- The Washington Times - Saturday, August 13, 2005

Responding to the July 7and 21 London transit system bombings, which took 56 lives, and the subsequent August 4 warning broadcast by al Qaeda deputy Ayman al Zawahiri of “more destruction” unless Britain withdrew from all the Muslim lands, Prime Minister Tony Blair announced August 5 that “[t]he rules of the game are changing” in Britain’s war against terrorism.

Some of changes took effect immediately and others must await Parliamentary consent. They include shutting down places of worship that foment extremism, criminalizing any speech that justifies or incites acts of terrorism, expediting the deportation of individuals — including naturalized citizens — involved with the “fanatical fringe” of the country’s 2 million Muslims, and keeping out of the country any people “whose activities or views pose a threat to Britain’s security.”

The measures announced by America’s primary ally, however necessary and justified, have already been condemned as draconian in both Britain and America. So fierce is America’s historical commitment to the freedoms protected by the Constitution’s First Amendment (freedom of speech, the press, assembly and religious exercise) that the sacrifice or curtailment of any of these rights, even if forced upon the country by the war against terrorism, appears on the surface to be unduly costly.

While Germany, in the course of its post-World War II national catharsis, found it both just and necessary to outlaw the Nazi party and the promotion of its racial doctrines, many other European countries, including Great Britain, America’s progenitor and long-time partner, have gone the other way. The Brits, French and Dutch remained inexplicably tolerant of both reigning and deposed tyrants and of anti-tyranny activists of all stripes, providing havens, media audiences and even public welfare support for diverse immigrant malcontents, extremists and radicals from all corners of the world.

Likewise, adhering to its own First Amendment devotion, the United States has given priority to the politically — rather than economically — deprived in its immigration policies. And, domestically, 35 years after the defeat of the German masters of Dachau and other infamous Nazi extermination camps, the American Civil Liberties Union found it appropriate and imperative in 1978 to support before the United States Supreme Court the right of America’s native neo-Nazis to parade with flags and full paraphernalia through the Chicago suburb of Skokie, then heavily-populated by survivors of the Nazi holocaust.

Similarly, a world-wide network for publishing and distributing vile racial and anti-Semitic materials, headed by Gary Rex Lauck of Lincoln, Neb., was not stopped until the “Farm Belt Fuehrer” was arrested and convicted in 1995 while traveling abroad. Lauck was sentenced by a German court to four years in jail for inciting racial hatred through the dissemination of forbidden materials, despite his lawyers’ claim that Germany could not punish him for activities that in the United States were protected by the First Amendment.

In fact, the highly-lenient, current United States standard for the right to advocate racial, religious or other hostilities was codified by the United States Supreme Court, in Brandenburg v. Ohio during the tenure of Chief Justice Earl Warren: “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action… . the mere abstract teaching … is not the same as preparing a group for violent action… .”

To this day, it indeed appears unpatriotic to question or consider any modification of this time-honored standard. In both criminal and civil law, words and communications are not deemed as dangerous and offensive as the slightest of deeds. A slight and unsuccessful assault suffices to trigger the claim of self-defense. But inflammatory words alone will not.

It is with great reluctance, therefore, that our historians and other scholars make reference to previous instances in which the Founding Fathers and their successors have found it advisable and necessary to curtail the nation’s freedom of communication and assembly in the face of existing or feared wars, crises and emergencies. The Alien and Sedition Act of 1798 and the 1917 Espionage Act passed during World War I are thus usually treated as blots on this nation’s near-perfect First Amendment record.

Over time, while many, if not all, countries developed permanent emergency codes in instances of national crisis designed to expand governmental powers, thereby affecting various citizens’ freedoms, no such legal developments took place in the United States. Some United States Supreme Court justices, including Felix Frankfurter and Robert Jackson, came close in the 1944 Korematsu case to explore the constitutional possibility of war-time safeguards that are different and lesser than those ordained for peace-time governance. But the judiciary and legal community have generally sidestepped the controversial topic.

The emergence and escalation of religious-political terrorism, as a successor to the ideologically-based threats posed by the Cold War, raises once more — and even more sharply and critically — the question of the First Amendment’s role in times of national crises.And what about any other constitutional standards? The Constitution itself fails to give us much guidance or direction on the wartime application of its safeguards. One narrow exception is provided by Article I, Section 9 which permits the suspension of the right of habeas corpus in instances of rebellion and invasion, and another is the Fifth Amendment’s suspension of the grand jury requirements in “cases arising in the land and naval forces.”

One must note with satisfaction, therefore, that despite the host of other legal issues that have been raised by the current war on terrorism, no questions regarding the curtailment of the people’s communication and assembly safeguards have emerged in the United States thus far. Although some legislative enactments, including the Patriot Act, as well as the conduct of the executive branch and the military (including the detention of enemy belligerents) have recently become subjects for strong debate and disagreement, neither concerns about abuses of speech, press and assembly freedoms, nor calls for their curtailment have emerged as prominently in this country as they have in Great Britain.

The absence of a noted urgency in the United States does not necessarily mean a total resolution or the non-existence of problems. The current quiet does not absolve us of the need to reevaluate this country’s historical experience with the First Amendment safeguards in the face of the particular characteristics of terrorism.

Will the war against terrorism — a war conducted by an adversary who recognizes no rules or regulations, who utilizes combatants seeking to conceal their belligerent identity, who justifies the indiscriminate assault and murder of civilians and military personnel alike, and whose primary goal is to terrorize and disrupt the operations of both the political regime and civil society — require not only distinct military strategies and distinct weapons, but also distinct policies and procedures that might call for narrowing, or curtailing, or merely redirecting or modifying some of the freedoms and rights of a population already threatened by terrorism?

The plan of action currently being advocated by Great Britain’s Prime Minister Tony Blair makes the need for an American review of this complex and troublesome question most urgent.

Nicholas N. Kittrie, former counsel to the U.S. Senate Judiciary Committee and consultant to the Vice President’s Commission on Terrorism, serves as distinguished university professor of law at the American University and is author of “Rebels With A Cause: The Minds and Morality of Political Offenders” (Westview Press, 1998).

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