When No Law Means No Law
The following Q&A with CounterPunch readers (who are opinionated and engaging souls) leads to two conclusions:
(1) the State Department’s letter of justification for adding Al-Manar to the Terrorist Exclusion List (TEL) should be immediately de-classified and published in the Federal Register;
(2) the Patriot Act should be amended to require the de-classification and publication of all reasons for TEL designations that are based on public acts of speech.
Question: Is there some reason why your article entitled ìThe New Zeus on the Blockî on counterpunch.org contained every relevant fact about the issue surrounding Al-Manar, with the exception of the actual content that is responsible for banning the network? Clearly the freedom of speech does not protect one’s right to disseminate lies and propaganda?
Answer: The answer is classified. According to the Patriot Act, the State Dept. is required to distribute a ìclassifiedî letter of justification one week prior to designating a group as a ìterrorist organization.î Then, on the day that the designation takes effect, a notice appears in the Federal Register. The Dec. 17 notice in the Federal Register about Al-Manar doesn’t (and doesn’t have to) set forth any of the ìclassifiedî reasons. We’ll get back to the USA directly, but first a word about France.
The French ruling on Al-Manar is interesting, because it comes through an administrative court known as Council of State. Reports about the Council’s ruling on Al-Manar focus on the following incident in which a commentator reportedly purveyed Zionist conspiracy theories: ìThe commentator, who was defined as an expert on the ëZionist entity’, described at length how Israel has been trying to spread dangerous diseases, including AIDS, in the Arab world.î
So far, I have not seen very much information about the French court’s proceedings or about the legal traditions that inform French law. For instance, what if I further explore on this page the pros and cons of the Al-Manar commentary about the spread of AIDS? Could this page be banned in France? Or, what is being talked about when the commentator speaks about a Zionist entity? Is this how Al-Manar refers to the state of Israel? Under French law can states claim protection against defamation? There is a lot I don’t know about French law.
Returning to principles of the First Amendment in the USA, I happen to believe that a world without Zionist conspiracy theories would be a better world. But a world where Zionist conspiracy theorists are suppressed by state agents for ìinciting terrorî is a chilling one. As reported in the media so far, Constitutional justifications for restricting Al-Manar’s freedom of speech have yet to be publicly set forth. If the State Dept. is acting in a Constitutional manner, I would expect stringent standards regarding speech that ìincites".
The Al-Manar ruling appears to designate a ìterrorist organizationî based solely on public acts of speech. As far as I know, this is new.
In neither the State Dept. briefing of Dec. 17, nor in news reports about the terrorist designation in the USA, were examples of content given that would qualify for ìinciting terrorism.î As for what the First Amendment protects, indeed lies and propaganda are broadly tolerated, unless they libel or incite. As far as I know, "libel" does not pertain to states. As for ìincite,î the ghost of Abbie Hoffman is here to warn you, that’s a very serious word.
Until a fuller account is given for the Al-Manar designation, we have good reasons to be seriously concerned, because the treatment of Al-Manar is a very practical test of the rights to free speech that will be respected under the jurisdiction of the USA. The First Amendment bans administrative censorship of speech carried out under laws made by Congress: ìCongress shall make no law.î If the Al-Manar ruling is to be defended as a justifiable exception to First Amendment protections, the burden of proof must be quite tall. And given the legal precedents that may be set by the Al-Manar example, I believe citizens of the USA are entitled to the gravest procedural courtesies. Instead, I perceive more power, more arrogance, and more state control operating under cover of ìanti-terrorismî legislation.
While one may ring with the popular chime that state intelligence about certain acts of terrorism has some basis to be counted as ìclassifiedî (for purpose of protecting sources, etc) what can be the basis for classifying ìacts of speechî that have been previously broadcast? What possible sources could the State Department be protecting? The Al-Manar file should be immediately de-classified and published in the Federal Register.
In addition, the case of Al-Manar indicates that the Patriot Act should be amended. Whenever a terrorist designation is made on the basis of public acts of speech, the State Department should be compelled to divulge its evidence.
The CounterPunch reader writes back: I live in Canada where thankfully they are not carrying this satellite station, and we have quite stringent hate-crime laws which I feel comfortable would keep this garbage off our televisions. I do not disagree with you when you state that using terrorism legislation to punish this broadcaster is not the most logical way to do it, because technically this is not terrorism in and of itself, although I can see how it could very easily incite terrorist actions. If you would like an example I will point out to you the recent arson attack in Montreal Quebec; an 18 year old Montreal man of Arab origin set fire to a Jewish Day School and Library. He left a note at the scene claiming that the attack on the school was punishment for Israel’s assasination of Sheik Yassin. Clearly this is terrorism, and it is almost certainly incited by one-sided news reports from channels such as Al-Manar. Channels that deliberately refuse to show that there are two sides to a conflict and depict only one villain.
