Silenced by a slippery and subversive slight to liberty

November 18, 2005

The Terrorism Bill's proposals to outlaw the 'glorification of terrorism'

are half-baked, fly in the face of history and pose a threat to debate, insists Charles Townshend

Last week, Tony Blair's Government suffered its first defeat in the House of Commons over its proposal to detain terrorism suspects for 90 days without charge or trial. It was a proposal that was deeply subversive of the British legal tradition, which is based on the premise that the civil liberty of the majority (ie, their right to life) should outweigh that of the minority (their right to due process). It is not the first time such a distortion has been made, but it must be the first time it has been made by a prime minister. The right to life, in case it needs to be spelt out, is protected by the murder laws; the concept of civil liberties exists to protect people from arbitrary state power. Blair's thinking on this rightly alarmed many people.

Many people were also alarmed by a proposal in the Terrorism Bill, as originally drafted, to "make justifying or glorifying terrorism anywhere an offence", and this is likely to form a new focus of dissent in the House of Lords. The proposal has undergone slight modifications since it was first put forward. Home Secretary Charles Clarke suggested a more complicated formula following initial protests, making it an offence for a person to "make a statement glorifying terrorism if the person making it believes, or has reasonable grounds for believing, that it is likely to be understood by its audience as an inducement to terrorism".

This seemed to satisfy some of the Bill's critics, such as Dominic Grieve, the Conservative Shadow Attorney-General, who had called the original proposal "completely unworkable", and Mark Oaten, the Liberal Democrat Home Affairs Spokesman, who thought that this "major improvement" meant that cases against people "deliberately trying to provoke terrorism" were "more likely to stand up in court". Some lawyers remained certain that in such cases the courts would still have difficulty in establishing the intent.

The phrase "has reasonable grounds for believing" seems to transfer to the accused the concept familiarly applied to the exercise of the discretionary powers of the police and the Home Secretary. An amendment requiring that intent should be proved was lost by a single vote; another amendment removing the "glorification" clause was defeated by 16.

Last week, Clarke provided a further safeguard by making it incumbent on the prosecution to prove that the accused was reckless rather than simply negligent in his or her intent to encourage acts of terrorism.

In all this debate, though, scant attention has been paid until this week to the central terms in Clarke's proposal: the verb "glorifying" and the noun "terrorism" itself. It is the slipperiness of these concepts that will have the most chilling effect on academic debate and freedom of expression.

Since at least the 1930s, it has proved exceptionally difficult, in fact impossible, to reach an internationally agreed definition of terrorism.

Britain's own definition shows why - "the use or threat of action designed to influence the government or intimidate the public, for the purpose of advancing a political, religious or ideological cause" could almost be a description of human conflict for the past thousand years. While most people outside the world of organised crime would accept that "intimidation" is heinous, "influencing" is not. It works on a day-to-day basis because courts accept that the Government is legitimate and that violent opposition to it is not, but in the perspective of history things become less politically open and shut. The Government of Austria-Hungary was sure the assassination of Archduke Franz Ferdinand at Sarajevo in June 1914 was a terrorist act; few Serb patriots would agree. But it is possible, as the Indian Government has done with its own recent anti-terrorist law, to offer a more demanding definition - "striking terror into the people" is its phrase.

In Britain, Clarke's contribution to the task of clarification took a bafflingly indirect and bizarre form this year. He suggested that while terrorist acts of the past 20 years would be off limits, events before that would be only selectively banned from glorification. The events he gave his seal of approval to were the 1916 Irish rebellion and the French Revolution. Simon Jenkins called the move "an act of censorship worthy of Joseph Goebbels". And if Clarke's proposal was intended to reassure those who had, like Jenkins, seen it as a fearsome agenda for rewriting history, it was hardly likely to succeed, since even the greatest alarmist could not have imagined that anyone would suggest these celebrated events could not be justified. Websites were deluged with examples of events that might be regarded as "terrorist". Presumably the Home Office is working flat out to produce a comprehensive list - for nothing less will do if the Government intends to carry this through - of hundreds of scheduled historical events.

Then the disputes can begin. The phrase "can of worms" springs to mind.

