By Stephen Cheney
In conflicts, democracies are always to be found doing catch-ups with the advantage to the aggressor, the first attacker. The first attacker usually being a dictatorship, whether or not the dictatorship hides behind a more acceptable name, or a false democratic system with rigged voting, only one candidate, or a religious system that pledges universal love but disavows democracy. Democracies use diplomacy and negotiation in the hope of peace. Dictatorships use diplomacy and negotiation to gain time to resource war.
Democracies need some adjusting to their systems of prosecution to both ensure the incarceration of terrorists, especially to prevent terrorist acts from happening at all, and guarantee the freedoms of citizens from wrongful accusations. For the powers needed to deal with Terrorism need to come willingly from citizens wary of losing their cherished freedoms.
Democracies are not at all designed to contest dictatorships nor guerrilla warfare of the type that terrorists use. Democracies are designed, in their open competitive systems, to prosper in an environment that is a surround of other similar democracies. Openness is simply used unfairly and insidiously by criminal elements, criminal governments and criminal terrorist types; they are adept at using the law to get around the law. In warfare (or competition where criminals are involved) there are no rules, no respect, no mercy. In criminal contests everyone is treated either as a criminal or as a victim; that is their outlook. In democratic contests, such as in court, everyone is treated as innocent and yet there is blood on the ground; proving guilt or criminal intention can be so much harder than getting off on a charge due to the defaulting murky sea of doubt. In the dark, there are more empty spaces than there are glimmers.
The current three main categories of law are Civil, Criminal and Military.
- Civil law demands liability on a hurt, even a hurt to an aggressor, and has a special focus on probabilities rather than on evidence.
- Criminal Law has a focus on evidence available after a crime, only penalizing in the aftermath, not preventing crime. If the threat of jail actually prevented theft or murder there would already be hardly any such injustices.
- Military Law, for instance, in Martial Law, has a focus on preventing criminal activity, such as riots and looting; and, for success in international conflicts, it preserves national security by denying public access to classified military information.
I would argue that in modern times of crisis we now need to accept a fourth category of law: Anti-Terrorist Law, that runs an Anti-Terrorist Court separate from other courts. Its focus utilizes some aspects of the other categories: like Military Law it must preserve national secrets in a closed court and it exists to Prevent serious crimes – such as the slaughter of citizens on a large scale – rather than to just penalize after an event. Like Criminal Law, it must weigh evidence such as is available; but like Civil Law, it must have a focus on weighing probabilities before an act happens as it is vital for ensuring national security and public safety by being designed to try to prevent terrorist crimes, condemning on factors other than strict evidence. Conviction to Prevent: where the subject has proven Motive and Means but usually as yet no Opportunity to act. There may be no actual damage evidence before the Anti-Terrorist Court. The court may have to weigh on Capabilities, expressed Motives and Probabilities. A known motive becomes more prominent in the weighing: as evidence of damage, a la Criminal proceedings, may not be available. Anti-Terrorist Law with different court requirements and procedure comes out of the need for public safety and the survival of a civilised society. No society can prosper if it does not recognize a deadly enemy and by adapting its legislation look out for its own survival.
As there arises a conflict between restricting terrorist activity on one hand and by the restricting of democratic freedoms on the other, a regulator is required to ensure that a government does not use its Anti-Terrorist Laws for a self-serving political dominance of its citizens. The delicate balance of democratic principles versus practical principles warps democracy into employing some of the methods of a less free society. If you don’t like to kill and yet your enemy kills, then you have to adapt and adopt unpleasant policies, and kill, or all that will remain in the victorious enemy and democracy dies with a naive lack of understanding and the initiative to act, a form of suicide by stupidity. As is said: War does not determine who is Right, but who is left. The world does not care who remains to live on, and what wonderful civilizations once were that through closeted inwardness and inactivity no longer exist.
Thus, I propose, as in the example of ancient Rome (where much of the West’s present laws originate), that Tribunes be appointed/voted to be present in the sessions of every Anti-Terrorist closed court case, to safeguard citizens against any excessive injustice. Citizens, if they are to be asked to give up some rights, need first a reassurance that the innocent will not suffer false accusations as a consequence. The Tribunes, a balance of power insertion, would need adequate powers legally granted to them, and be vetted as persons capable and, based on their dedicated history, trusted as honest by both the government and the people. They would need a top secret clearance capability. They will need training. The government has a major responsibility and need to ensure public safety, and the public has a need for confidence in the government’s claims of necessities and that public freedoms are held in the highest regard by that government. So public freedoms need to be enshrined and not shrouded.
The powers that a Tribune should have and how a Tribune should be selected/voted and trained need some debate and presumably ongoing adjustments. The position should not be so restricted that their task cannot be done. In court, IF the ‘evidence’ required for the conviction of a Terrorist, as legislated (which cannot just rely on evidence alone as that may not be to hand, but at least needs sufficient probabilities and motivation), is found in the opinion of a Tribune to be not satisfactory, then the Tribune can publicly state that and the whole matter then have to be reviewed (by whom and how, to be worked out) in the aim of preventing any government dictatorship tendencies and so retain public confidence in government. A Tribune is an alarm and extra safety valve; a guardian of the people.
Our courts, based on the Westminster system of two-sided debate by learned arguers, need an independent third party in-house to watch over them, so the lop-sided personal skills of each side, which are never exactly equivalent, don’t impede justice.
(Image: Military Court - Military Archives)