Reactionary and dangerous
Mike Macnair condemns Sajid Javid’s cheap grandstanding and critiques proposals to ‘modernise’ treason law
Home secretary Sajid Javid showed what he thought of the brief media furore round the death of Shamima Begum’s baby, when he said on Monday March 11, in reply to a parliamentary question from Diane Abbott in her role as shadow home secretary, that Begum was “the only person responsible for the death of that child”. Begum had, of course, gone to Syria as a 15-year-old to join Islamic State and was subsequently deprived of her British citizenship by Javid. In the same session, he “suggested he would review and ‘modernise’ treason laws that determine maximum sentences for convicted terrorist fighters.”1
Javid’s decision to deprive her, as well as two other ‘jihadi brides’, of citizenship is pure grandstanding for the benefit of the Tory ranks (where it has gone down well).2 Other (male) British ‘foreign fighters’, less in the eye of the media, have been quietly allowed to return. It is quite likely that the Begum and other cases will not actually pass judicial review, since her supposed alternative Bangladeshi citizenship is severely questionable, and the UK is subject to international obligations not to make people stateless. Even if Begum’s case passes, there are many others for whom such arguments would be hopeless.
In addition, for once Donald Trump made some sense when he said that the UK and other countries of origin should take back and deal with jihadists who went to the ‘caliphate’ from here.3 What gives the Brits the right to dump terrorists born, bred and radicalised in the UK onto other countries? Like demanding the right to export toxic waste manufactured here …
Javid’s other proposal - to “modernise” the law of treason, allegedly for the purpose of dealing with such cases - is a more serious threat. The idea that it is necessary - or would help - to deal with the cases of IS fighters and brides is rubbish. The obstacle to public prosecution of IS supporters is neither the antiquity nor the obscurity of the law: it is the risk of political embarrassment from the disclosures that might result from a trial.
What is actually involved in ‘modernising’ treason law can be seen from the arguments and proposals offered by the rightwing Policy Exchange think-tank in its 2018 pamphlet Aiding the enemy by Oxford academic lawyer Richard Ekins, ex-soldier barrister Patrick Hennessy, Labour MP Khalid Mahmood and ex-soldier Tory MP Tom Tugendhat. Their idea is, first, to relegitimise treason prosecutions (last used in 1945) by ‘modernising’ part of the act of 13524; second, to do so in such a way as to entrench nationalism and define treason as violation of a duty to the nation, rather than to the state; and, third, at the same time, to extend the offence massively, so as to criminalise, for example, ‘legitimising’ ‘attacks’ - which are to be defined as including hacking and disinformation (Russian disinformation, that is, not British disinformation …).
The proposals to ‘modernise’ treason are, in short, part of the drift away from liberalism and towards nationalism and authoritarianism, which is also expressed as Brexit, Trumpism, Hindutva, Polish Law and Justice, the Hungarian Orbán regime, Putinism ...
In what follows I will be arguing that IS militants could perfectly well be convicted under the existing law; and that the ‘modernisations’ proposed by Policy Exchange are specifically ‘spun’ to be nationalistic and over-broad.
Before making that argument, however, I will discuss briefly what I think communists’ attitude to treason laws in general should be. The argument about treason ‘reforms’ will proceed on the basis that we are not on the verge of a struggle for power; and that we are therefore forced to respond to proposals from the pro-capitalist parties, from think tanks, and so on, for ‘reforms’. We respond from the point of view of the interests of the working class in its struggle for political democracy and for its own right to organise independently of the existing state. I will say something about the question of treason laws in general before starting on the real existent law and the reform proposals.
I should emphasise more than usually - because this is a topic very much linked to the question of what ‘revolutionary politics’ means - that what I have to say in this article is my own view, not that of the CPGB.
I leave on one side, intentionally, the ideas of those on the left who have argued that we should support the victory of IS or similar formations as ‘the resistance’ to imperialism in the Middle East. I have written about this issue in the past on more than one occasion and do not have space or time now to do so again. I merely draw attention to the fact that when the ‘brides of IS’ hit the headlines four years ago, I pointed out that IS did not represent a viable strategy to fight US imperialism in the Middle East, but was, on the contrary, an agency of US imperialism’s policy of spreading death and destruction through the region in order to block any political order which might possibly act independently of itself.5
A state is a special organisation in a territory which exercises coercive power over the inhabitants of that territory - at a minimum, to extract taxes from them; usually also to make and/or enforce laws and the judgments of courts. That is, Lenin’s “special bodies of armed men”.6 Of course, states usually do much more than this; but without the coercive power, and hence the ability to extract taxes and enforce laws in a territory, they can do nothing. The state is a special organisation - which means that it has to have a particular form, a constitutional order and an ideology which makes the armed groups more than groups of bandits.