Ever since the word "terrorism" entered the international political lexicon during the French Revolution it has raised acute problems of labelling. The original Committee of Public Safety was explicitly and exultantly "terrorist", but remarkably few other political or military groups have been so keen to embrace the label. As a result, it has always been applied to them by those who dislike or fear them. As such, its descriptive value is contentious, and the task of historians of "terrorist" groups is to untangle the skein of accusation woven by speechmakers, legislators and journalists. Detached and judicious historical analysis produces a picture very different from the wild accusations inevitable in the heat of political struggle. (Though one of the most puzzling things about Clarke's concession that it would be OK to justify the 1916 rising is that even at the time no British politicians or soldiers suggested that it was a terrorist action. Or was he thinking of the British reaction as possibly being terrorist - as at least one Irish bishop did?) Historical re-evaluation of many campaigns labelled "terrorist" - the Front de Liberation Nationale in Algeria, for example, or Hizbollah in Lebanon - has usually produced a much more complex, nuanced, often ambiguous understanding. This is not quite the same as the often mocked (though politically spot-on) view that "one man's terrorist is another woman's freedom fighter". It is more to do with the realisation that in either international war or civil conflict, terrorism is seldom, if ever, a free-standing strategy: it combines with all kinds of military and psychological modes of struggle. For example, the British strategic bombing campaign against Germany during the Second World War was unquestionably "terrorist" in intent - it was designed to spread terror among civilians - but it would be misleading to label the RAF bomber crews as "terrorists".

In a very different context, there were some good grounds for calling the Provisional IRA terrorist, but that label alone would provide a very inadequate understanding of their campaign or their relationship with the nationalist community in Ireland. Hence the great difficulty of finding a workable definition of the word, in particular one that distinguishes it from "war" as traditionally understood.

But the really problematical issue is what would constitute "justification"

or "glorification". People rushed to suggest that the Prime Minister's wife, Cherie Booth, would be liable to prosecution for her remark that she could understand why the intolerable conditions in the occupied Palestinian territories might drive some people to terrorist action. Although this remark was presumably not intended as a justification of terrorism, it was astonishingly clear-eyed in comparison with anything produced by her husband or his colleagues by way of analysis, and way off-message as far as the War on Terror goes. Terrorism, as we have been instructed since 9/11, is caused by "evil ideology", and Israel is a victim, not a provoker, of violence. But even the Washington neocons at their most belligerent have not suggested that discussing the root causes of terrorism, however spinelessly liberal, should be made a criminal offence - nor perhaps does Clarke. The revised proposal appears to play down the notion of "justifying", proffering instead a couple of new verbs: "exalt or celebrate". Perhaps the prosecution lawyers will go further with this thesaurus-like list, adding "extol, magnify, eulogise, panegyrise" - maybe even "doxologise" - for good measure. But they should note that Roget charts no fewer than five meanings of "glorify" and that, taken together, the synonyms run to a couple of pages. Where, we may wonder, can this get us?

As worrying as any of these issues is the fact that Clarke seems not to have foreseen the problems raised by this (at best) half-baked proposal.

Can he really have believed that it is a worthy, and workable, addition to the English legal tradition? If so, this gives a new edge to the comment made by some of his Labour predecessors in the debate over the anti-terrorist law of 1939 (the Prevention of Violence Act), which gave the home secretary - at that time Sir Samuel Hoare - discretionary powers to deport, as he said, "the men and women who, we are convinced, are engaged in the (IRA) plot, but against whom we have not sufficient evidence to obtain conviction in a law court". The Liberal MP Dingle Foot (who would later join Labour) protested: "We have spent several centuries building up a system so that the home secretary shall not do that sort of thing." While Arthur Greenwood, deputy leader of the Labour Party, sardonically noted:

"Experience has shown that home secretaries are in no way superhuman. They are quite naturally swept off their feet at moments of panic." Another MP added: "There will be other home secretaries and other periods of panic."

If the rules of the game have changed, as we are told, they have not changed much.

Charles Townshend is professor of international history, Keele University, and author of Easter 1916: The Irish Rebellion , published by Penguin Allen Lane.

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