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Saturday, July 16, 2005


Arbitrary Law

I have already written on my concerns at the arbitrary criminalisation that is part and parcel of Anti-Social Behaviour Orders. It appears that the legislative response to the London bombings will be the rushing through of a whole batch of far more wide-ranging laws which can only be enforced in an arbitrary manner.

According to BBC News Online;

“New offences could cover people going to terrorist camps overseas or finding out how to build a bomb through the internet, said the Home Office.”

Now, unless these camps and the organizations that run these camps are specifically named – which would be a legal nightmare, open to simple sidestepping through name changes or the employment of ‘clean’ managers and trainers – this law will have to be phrased in such a way as to cover any training which might be applied to terrorist ends. And indeed, as the reference to internet ‘training’ demonstrates, this must be the case – or else it will be legal to look at military instruction on a neutral website, but illegal on a ‘jihadi’ website, which would make the law an ass. Will this apply to mercenary companies and ‘civilian contractors’ who train their staff in military techniques? I somehow doubt that ex-British service men who are trained to kill Africans to protect the property of mining companies and the like will be classed as having received ‘terrorist training’, despite the fact that the training itself is practically identical to that which might have been received at a muhajadeen training camp. What is different is the ethno-religious identify of those involved.

We must ask questions of the Home Office. Would these laws have prevented young Muslim men from volunteering to fight in the Bosnian army during the Balkan Wars? If the answer from the Home Office is that they would not, we must ask just how these laws will be worded if it is possible to be trained in military techniques outside the British military establishment while remaining unprosecuted, while at the same time expecting these laws to prosecute anyone. If the answer from the Home Office is that these men would have been prosecuted, had these laws been in place during the 1990s, then we must ask just how the wording of these laws will allow our mercenary companies to operate. For it most certainly will. The only way that I can see these laws operating in the way that the Home Office hope that they will is through the use of arbitrary prosecutions; people will be able to break the letter of law with impunity, so long as those with the power to prosecute turn the blind eye.

Furthermore, we should note that a trained muhajadeen does not become untrained once he has left prison. Neither does a white man who was trained in firearm use in a militia camp in the Appalachians, or at the third world training camp of a private military contractor, become untrained when he is released from prison. But that is redundant point, because he training in the techniques of killing will not, in itself, be criminal. Or at least, will not be prosecuted.

But that is just an arbitrary entrée. Far more worrying is the proposed law which will make it illegal to ‘indirectly’ incite terrorism. What does this mean?

“Ms Blears [the Home Office minister] said: “It would apply where people would seek to glorify terrorist activity, perhaps, for example, saying ‘isn't this a marvellous thing that this has happened’ and ‘these people are martyrs’.””

Will this apply to other people who glorify or legitimate criminal behaviour? Will it apply to those who call for the internment of Muslims in the Western press, or those who write apologias for torture? Will those who celebrate Dresden or Nagasaki do so without fear of prosecution? Or will these, far more direct incitements to inhumanity remain unpunished? And if this is the case, how exactly will the law be worded? I cannot think of any wording of a modern, just law which would criminalise the imam who argues that a suicide bomber is a martyr and would leave a right-wing newspaper columnist free after he calls for the use of torture or supports the use of extra-judicial death squads. But these laws will not be used to imprison Gary Bushell or Richard Littlejohn, I will promise you.

So what must this law involve? It must involve the use of arbitrary prosecution, with some celebrations of acts that are terroristic being ignored while others are prosecuted. Arbitrary prosecution has no place in a just, civilised legal system. I have argued on other blogs that the real threat to the survival of the values and institutions of ‘Western civilisation’ that we must defend are not under threat from ‘jihadis’, who can kill people but, in themselves, effect no real change. Rather, it is from a reactionary response to these bombings. These new laws are reactionary and will, I believe, tremendously damage our legal system. Why is a Labour government bringing in this kind of legislation? Well, it would be comforting if we could put it all down to the undeniably idiocy of Hazel Blears. But it is part of an authoritarian trend, which, while purporting to be part of the left, criminalises, controls and disciplines largely powerless people while allowing capital greater and greater freedom. If a Labour government must give the state arbitrary powers, then it ought to grant itself the power to imprison and dispossess those in the City of London who have complicit in third-world corruption, it ought to grant itself the power to intern arms dealers whose products are used in repression and tyranny, it ought to grant itself the power to take windfall taxes from the massive profits of corporations in order to fund social programmes that will enrich the lives of people.

Instead, what do we get? Identification Cards, Anti-Social Behaviour Orders and arbitrary anti-terrorist legislation. The decent left? It reads much more like the legislative programme of right-wing free-market authoritarians to me.

INCIDENTALLY: Before anyone shouts at me, ‘arguing’ that we must do anything we can to fight terrorism, let me make sure that you are all aware of the Home Office’s favoured definition of ‘terrorism’. George Monbiot, writing in 1999, wrote;

“The Home Office would like the definition of terrorism to be expanded to include “serious violence against persons or property, or the threat to use such violence for political, religious or ideological ends”. It would like the definition of “serious violence” to be broadened to include “damage and serious disruption” which might result from attempts to hack into computers or interfere with public property. In other words, offences currently defined as criminal damage could, as long as they are politically motivated, be raised to the status of “serious violence”” and thus, legally speaking, terrorism.