All states therefore necessarily have rules covering the core fields of what, in English, we call treason: that is, prohibiting support for the state’s enemies in war, and prohibiting any attempt to overthrow the constitutional order by force.7
A Communist Party is a revolutionary party. That does not mean that we are necessarily advocates of ‘direct action’ of one sort or another, as much of the far left would have it. What it means is that we are advocates of the overthrow of this constitutional order and replacing the current state, answerable to the capitalists, with a new state, answerable to the working class. In that sense, we are, unavoidably, potentially liable to be attacked as a treasonable project.
It is, to some extent, an answer to this idea to argue, as Karl Kautsky did in 1893,
Social democracy is a revolutionary, but not a revolution-making, party. We know that our aims can only be achieved through a revolution; but we also know that it is just as little in our power to make a revolution as it is in our adversary’s to prevent it.8
The point is simple: no amount of left ingenuity and agitation will cause the state to fall into crisis. It will fall into crisis on its own, through the decay of the capitalist world order. The workers’ movement needs to be there, offering a real, alternative political order, when it does so.
That said, to state that we stand for the overthrow of this constitutional order, even in Kautsky’s sense, has implications which mean that we cannot rule out at some point in the future carrying out what might be seen as treason. The English parliamentary opposition in 1639-41 negotiated with the Scots, who had invaded northern England, to keep up their invasion, in order to force Charles I to summon parliament against his will. The parliament then fought a full-dress war against the king in 1642-48, put him on trial and executed him in 1649. When Charles II was restored in 1660, those who had signed Charles I’s death-warrant were executed for treason. Nonetheless, the opposition in 1688 invited the Stadtholder William of Orange to mount a full-scale Dutch invasion of England.
An early modern English author commented (on the basis of England’s late medieval experience) that “Treason doth never prosper; what’s the reason? Why, if it prosper, none dare call it treason.”
The point here is that we cannot be state loyalists. If the workers’ movement commits itself to loyalism towards the existing state order, we will be unable to offer an alternative when the state does fall into crisis, and the alternative - unavoidably required by crisis - will then be offered by someone else, as, for example, the loyalty of German social democracy to the Weimar constitution let in Hitler (there are several other examples).
Does this imply that communists should advocate the complete abolition of treason (or equivalent) laws? No. We are not anarchists and do not believe in the immediate abolition of the state, but rather in its withering away. ‘Withering away’ will happen through the return of the public power from the “special bodies of armed men” to the public as a whole - by way of overcoming the permanent ‘specialisation of function’ under which some people are permanent state officials, others permanent non-officials. Term limits on public and elected officials, universal military training and service, generalised trial by jury: all these (and other forms) are both means of subordinating a state - still a state - to the working class, and also means by which, as working class rule evolves towards communism, the state as such evolves into mere generalised public power.
But a workers’ state will still be a state, and will still require the power to coerce. If the state does not coerce the capitalist minority, that minority will coerce the workers; capitalists have used non-state organised gangs to coerce the workers before now and will certainly do so again. It follows that a workers’ state will still need to characterise as crimes both betrayals to enemy states and organisations, and efforts to usurp power from itself.9
Communists have to reject loyalty to this existing state. It does not deserve our loyalty and our long-term aim is to overthrow it. But that does not mean that we advocate immediate attempts to overthrow the state by force (like, in the past, those of the German Rote Armee Fraktion or Italian Brigate Rosse). Nor does it mean that we reject loyalty to any state.
It follows that it makes no sense for us to campaign for the total abolition of any treason law. That would be merely campaigning for the present abolition of the state. If the state was not abolished, the core of treason would still be necessary - and hence ‘treason’ would just be rebranded as something else (and probably broadened to catch more forms of dissent: a common current version is “terrorism”).
What we need to do, then, is to defend the idea that the law of ‘treason’ and related rules should draw a line between, on the one hand, immediate armed opposition to the state order, material support to states and groups at war with the state, and attempts to usurp power (by coups, as well as by insurrections) - and, on the other hand, forms of dissent which are not immediate threats to the state power, including forms of direct action, ‘violence’ and ‘intimidation’.
Foreign fighters and brides
I said before that ‘modernising’ the law of treason would not help with prosecuting the people who went to Syria to fight for IS or to become brides for the fighters. The reason is that any obscurities in the Statute of Treasons of 1352 are not particularly problematic for these cases. The offence with which IS fighters and brides could be charged under this statute is that of adhering to and aiding the king’s (for our purposes the queen’s) enemies. In the original, “Ou soit aherdent as enemys nostre seigneur le Roi en le Roialme, dinant a eux eid ou confort en son Roialme ou par aillours, & de ceo proveablement soit atteint de overt faite par gentz de lour condition ...”