What I’m curious to know however, is how you can criticize a government for doing everything it can to get this poison off the airwaves. Freedom to express one’s opinion is one thing, but the lies this station spreads to further its political objectives are dangerous. They are not lies which espouse political action, but rather racial hatred. In your article you discussed the removal of the television station and the reasons why it was wrong, but you never discussed the reasons why the station was pulled and whether they had merit. I didn’t find it a very balanced report.
And I Reply That: Regarding structures of law that discourage hate speech or war propaganda, I am ready to listen. But this is not the same thing as asking a state (or an empire for that matter) to do everything in its power. As Mary Ratcliff has pointed out in a Dec. 15 post at The American Street, the Bush administration is using the charge of "propaganda" to prosecute some parties, while it openly organizes "propaganda" campaigns at home and abroad. Based on what I know so far, it appears to me, and to the next CounterPunch reader below, that the Al-Manar ruling exhibits a blatant double standard for what counts in the Bush adminsitration as ìincitingî and what does not:
Another Reader Writes: Started reading your great piece on Al-Manar and it reminds me of the same BS that the Govt used for deporting formerly Cat Stevens and the so called charity group! Notice, if it’s white, right wing who baits people to do their dirty work as Mr. Byrd, Matthew Shepard, Dr. Slepian et al who cares?! Actually am sure the Triumpherate in the White House and their foot soldiers are celebrating as in a touchdown!?
YOUR articles are for contemplating and learning too!!
Reply: Dear Reader, I love the way you spell Triumpherate. Indeed who or what can this White House not conquer once it sets out? As you suggest, the Bush team might even have effects against racism, homophobia, or misogyny in America if it took such things to be any of its business. Now, returning to the example of terrorist crime and the things that incite it:
PS: In a freebie web offering at Stratfor.Com, George Friedman says in a Nov. 17 webinar that Europe has been traumatized by the Amsterdam street killing of filmmaker Theo Van Gogh (great grand nephew to the painter). The killing has been attributed to a man dressed in a traditional Moroccan jalaba, who was allegedly motivated to retaliate against the filmmaker’s work about violence against women in Islamic societies.
The Van Gogh example sounds like the one given by my Canadian correspondent above, with important differences. In the Canadian example, we have terrorism that attacks anonymous members of a perceived enemy population in retaliation for state actions. In the Amsterdam example, the retaliation is directed against a specific person for acts of expression.
The killing of Van Gogh, says Friedman, has provoked in European civil society a more sympathetic (or less hostile) attitude toward Bush’s war on terrorism. This climate may have something to do with the timing of the French ruling against Al-Manar. If events are linked in this way, then a killing that retaliates against expression is answered by collective, state censorship. The chill we feel in the aftermath of Van Gogh’s murder is answered by the power to chill.
In the Canadian example, my correspondent says that it was probably one-sided news reports about the killing of Sheikh Yassin, not the killing itself, that incited the terrorist response. Therefore, we should shut down the alleged sources of one-sided news reports, not the power to assassinate. This is another discussion altogether. What seems clear however is that nobody has yet asserted a carefully traced link between Al-Manar’s reporting and some specific act of terror.
My Canadian correspondent has led me to sources that say Al-Manar has broadcast programming based upon the infamous Protocols of Zion. On this point, I take at face value claims that the Protocols are anti-semitic. What’s decisive, however, is that the number one Google source for the Protocols is listed at an Australian domain known as biblebelievers. Again, if anyone has ideas about how to lawfully reduce anti-semitic expression, I’m listening. But if anti-semitic expression is enough to make one guilty of inciting terrorism, then we have quite a legal reformation ahead of us. If there is to be such a legal reformation in the West, then I say let the biblebelievers go first.
Meanwhile, says Friedman, French President Jacques Chirac, for one, wants to restore a working relationship with Bush during the second term, because there are things Bush can give him, such as trade concessions and support in West Africa.
I take note of Friedman’s claims as I think about the synchronized timing of French and American responses to Al-Manar. But I also consider that something profound is taking shape in the nexis of profit and power that involves communication companies such as France Telecom, Eutelsat, and Intelsat, who have been sublimely compliant.
Thinking about transatlantic satellites is like thinking about opium in Afghanistan, or oil in Iraq. All these things count for money in the bag. State power never overlooks money in the bag. As Alex Jones has helpfully noted in his daily news clips this week, there was a French spy satellite launched over the weekend. "Helios 2A is said to be able to spot objects as small as a textbook anywhere on Earth. Its infrared sensors will allow France’s military to gather information at night from space for the first time." Did the Bush team need some snapshots? Inquiring minds have a right to ask.
Finally, it must be said. The hammer came down on Al-Manar on the Friday before Christmas week. This ensures that nobody but receptionists will be working full time for many days to come.
And this just in: CounterPunch reader asks, "Time to dust off the shortwave radios?"
GREG MOSES is editor of the Texas Civil Rights Review and author of Revolution of Conscience: Martin Luther King, Jr. and the Philosophy of Nonviolence. His chapter on civil rights under Clinton and Bush appears in Dime’s Worth of Difference, edited by Alexander Cockburn and Jeffrey St. Clair. He can be reached at: email@example.com