- The Washington Times - Monday, August 8, 2005

The United States should follow the instruction of Great Britain in punishing speech likely to motivate terrorism. President George W. Bush should propose legislation making criminal the condoning or glorifying of terrorism against the United States whether uttered domestically or abroad, for example, Bobby Fisher’s notorious glee at the September 11, 2001 abominations. Reasonable suspicion of sympathy with terrorism should justify excluding or deporting aliens. And naturalization should require the applicant’s oath or affirmation to cooperate with law enforcement and national security authorities in the investigation or foiling of terrorist crimes.

The proposals would be no witch hunt. Witches were figments. Terrorists are the real thing. Just ask their victims, whether in New York City, London, Jerusalem, Madrid, Bali, Casablanca, Nairobi, Baghdad or elsewhere. The alarm over terrorism is unlike the hysterical and racist relocations of Japanese Americans during World War II. The latter were herded into concentration camps without a crumb of evidence of disloyalty. The vile ambitions of Muslim terrorists are open and notorious. (Non-Muslim terrorists like Timothy McVeigh or Eden Natan Zada, a Jewish deserter from the Israeli Army guilty of slaying four Israeli Arabs, are but a tiny fraction of the whole).

The harms inflicted by terrorists coiled to strike at any time or place are staggering. Travel is confounded and prolonged. Privacy bows to legitimate worries over security. Suspicions grow. Trust recedes. Split-second decisions required of law enforcement when lives are at stake occasion tragedies like the Brazilian shot by the London police. Terrorism must be crushed with an iron fist.

Preoccupation with its so-called “root causes” would be folly. The Treaty of Versailles and the plight of the Sudeten Germans were said to be the root causes of Hitler’s madness. The Treaty, de facto, was defanged; the Sudetenland was surrendered; yet World War II and the Holocaust ensued. The root causes of terrorism against the United States or Britain are said to be the wars in Afghanistan and Iraq, support for Israel, and antagonism towards Islam. But Muslim terrorism against the United States commenced at least as early as 1993 with the World Trade Center bombing. It continued prior to the Afghan liberation with Khobar Towers, the destruction of the United States embassies in Kenya and Tanzania, the U.S.S. Cole, and the thwarted Millennium plot targeting the Los Angeles International Airport.

United States support for Israel has been constant for decades, yet Muslim terrorism against Americans is relatively recent. If the United States were neutral between Israel and Palestinians, terrorists would contrive new arguments to justify jihads, for example, United States ties with Egypt, Saudi Arabia, India or Indonesia. Nations with sympathies towards Palestinians, such as Spain, enjoy no immunity from Muslim terrorists.

Muslims enjoy more religious freedom in the United States than they would in an Islamic theocracy like Afghanistan under Taliban. Mosques may be erected, private schools may be opened, and reasonable accommodations for Muslim practices are required in the workplace. No Muslim, irrespective of gender, is punished for flying a kite, playing chess, rejoicing at weddings or driving a car. Shi’ites do not shoot Sunnis or vice versa. And a Muslim who chooses to convert does not encounter the death penalty. The religious freedom of Muslims is threatened not by the United States but by the terrorists who professedly are fighting to protect Islam. In sum, the root causes of Islamic terrorism are as phony as were the root causes of Hitler’s belligerency.

Freedom of speech would be undisturbed by criminalizing the condoning or glorifying of terrorism. The latter celebrates the indiscriminate employment of violence or coercion against civilian populations to effectuate political change. The overriding purpose of free speech, in contrast, is to protect reasoned discourse in the search for political truths. No social good is advanced by condoning or acclaiming terrorists, but their social danger is alarming: namely, motivating the impressionable, alienated or semi-demented to suicide bombings or sister villainies. Thus, the Finsbury Park clerics ignited the terrorism of Richard C. Reid and Zacarias Moussaoui, and Pakistan’s madrassas inculcate Islamic fanaticism. The correlation between excusing or championing terrorism and the creation of terrorists is not absolute. But it is sufficiently close to justify punishing the encouragement. All that would be lost would be Bobby Fisher-like gratifications over the savage killings of innocent civilians by terrorists who despise the freedoms most cherished by civilized peoples.

The concern that a terrorist is indistinguishable from a freedom fighter is misplaced. Their objectives are opposite. One seeks to destroy individual rights and liberties. The other seeks their recognition and vindication. One feels no compunctions against the slaughter of innocent civilians. The other recoils from such savagery.

The United States Supreme Court should jettison its holding in Brandenburg v. Ohio (1969) that bestows First Amendment protection on “advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That is akin to saying that lighting a fuse scheduled to trigger an explosion in five minutes can be made illegal, but that if the burn time is five weeks, nothing can be done. Like “fighting words” held unprotected in Chaplinsky v. New Hampshire (1942), expression that condones or glorifies terrorism is “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit derived from them is clearly outweighed by the social interest in [safety and security].”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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