Constitutional Democracy Colloquium

Because no act of terrorism has yet destroyed a liberal democracy but acts of parliament have closed a few, Americans should ask if the new U.S. policies, laws, and practices in reaction to the attacks of September 11, 2001, are more threatening to their liberties than Osama bin Laden’s al Qaeda.

Edmund Burke, were he alive today, would say they are, judging by his opposition to the British policies that caused and lost the war against American independence. In his A Letter to the Sheriffs of the City of Bristol in 1777, we can see the line of reasoning that he would voice today against the Guantánamo incarcerations, military tribunals, the use of the “terrorism” label, and the Patriot Act. He subjected the Parliament’s American Treason Act to blistering criticism, noting that it was the ninth in a series of such ill-advised laws enacted to support its American policy, adding dryly that “our subjects diminish as our laws increase.” Today he could say to Americans that “your allies diminish as your counterterrorism laws increase.”

Burke was outraged that the American Treason Act provided for a partial suspension of habeas corpus and enabled the king’s “administration to confine, as long as it shall think proper, those, whom that act is pleased to qualify by the name of pirates.” Thus they could be “. . . detained in prison . . . to a future trial and ignominious punishment, whenever circumstances shall make it convenient to execute vengeance on them under the colour of that odious and infamous offence.”

If one thinks of the Guantánamo prison and changes “piracy” to “terrorism,” then Burke’s charge sounds surprisingly contemporary. The “terrorism” label is a source of great mischief in U.S. policy today. So-called acts of terrorism are crimes if committed within a U.S. jurisdiction; they are acts of war if committed from abroad against U.S. citizens or interests. In other words, we have more precise terms for so-called terrorist acts, words far more appropriate for legal statutes. Terrorism is a political label intended to whip up anger against one’s enemy, not to ensure justice in the due process of law. Shouting furiously at the world about the evils of “terrorism” makes the United States look hypocritical, if not downright silly and incompetent.

By the Bush administration’s definition of the word, Iyad Allawi, whom it supported as the interim prime minister of Iraq, is a terrorist, one supplied with car bombs by U.S. intelligence officials several years ago for use against Saddam Hussein’s regime in Iraq. To point this out is not to criticize the policy-except for its fecklessness-but to remind us that the United States is not always averse to terrorism. When Senator Abraham Ribicoff enrolled a bill in 1979 against “international terrorism,”...