lebanon.
According to court filings, the case started when a confidential informant told the FBI in February 2006 that Iqbal was selling access to Al-Manar. At the time, it was not illegal, but the next month the Treasury Department added Al-Manar to the list on the grounds that funds it obtained went to Hezbollah, which the United States considers a terrorist group.
In June, the FBI's confidential informant went back to Iqbal's company and again offered to buy the overseas cable service that included Al-Manar. Iqbal told the informant that Al-Manar was temporarily unavailable, but would return. Iqbal also allegedly said he knew the channel was now on the terrorist list, but he expected that to change."
So his original arrest was for doing nothing? Did you see where he actually DID anything illegal? I'm not saying this guy is a good guy or anything, and they arrested him for something else a few months later, but I've no idea how good a case that one is either. However, in this part, what EXACTLY did this guy do to violate the law?
I mean I'm pretty sure we've got LOTS of companies that sold stuff to countries they weren't allowed to AT THE TIME. In fact I can think of a few where people formed shell companies or subsidiaries to get around the law, and they want to prosecute this guy for doing something WHEN HE WAS ALLOWED and expressing an opinion they didn't like?
Don't even get me started on the morons in Miami. Being stupid and saying stupid stuff isn't a real crime yet, and the FBI "informant" tainted that case so much it's not even funny. Had they progressed to actual planning anything and not been spoon fed by a shady informant I'd be more sympathetic. Keep em under surveillance or something, but arresting them here was probably too early. Or MIGHT have been appropriate if the informants were silent and not encouraging the group to do stuff...
the confidential informant question, which I think is a path fraught with peril, though it is hardly a new one for the FBI.
I have difficulty seeing how American treatment of Native Americans relates to our treatment of the doctrine of Jihad. My proposal rests upon the firm judgment that said doctrine is wicked and intolerable; and that we have no obligation to extend legal protection to wicked and intolerable doctrines.
I suggest you go ahead and read 18 USC 2385 before you continue commenting along these lines. Sedition is illegal right now. My proposal is amend the statute to take specific cognizance of the threat from the Islamic religion -- which threat, tiresome "what's next the Jews" rhetoric notwithstanding, is quite a bit more pressing than the threat from other religions.
Excuse me if I don't like the idea of picking on a particular religion instead of a particular act.
I am "picking on" a particular doctrine, not a particular religion as a whole. The United States Code already states that "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States" is a federal felon. No overt act is necessary.
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And the Lord upon the Golden Horn is laughing in the sun.
"That is to say, let us proscribe the mere preaching or advocacy of jihad against America."
THE HOLY QURAN specifically exhorts the followers of Islam to wage jihad to spread Islam. There are over ONE HUNDRED verses in the Quran that are concerned with the theory and practice of jihad. How the heck are you going to make that a crime without violating the First Amendment guarantee of freedom of religion?
Jihad is built right into Islam. You can no more make its advocacy ipso facto a crime, than you can make it a crime for Jews to advocate keeping kosher.
Islam is not like any other religion, insofar as it claims for its adherents a divine right and even duty to wage holy war to spread its message. It's a warrior religion.
All you can do is declare specific calls to commit violence against specific targets to be a crime--inciting to violence.
After all, overthrowing government in principle is actually a principle enshrined in our Declaration of Independence. That if a government is perceived to be destructive of life, liberty and the pursuit of happiness, it's the duty of the people to overthrow it.
It just so happens that to a devout Muslim, our government is already perceived that way.
-- we can do it again.
Cf, Mormonism and polygamy, the latter of which "built right into" the former. But Congress outlawed it, and the Court upheld these laws. And, lo and behold, Mormon abandoned the doctrine.
The idea that the First Amendment must, absolutely must, be interpreted to protect manifestly wicked doctrines is a common enough one, but I believe it to be erroneous.
The point of the legislation I have proposed would be to define Jihad itself as sedition. To preach jihad against America is to commit sedition -- which is, I repeat, already a crime.
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And the Lord upon the Golden Horn is laughing in the sun.
I suppose after jailing so many of them for polygamy that they had little choice. Of course since the entire Mormon nation was rather small and entirely inside the US this worked. Interestingly enough, as a pure states rights issue I wonder if today it wouldn't be valid in Utah much like same sex marriage is elsewhere.
On the other hand, Islam is how many billions of people and they exist all over the US and many aren't inclined to like us already. If the more mainstream members perceive that we are going after them as a religion, and not just for violent acts, I daresay that's a box better left closed because it will only make more fanatics which is never a good thing.
I think, at the best, you are way too far ahead of a time where people would agree with the need to try to stifle religious speech. I'd be particularly interested in an analysis of British policy towards Islam and it's effects though. Also, how much "freedom" would we have to give up if we incite more violence in the name of stopping violence.
we should do whatever they are not doing
This still seems to be an un-necessary and redundant measure. Adding the clauses you suggest doesn't widen the net anymore than the existing legislation. In other words, who cares if the illegal acts are undertaken in accordance with Jihad or in accordance with Scientology? The doctrine behind the sedition is irrelevant.
Your issue, from my perspective, really seems to be, a perception (perhaps substantiated) that there are radical Islamic entities undertaking open sedition right now but for the lack of appropriate legislation we are powerless to do anything - thus your legislative remedy.
I have to ask whether the real problem is that the government simply refuses to enforce the existing law. Adding a clause to it really wont address the real problem. You need to petition the authorities to actually bring charges against whatever perpetrators you feel are in violation of the already existing treason/sedition legislation.
... we have plenty already. We merely need more vigorous enforcement of the ones we have. But that is not politically correct in our time so our children will have to face the consequences for us. Those that do not learn from history are condemned to repeat it.
John
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Why would God invent something like whiskey? To keep the Irish from ruling the world of course
I would point the OPer to the Alien and Sedition Act and it's aftermath. Additionally, such a law as proposed by the OPer would be yet another camel's nose under the tent joining McCain Feingold and Hate Crimes Laws in the unconstitutional regulation of thought, freedom, association and speech. As a result I doubt what is proposed would stand up under SCOTUS scrutiny.
There is a simpler solution, (One which has been missed and one for which President Bush has received no end of criticism.), called GITMO and the Enemy Combatant classification.
One of the problems this has been such a sticky wicket is that we had no formal Declaration of War in the 911 aftermath. Were we formally at war with extremist Islam, any person or group found to be plotting an attack on US interests could formally be classified as POWs and incarcerated indefinitely. I personally believe these are tools that are at the POTUS's discretion already but a formal Declaration of War would have put the issue to bed permanently!
--"Faith is a free work to which no one can be forced. Nay it is a Divine work, done in the Spirit."--Martin Luther