Unhealthy balance sheet

IF we conducted an audit of civil liberties, the result would go something like this. If you are an alleged terrorist detained at Guantanamo Bay, suspected of waging murderous jihad against the West, you can count on a certain class of vocal Westerners defending your right to a fair trial. Fair enough. But if you’re a right-wing commentator who publishes views that may offend the feelings of a minority group, don’t count on much support for your rights: your right to free speech or your right to a fair trial. Go figure.

Before we nut out that grotesque hypocrisy, it’s worth considering whether the US Supreme Court’s decision last week is the terrific win it appears to be for terrorism suspects.

In a 5-4 decision, the Supreme Court held that foreign terrorism suspects detained at Guantanamo Bay in Cuba have constitutional rights to challenge their detention in US courts.

In balancing the principles of civil liberties and national security, not all judges agreed the rights of Gitmo detainees should prevail.

Justice Antonin Scalia said: “The nation will live to regret what the court has done today.”

As The Wall Street Journal’s James Taranto noted, for all the wailing about the evils of Gitmo, “perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the Government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it.”

And as Chief Justice John Roberts concluded, the majority’s decision was no win for democracy. Stripping Congress of power, the American people lost “a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges”.

For now, though, supporters of the Supreme Court decision have celebrated it as a grand victory for civil liberties. In triumphant tones they cite the words of Justice Anthony Kennedy. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Perhaps the champions of the civil liberties of detained terrorism suspects could cast their eyes over another trial involving a different civil liberty.

It’s too bad that “in extraordinary times”, the right to free speech has been on one heck of a speedy downward trajectory.

In Canada, columnist Mark Steyn and Maclean’s magazine have been hauled in front of British Columbia’s Human Rights Tribunal. They have been accused of “flagrant Islamaphobia” after the magazine ran extracts from Steyn’s best-selling book American Alone. The book explores the West’s demographic challenges arising from different birthrates of Muslims and non-Muslims. Some Muslims were outraged by such talk and by Steyn’s reference to a Norwegian imam who said that Muslims bred “like mosquitoes”.

You could not make this stuff up if you tried. It’s a show trial. Canadian human rights tribunals have a 100 per cent conviction rate on so-called “hate speech” cases. BC’s tribunal can order Maclean’s to stop publishing Steyn’s articles and, indeed, any other articles likely to expose Muslims to hatred or contempt.

Think about that. Pre-emptive state censorship means that opinions about Islam’s relationship with the West have effectively been banned because they offend some Muslims.

Pumped-up activists are wasting no time in exploiting Canada’s feeble appeasement. Khurrum Awan, one of the main witnesses against Maclean’s, told the Canadian Arab Federation last week that the Canadian press needed more Muslim voices instead.

Muslims had to “demand that right to participate” in the national media, Awan said. “And you know what, if you’re not going to allow us to do that, there will be consequences. You will be taken to the human rights commission, you will be taken to the press council, and you know what? If you manage to get rid of the human rights code provisions (on hate speech), we will then take you to the civil courts system. And you know what? Some judge out there might just think that perhaps it’s time to have a tort of group defamation, and you might be liable for a few million dollars.”

And you know what? Don’t count on this being a wacky ambit claim. The West is falling over itself to accommodate even the most precious and perverse sensibilities of minorities. As Steyn said, “The problem with so-called hate speech laws is that they’re not about facts. They’re about feelings.” The result is a chilling restriction of free speech.

Here in Australia, NSW Bar Association president Anna Katzmann SC has been quick to defend Australia’s hate speech laws as a justifiable limitation on free speech. But remember where hate speech laws take us. A few years ago, two Christian pastors were taken to court under the Victorian Racial and Religious Vilification Act for vilifying Muslims for criticising aspects of Islam. While the case was tossed out on appeal, why were these two men hauled over the legal coals in the first place for simply voicing concerns about Islam?

Stephen Boissoin was not so lucky. In another example of the state’s powers of coercion, last month the Human Rights Panel of Alberta in Canada imposed a lifetime ban preventing this Christian preacher from voicing his views about homosexuality “in newspapers, by email, onthe radio, in public speeches or on the internet”.

When human rights are stretched to include the right not to be offended, the result is a deadly bullet to free speech. As The New York Times explored last week, there is a growing trend in many Western countries, Australia included, to curtail free speech in the name of social cohesion.

But as Harvey Silverglate, a civil liberties lawyer from Massachusetts, told the Times, “Free speech matters because it works.” Free debate, not censorship, is the key to combating hate speech, particularly after September 11, he said. “The world didn’t suffer because too many people read Mein Kampf. Sending Hitler on a speaking tour of the US would have been quite a good idea.”

Like a nervous parent too afraid to say no to a pushy child, the West’s readiness to slay free speech on the altar of minority sensibilities only encourages more demands to limit open debate.

According to Pakistan’s Daily Times, Pakistan is sending a high-level six-member delegation to the European Union headquarters in Brussels. It will be asking EU countries to amend free-speech laws to stop the printing of blasphemous caricatures of the Muslim prophet Mohammed and anti-Islam films such as the one recently produced by Dutch MP Geert Wilders. Let’s watch which way the EU goes.

The balance sheet on the West’s commitment to free speech could do with a positive entry. But don’t count on it. Unless, that is, those who so vocally defend the rights of suspected terrorists start defending, with equal enthusiasm, the rights of those with whom they disagree.