In the early modern translation (which appears on legislation.gov.uk): “… or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere, and thereof be [X4probably - proveably] attainted of open Deed by [X5the People] of their Condition …”
In modern English: “Or who shall adhere to the enemies of our lord the King in the realm, giving them aid or strengthening them in his realm or elsewhere, and are convicted of this on proof of an overt act, by [witnesses] of the same social status ...”
On the assumption that IS was an enemy of the queen (ie, of the British state), it would be completely unproblematic to convict British ‘foreign fighters’, or for that matter the brides, of treason under this clause. The whole process of their adherence to IS has been conducted in the full glare of publicity. When William Joyce was convicted of treason in 1946 for making propaganda broadcasts for the German Nazi government, there was a real legal issue about whether he was sufficiently ‘British’ to be prosecuted for treason.10 There was no question about whether he had adhered to the German state or given aid and support to them, or of an overt act - this was all obvious.
The problem is not obscurity in the statute. It is obscurity about whether, in truth, IS is an enemy of the British state. The problem is that there are strong reasons to doubt this claim. In the earlier stages of IS’s history, it is now pretty clear that it was backed by Saudi Arabia and the Gulf states as a tool to counter Iranian influence in Iraq, and later to take over the Syrian opposition movement.11 As recently as July 2018, Robert Fisk has pointed out the western sourcing of a lot of weaponry used by jihadists in Syria.12 In other words, IS has been heavily backed by British allies.
An anti-terror or immigration proceeding could keep these issues hushed up. But the point of treason trials would be precisely to make a big public statement about the disloyalty of the fighters and brides. And a treason trial would inevitably result in defence counsel asking the question: is IS really an enemy of the British state? Hence, there is a real risk of such a prosecution turning out like the 1992 ‘Matrix Churchill’ prosecutions round arms supplies to Iraq in violation of ‘sanctions’, which collapsed when it became clear that the defendants were acting under the direction of British intelligence.13 Given the widespread media denunciations of IS and its ‘barbarism’, facing argument in open court that IS is not really an enemy of the British state would be seriously more embarrassing to government than the Matrix Churchill affair was.
The real problem with applying treason prosecutions to the jihadi brides and others is the danger of exposing in court UK double-dealing in the Middle East. Sajid Javid and the Policy Exchange pamphlet are thus in a certain sense addressing a non-problem. But the pamphlet does propose a reorientation and an extension of treason: a reorientation to nationalism; and an extension beyond its existing scope, to create a very broad, vague crime.
I have said above that the core of ‘treason’ is the ability of a state - in order to be a state, a special organisation of coercion - to prohibit support for its enemies in wartime and the attempted forcible overthrow of its constitution and power. From this point of view it is irrelevant whether the state is national, sub-national or multinational, and whether it is democratic (in any sense), oligarchic-republican or a personal monarchy. The fact that England was a personal monarchy when the statute of 1352 was adopted affected its content, in that to “compass or imagine the death” of the king or the heir apparent, to rape or commit adultery with the queen and to rape or commit fornication with the king’s eldest unmarried daughter are included among high treasons.14 But these aspects, however necessary they may have been to protect the constitution of a personal monarchy, are not at the core of the crime.
The Policy Exchange authors offer a different theoretical basis - grounded, they say, in “the moral foundations of political community” (p11). They argue: “Every human being is morally entitled to be a citizen of a particular state, for the world is divided, politically and legally, into states, which are national political communities” (p13). And:
The law settles the bounds of the national political communities that are states. Thus, international law recognises states and each state’s law of citizenship will stipulate who counts as its citizens. But the law here tracks a social reality: namely that a particular group understands itself to be a people, to hold a defined territory, to jointly be subjects of a shared government and legal system. The foundation of political community is the willingness of that people to live together, to recognise one government and law (p13).
Further, they argue: “The willingness of a people to live together requires them to share a common bond, to be willing to share their resources with and to make sacrifices for one another” (p14).
And more extensively:
[I]t is certainly wrong to infer that we have somehow transcended the importance of loyalty to one’s country. On the contrary, the foundation of peaceful social life is the trust that we have in one another as fellow citizens in a self-governing state (our country) - trust that is undercut when one aids the enemy. One who betrays his or her country in this way breaches the trust of his or her compatriots and threatens to weaken the trust they have in one another. Recognising and denouncing such acts of betrayal as serious wrongs is important to vindicate the trust that citizens (and others who enjoy the privilege of living peacefully amongst us) ought to be able to have in one another; trust that is, as we say, the foundation of decent, free social order (p16).