Do we think that the Home Office would now like a narrower definition of terrorism? Such a belief would be extremely foolish. This definition of terrorism is so nebulous that any kind of direct action, including boycotts and pickets, could be categorised this way. If we look again at the proposed laws against training and ‘indirect incitement’ to ‘terrorism’, not only are they flawed when we use a narrow definition of terrorism, but when we adopt the Home Office’s own wide-ranging understanding of the term we will be putting in place a set of legislation that will criminalise many aspects of our democratic culture. There will be no more participation (a key plank of democracy), but only consumption of politics (a legitimating veneer). Is this legislation ill-considered? The accidental laying of the foundations of tyranny? If this is the case then Hazel Blears (and the rest of those responsible) should resign on the grounds that her idiocy disqualifies her from such a position of power. If this legislation has been considered, then, quite frankly, she (and the rest) is a danger to the continued existence of humane civilisation. Patently, I believe, and hope, that this is simply a demonstration of our government’s stupidity. But that is no excuse for passing bad laws.

On the current legal definition of 'terrorism', you can do better than Monbiot. Here's the relevant section of the 2000 Terrorism Act:

(1) In this Act "terrorism" means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

As I wrote here,

Under this definition, it is difficult not to apply the label of 'terrorism' to political violence of any sort. There doesn't even need to be a human victim: 'terrorism' includes property damage; it includes hack attacks; it even includes threats.
Sorry Phil, I knew that I needed to do better than Monbiot, so thank you for that.

So, it will be a terrorist offence to train people to hack a website, or to teach people civil disobedience tactics that involve criminal damage - such as, I believe, chaining yourself to a building.

And it will be a terrorist offence (and a deportable offence, so has been argued) to say about Greenpeace protesters ripping up GM corn, 'good on 'em'.

Or it won't, in which case we have arbitrary law enforcement which relies on the goodwill of those with power and authority to keep dissent outside the realms of terrorism. Goodwill which can always be removed at a whim, and this opposition to this removal of goodwill will be met by mock incredulity. 'We're only acting within the law. These laws have been on the books for years.'
Isn't there a difference between the Imam saying "the London bombings were marvellous" and the Sun columnist saying "the government should lock up all Muslims", in that it's not unreasonable to construe the former as inciting people to go out and emulate the bombings, whereas the columnist isn't actually inciting (indirectly or otherwise) any individual to do anything.

On the other hand I do quite like the idea of using this new law against all the right-wing columnists who acted as apologists for Tony Martin...
I see what you are saying Larry, but remember, this is 'indirect incitement' we are talking about. The Sun columnist is speaking to millions of people, who are capable of demanding concentration camps. But, if we can't have Bushell and Littlejohn imprisoned using these new laws, hopefully we will be able to make sure Alan Dershowitz is imprisoned for incitement to torture.

Of course, none of these people will need to fear the new laws, to check what they say. An 'Ann Coulter' will be able to urge invasion an occupation, but an imam will not be able to support resistance to the occupation by writing an apologia for suicide bombings. And we will all think, 'fine', and see no problem for the continued existence of our values in demanding that Muslims operate under different conditions of speech.

Well, either that or we end up imprisoning newspaper columnists, political commentators and academics left, right and centre, which at least would be an example of holding us all to equivalent standards, but a nightmare for democracy.
Well it seems that there is no UN definition of terrorism, it seems several countries on the committee to draft it are commonly accused of sponsoring terrorism.

Most governmental definations look like terrorism act.

My own definition.

Terrorism is:

1) An act of continuing politics by other means that are not acceptable in the Geneva conventions or in civil law.

2) Usually targeting (relatively) undefended targets, such as civilians.

3) Intended to achieve the objective by causing maximum annoyance and inconvenience rather than a direct contribution to the goal.

The latest example, the bombers want to achieve a goal. They know they can never get enough support in the UK to obtain it by political means. They are not part of an entity that claims (or has) governmental status and there is no apparent military justification to bomb civilian transportation. Both of which exclude the protections of the Geneva conventions.

A civilian commuter train/bus system is virtually impossible to defend, and wasn’t defended in this case.

Whether or not the trains and bus are attacked makes no direct contribution to the goal.

And assuming Her Majesties Goverment has more common sense than Mr Runsfeld can be prosecuted easily on exiting International Law or the existing civil laws of the United Kingdom and possibly the ICC, though I gather their judical procedure is not as tight as Mr. Runsfeld's.
One of the annoying aspects of political process everywhere is that when some new variation of crime is committed with enough notice to produce public outrage, there is a demand for a special law against it even though it is covered effectively by the existing law.

A somewhat cynical lawyer friend of mine commented that he thought that the reason the “tuff” penalties demanded for these laws I (especially when they involve political corruption) is less than the general law is not an accident.

In additon to the abuses that Andrew pointed out that come from poorly drafted laws, this just burdens the legal system with layers confusion and makes having an effective judical system much more difficult.
If Scott McShane has something to say that extends beyond one four letter word, I welcome his comments. Otherwise; deleted.

I would even accept someone shouting 'nonsense'.
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