After the terror attacks of 9/11, President George W Bush declared the United States’ response to be a ‘War on Terror’. Bush’s approach was fundamentally correct.
After the terror attacks of 9/11, President George W Bush declared the United States’ response to be a ‘War on Terror’. Whilst the smoke still lingered over Ground Zero he articulated the view to Congress that the threat to Al Qaeda was a military threat from an enemy of his country to be fought by military means, rather than a criminal gang to be tackled by international law enforcement measures. The most iconic symbol of this approach is the sight of orange jump-suited caged detainees in Guantanamo Bay. This approach has often been condemned as creating a ‘legal black hole’ that undermines the claims of western democracy to moral superiority over their attackers.
However, Bush’s approach was fundamentally correct. Conventional law enforcement is an utterly ineffective tool for tackling Islamic terrorism for at least three reasons. First, the threat of punishment is manifestly absurd when deployed against would be suicide bombers or religious zealots. Second, the rights and procedural protections that it is proper to give a suspected criminal, following the adage that it is better that ten criminals go free than that one innocent person is convicted, is far too indulgent in cases where the state is trying to prevent mass casualty attacks by its self-declared enemies. A third problem, and one relevant to jihadis’ and their brides returning from foreign battlefields, such as Shamima Begum, in the news this week, is that many have actually committed no specific criminal offence in the UK under domestic law - or no offence commensurate with their wickedness or the threat they pose. We appear to have learned nothing from the case of Salman Abedi, the Manchester-born Libyan who was rescued by the Royal Navy from the Libyan civil war in 2014, only to show his gratitude by killing twenty two innocents at the Manchester Arena in three years later. If the state watches and waits until the moment a car swerves off the carriageway onto the pavement or a kitchen knife is drawn, it will have waited for far too long.
In fact, English law has an entirely appropriate legal measure that has remained unused since the Second World War: the offence of treason. A person commits high treason if, inter alia, they ‘levy war against the sovereign and adhere to the sovereign’s enemies giving them aid or comfort’. This is precisely what ISIS fetishist Shamima Begum has done.
Moreover, whilst treason may be tried by a jury in a normal criminal court, there is historical precedent for it to be tried outside the normal scope of criminal procedure, such as by parliament or the infamous, but actually much maligned, Court of the Star Chamber. Such special courts would enable the state to rely on intelligence gathering without compromising methods and sources.
The offence of treason is flexible enough to cope with a wide range of activity, some of which may not otherwise be illegal under English law. It also reflects the true wickedness of British jihadis, who are not merely misbehaving within our society, but showing active enmity to that society stemming from an external allegiance. ‘Traitor’ now has an archaic ring to it, but the term is eminently accurate to describe the jihadi enemy within. The UK has no need of jumpsuits and cages; only the will to use the legal means developed by our ancestors to defend our tolerant society from those that have made themselves its enemy.
Paul Ellis, Legal Spokesman, For Britain