Choosing between the letter and the spirit of the law

We make laws to reflect our values and to protect ourselves from those that would undermine them.  For instance, we say that murder is a crime because we value life.  We have laws against the theft of personal goods because we value our property.  In a more controversial vein, we have hate laws because we recognise that violent speech can foster violent action and destroy the societal fabric.

We also have laws that deal with terrorism. In Canada in particular, we have seen a flurry of legislation in the past few years as our security and intelligence agencies have been given more powers to thwart terrorism.  Some of these powers make sense while others have been subject to great debate as there is disagreement in this country on how intrusive and Orwellian certain measures are.

In the end, the law serves us, not vice versa.  It is incumbent on all of society to decide what laws we need and how should be applied.  We vote for politicians who enact legislation – if we don’t like what they do, they are turfed out in the next election.

It is also crucial that our judiciary has a free  hand in interpreting the law.  We don’t want laws to be politicised by the party that happens to be in power.  It is important to remember that the independence of the judiciary is a fundamental pillar of democracy.  That’s why we have trials to determine guilt.  In other systems, the state says whether you are guilty or not, and that’s that.  Furthermore, judges need wiggle room in applying the law.

The need to apply law in a logical, coherent fashion came to my mind the other day when I read that the British Library had decided not to proceed with a planned project to host archived documents of the Taliban regime in Afghanistan since the mere possession of this material would contravene anti-terrorism laws (you can read The Guardian article here).

Here, the law is truly an ass.  The British Library has no intention to use the Taliban documents to promote terrorism.  The collection would have been of inestimable value to scholars over time and as newer extremist movements arise.

Other academics have faced similar challenges as they try to study terrorism, often using primary sources. True confession: I have every issue of Inspire and Dabiq and a whole filing cabinet full of the writings of terrorist ideologues such as Ibn Taymiyyah, Sayyid Qutb and Abdallah Azzam.  As a former terrorism intelligence analyst, I would hope that my intentions are seen as honourable.

Believing that our security agencies have to monitor and crack down on every single use of terrorist material is both inane and a tremendous waste of limited resources.  I recall one instance where the Web browsing practices of an individual came to the attention of one country’s authorities only to turn out that the individual was an academic studying terrorism on-line.  You see, here’s the conundrum: you have to access primary sources to understand terrorism trends but if you access those sources you are committing an offence.  Surely there has to be a better way?

If you will pardon a mixed metaphor, we need to apply the law like Solomon did when he ruled on which mother had given birth to a baby: we don’t need to throw that same baby out with the bathwater.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

Leave a Reply