Scenario one: someone posts on the Internet step-by-step instructions for building a crude weapon of mass destruction, or act of bioterrorism.
Scenario two: someone stands in the street with a sign that says “America deserves to be bombed,” or “Americans deserve to die,” or even “I will bomb America.”
Scenario three: in the wake of a terrorist attack, someone goes to a church group meeting in a conservative American community and urges them to “take matters into their own hands” and to drive to a nearby Muslim community.
No country has guarded speech so fiercely as America and yet now, as Guantanamo prisoners are beginning to be transferred and released, we confront the issue head-on: is dissident speech intolerable when it comes from terrorists? Who qualifies as a terrorist? What qualifies as dissident speech? And how are courts to treat this perimeter while it is in process of being drawn?
When President Obama announced intent to close the facility and disperse all of its prisoners by January 2010, a question seemed to lurk beneath the cozy surface of popular approval. Of course Guantanamo has taken on an increasingly negative persona; Abu Ghraib and the disturbing John Yoo memo were further testimony. But once we drive beyond the theoretical, the question, of course, is “now what?,” because once we dispense with the prisoners who seem most obviously wrongly detained, we will get to those who just might constitute real threats.
It has become a struggle to find a home even for those prisoners who we have long known to be falsely imprisoned, such as the Uighurs. In fact, two weeks ago Congress voted to maintain funding for Guantanamo, with no movement towards accepting detainees released into the United States. Four Uighurs found refuge in Bermuda June 11; one national of Chad and one of Iraq were transferred to their home countries, the Department of Justice announced the following Thursday; and three Saudi Arabian detainees have been returned to their home country. Now, Palau anticipates thirteen Uighurs, Portugal will welcome two or three former detainees. But now that the easy cases are done, we are coming to the hard parts about closing Guantanamo: how do we understand, protect or prosecute dissident speech in an age of terror?
Until we develop a policy for terrorist evidentiary standards, most detainees will go into appeals court limbo indefinitely, not only wasting government resources and precious years of people’s lives, but probably also crossing constitutional lines and with no method to the madness.
Ahmed Khalfan Ghailani, charged with murder and conspiracy in connection with the 1998 bombings that killed 224 people, was, earlier this month, the first detainee to be brought to US courts for trial. Ghailani’s records show that he confessed at a 2007 Guantanamo hearing to having helped with the 1998 Dar es Salaam embassy bombing, yet has consistently denied firsthand involvement in the attack, claiming that he was not aware of the complete plans or even what the target was. Even if his confession is admissible in a court of law (which is not certain by any means), this confession places him within the realm of conspiracy conviction. The burden of proof required for any crime resulting in incarceration—especially prolonged incarceration—is intentionally high. And given the unique delicacy of national security sources (confidentiality of US information trails, informants that cannot be revealed and witnesses that cannot be transported to testify, timeliness and potential statutes of limitations), the First Amendment charges of speech and association may survive as the only viable charges.
Laws against terrorist speech may be tempting—and seemingly necessary. Other countries have criminalized terrorist speech, including Israel and the UK. The UK’s Prevention of Terrorism Ordinance No. 33 of 5708-1948 extends criminality to a person who “publishes, in writing or orally, words of praise, sympathy or encouragement for acts of violence…or [in] support of a terrorist organization.”
But before we take this step, let us be wary: Iran’s response to protesters crystallizes the danger of criminalizing anti-government speech. If we criminalize antigovernment speech in the name of counterterrorism, what cost does that muzzle come at? And what value is the First Amendment if it cannot tolerate dissent against government?
We have often reassessed our protections during war— as Justice Frankfurter wrote in 1951, “The right of a government to maintain its existence—self-preservation—is the most pervasive aspect of sovereignty.” Of course here, Frankfurter was affirming a conviction under the Smith Act—which authorized the executive detention of any individuals believed to have “propensity for espionage or sabotage”– for Dennis, general secretary of the Communist Party USA.
There is no panacea; just as in many aspects of law, the system will always reflect (and we hope, at times, rise above) our imperfect humanity. So the question lurks: in what manifestations is terrorist speech and association criminal? And if we criminalize it today, what does that mean for our world tomorrow? As in Eisenhower’s parting advice, eternal vigilance is the price of freedom. We may be forced to sacrifice some freedoms, but we certainly ought to be cognizant of the cost of retreat from our First Amendment protections, not for terrorists’ sake but for our own.