August 9, 2005 | National Review Online

Is It Treason?

The 7/7 fallout continues.

In the aftermath of militant Islam’s 7/7 suicide bombings–followed hard by the botched conspiracy to duplicate the savagery on July 21–Great Britain has tangled itself in a thorny legal debate over the propriety of treason prosecutions against terrorists. This row, though unnecessary and doubtless destined to be short-lived, is noteworthy. Beneath its surface lie both the cause of England’s tumult and an emerging dividing line in antiterror strategy.

The problem to which Prime Minister Tony Blair's Labor government has roused itself toward a muscular response is largely of its own making: unbridled immigration that eschews assimilation. As a result, the Independent reports, intelligence officials now acknowledge the existence in England itself of a homegrown insurgency. It is comprised of thousands of Islamists, many of whom have received paramilitary training in al Qaeda camps and all of whom are being urged to jihad against their host country by firebrand preachers.

It's as if the Brits have never met a jihadist they didn't like — at least enough to coddle in a comfy safety net of easy asylum, generous public welfare payments, and stingy extradition. As sure as night follows day, they now find the war not “over there” someplace but right on their own well-tread welcome mat. Suddenly, they are desperate to stem the tide, a matter that involves confronting not only the burgeoning fifth column but the ethos ingrained by years of naiveté and insufficient self-regard.
They're reportedly exploring whether treason prosecutions might be a quick way to change the tone. The targets being pondered include radical Islamic clerics who have been steeling Muslims for jihad against
Britain. Perhaps the worst of the lot, Sheikh Omar Bakri Mohammed, founder of the notorious al-Muhajiroun group which publicly celebrated the 9/11 attacks, is sufficiently concerned about charges that he has fled Albion for the greener pastures of Lebanon — though only after dubbing the 7/7 bombers England's new “Fabulous Four.”
Prosecutions in the criminal-justice system — provided they are only one component of a comprehensive government approach to combating Islamist terror — are doubtless an effective arrow in government's quiver. Treason prosecutions, however, can be problematic.

In a sense, one can see where British authorities are coming from. The linchpin of treason is the allegiance a person owes to the realm. Treason is a crime, fundamentally, of traitorous intent. By making treason part of the law, a society announces that loyalty to country is a norm the departure from which — if it involves aid and comfort to an enemy — is an offense of the highest order. By enforcing that law, government renews that announcement, and society reaffirms the bond between the individual and the body politic.

Here, however, the norm has atrophied. Britain has failed to cultivate national loyalty as a fundamental aspect of Britishness. It has, instead, permitted a virulent strain of anti-British hostility to thrive in its midst. With such impunity, this enemy has unsurprisingly progressed (as its numbers have increased) from merely talking about jihad, to exhorting its execution, to, now, carrying out missions under its banner.

But most militant Muslims in the U.K. would no doubt say, quite convincingly, that they can't be deemed traitorous because they were never loyal in the first place. The nation has failed to instill a sense of allegiance as a reciprocal obligation of enjoying the amenities of British life. For their part, the Islamists never pledged fealty. For all the claptrap militant apologists routinely spout (especially when fending off efforts at heightened governmental scrutiny) about how Islamic law implies a covenant to honor the law of one's host country, jihadist loyalty extends only to the cause of establishing a worldwide Caliphate that hews to jihadist principles. For the militants, Britain has always been the enemy — regardless of whether they happened to be living in Kabul or London.

Now, as a technical legal matter, treason law may yet apply. No matter how he actually holds the homeland in his heart, the citizen is obliged to be loyal, as may be certain categories of immigrants in the progression toward citizenship. But there is no good reason to fight the allegiance battle.

In England, government is empowered to enact — and has in fact enacted — antiterror laws that feature crushing penalties and that do not require proof that the defendant, in addition to being a monster, is also a traitor. The United States has found this to be the case over the last dozen years, abjuring complex treason charges against defendants whose status rendered them eligible, opting instead to employ simpler laws (terrorism conspiracy, material support, solicitation to violent crimes, etc.) that resulted in more straightforward proof and severe sentences.

Another intriguing aspect of the British debate is a reservation that has received more attention than the allegiance question. In discouraging treason prosecutions, Lord Carlile, who reviews antiterror legislation, summed up the point, urging caution because “[t]reason tends to apply to war between nations.” The subtext is clear: An international terror network is not a nation, so adhering to one may not be treasonous. This, of course, is but a short distance from the argument — oft-repeated by opponents of post-9/11 military operations — that the current hostilities, which have resulted in thousands of military and civilian casualties, do not constitute a war because war, too, implies a conflict between nations.

This is a dangerous and self-defeating notion. First and foremost, it trivializes the devastating losses and heroic sacrifices that continue apace. If these are thought less in value, then obviously making common cause with the jihadists is, commensurately, a less serious matter — not exactly the signal a nation seeking to reinvigorate a duty of uniform national allegiance should be seeking to send.

Moreover, if it's not a war, then the laws and customs of war — such as those that permit detention of unlawful combatants because their uncivilized warfare targets civilians — do not apply. In that case, so the argument goes, the terrorists are mere criminal defendants, entitled to all the privileges that implies.

Which brings us, full circle, right back to the mentality that got the Brits into this mess in the first place. Warning: The United States is not immune from this syndrome.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

 

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