To alleviate a dilemma.
By Paul J Cella Posted in American political tradition | sedition | the Jihad | War — Comments (12) / Email this page » / Leave a comment »
An article in the Washington Post details the difficulties faced by prosecutors in achieving guilty verdicts in federal terrorism cases. The dilemma, from the prosecutor’s perspective, is simple enough: You have a cell of conspirators plotting murder and mayhem; should you intervene early, with arrests and formal charges before the plot matures, or wait until its maturity virtually insures guilty verdicts? If you choose the former, you indemnify against the possibility that the plot will be carried out under your very nose, that, in fine, the intervention will come to late; but in so doing you may find yourself with a weaker case. If you choose the latter, interdicting the plot in its later stages, your prosecution will be far easier, but you magnify that risk that it will succeed despite your best efforts. Patience may issue in disaster; swift intervention in a failed prosecution.
It seems to me that a possible alleviation of this dilemma lies in new legislation: Let us make the plot itself a more serious offense, one that is easier to prosecute and carries a more onerous penalty. That is to say, let us proscribe the mere preaching or advocacy of jihad against America.
More precisely: Let us amend 18 U.S.C. § 2385 to reflect the current threat from Islam. Let us establish that “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States … by force of violence” in accordance with the Islamic doctrine of Jihad; that whoever, in accordance with the doctrine of Jihad, “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States” shall be “fined under this title or imprisoned not more than twenty years, or both.”
Let us, in short, make the preaching of Jihad alone a serious federal offense under our extant sedition statute, conviction of which will lead to heavy fines and, in most cases, a considerable prison term.
It is true, of course, that sedition is not often prosecuted in this country. Whether this is wise as a general proposition I leave aside, in order to set forth a more specific proposition: sedition should be more often prosecuted against Jihadists. We should announce our intention — and back it with specific legislation — to apply sedition law prejudicially against conspirators within the Islamic religion.
I do not present this as a silver bullet. The Jihad-sedition law will not remove the dilemma described in the Post. But it will give prosecutors a useful tool — one which will diminish the likelihood that early intervention in a Jihadist plot will result in a failure to convict. The mere plot itself, quite independent of its maturation toward its ultimate goal, will be enough to put the conspirators behind bars for a long time.
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To anticipate the common objection that this sort of legislation and prosecution is alien to the American tradition of Free Speech, I say: to the contrary. The prosecution of sedition, whatever our dear Liberals may think of it, is a ubiquitous feature of the American political tradition. We have prosecuted Jacobins, Copperheads, polygamists, anarchists, Fascists, Nazis, and Communists, just to name a few. Moreover, historical comparison is available for those who care to consider it. We threw a handful of Jacobin sympathizers in prison in the late 18th century; and managed to avoid the conflagration that those energumens eventually visited France, and indeed, upon the entire world. We outlawed polygamy, demanded loyalty oaths from Mormons in the Utah Territory, and enforced these measures with sufficient vigor to fill half the prison population of that territory with polygamists; and that ugly episode had a happy ending when Mormonism abandoned the wicked doctrine of polygamy. Need I even recite the record of slaughter inflicted by the Fascists and Communists where they were allowed to flourish, under the umbrella of tolerant Liberalism?
My point is merely this: the rise of organized sedition, animated by armed doctrines and implacable fanaticism, is a political problem that does not admit of easy solutions. The path before us is a treacherous one indeed. It is of course true that many innocent men were caught up in our various crackdowns on sedition. It is true that many mere cranks and eccentrics were carried in the train of proscription and enforcement. But I for one will stand on the record of my country in taking these threats seriously early, before they matured into civil war and upheaval.