I have quoted these passages at length, because they represent the core of the argument for treason as a distinct crime offered by the authors. And the gist of this argument is not constitutionalist, but nationalist.
There are two sides to this aspect. The first is merely stipulative: the world is in fact (the authors allege) divided into nation-states; and this “tracks a social reality: namely that a particular group understands itself to be a people ...” The possibility of states which are not nation-states, or not the states of self-identified “peoples” is here stipulatively excluded.
The second is a more substantive argument. It is that the “willingness of a people to live together requires them to share a common bond ...” and that “the foundation of peaceful social life is the trust that we have in one another as fellow citizens in a self-governing state”. The second of these arguments adopts very fashionable social-science and economics ideas about the importance of “trust” - here, as elsewhere in this fashionable discourse, very ill-defined.15
It is in fact a very striking example of the problems with this sort of reasoning. The human species is a zoon politikon: a social animal. We do not have a choice about whether or not to live in social groups, so that our “willingness to live together” is not an issue. The assumption that there is such a choice is what Marx called a “Robinsonade”: a social theory built on Robinson Crusoe as a myth of individualistic production and appropriation.
The traps into which this idea leads in relation to allegiance have been visible for three centuries at least. In the early 1700s, Whig lawyer Jeffrey Gilbert engaged in a correspondence with Tory ‘non-juror’ clergyman Dr Thomas Brett, Doctor of Divinity - who refused to give the oath of allegiance and was hence sacked from his church post - to try to persuade him that the protection he was afforded by the post-revolutionary regime meant that he owed allegiance. Brett’s answer was that he had no choice about accepting or refusing this ‘protection’. Later, in the 1720s, Gilbert became a judge and Brett asked him to intercede with the authorities to allow him to travel to America, where, he suggested, he could go beyond the borders of the English king’s protection by becoming a missionary to the native Americans. Gilbert did not dignify Brett’s letters with more than a formal reply.16
Brett certainly had the better of the argument. As humans, we have to live together in societies. These, in turn, under certain conditions create territorial states (whether city-states, nation-states or empires). It is extremely unusual (and largely only possible for the very rich) to have a choice about whether to live in these or not.
There are degrees of trust in states - not a yes-no trust, which makes political society possible, or its absence. Trust can be weakened, without ceasing to exist, and/or mistrust strengthened. It is true that increasing mistrust is likely to lead to ‘populism’ (suspicion of elite actors), whether left, nationalist, religious or whatever, and towards war (civil or international). However, it should be reasonably clear that what has caused increased mistrust in recent years is the combination of two elements. The first is the systematic and more or less obvious political-elite and mass-media lying - notably around military interventions in the Middle East. The second is the continued maintenance of an economic policy which promotes sharpening inequalities, rather than making the losses caused by collapsing asset bubbles fall primarily on the ‘strivers’, who bid up the asset prices in the boom period.
In this context, artificially asserting (as the Policy Exchange authors do) that the need for trust requires national allegiance - to be symbolically enforced by an updated treason law, built on nationalistic conceptual foundations - will aggravate rather than alleviate the problem. Nationalism of this sort is like the aspiration to the ‘open road’ used to sell cars, but which is in fact productive only of traffic jams: endlessly unsatisfied, and productive of ‘Balkanisation’ and war.
Treason at its core is disloyalty to the state. It follows that it can all too easily swallow up all forms of legitimate dissent. That is the meaning of Stalin’s show trials - but also of the show trials of Tudor England,17 or of the operations of ‘Paul the Chain’ and Mercurius, ‘the count of dreams’, entrapping people in the Rome of Constantius II in the 350s CE.18 The Statute of Treasons 1352 had as its purpose to limit the law of treason, which the judiciary had been expanding in the 1340s.19 In the Tudor and Stuart periods, legislators and royal judges expanded it again - partly by creating new statutory treasons ‘by words’; partly by expanding ‘compassing the death of the king’ into forms of political opposition (in Algernon Sidney’s case in 1683, writing a republican political treatise).20
As communists, we stand for the creation of a state which is answerable to the working class. Because the working class is separated from the means of production, it can only assert itself by collective action. Hence, it is one of the two fundamental lessons of the failure of the ‘Soviet bloc’ that the state can only be subordinate to the working class if the class has the right to organise against and independently of the state.21
‘No treason’ - before the withering away of the social specialisation of function and with it of the state - is an anarchist delusion. However, for the working class to control the state, treason has to be held to its narrowest cores: adhering to the enemy in wartime, and endeavouring to overthrow the state by force.
The Policy Exchange authors’ proposals unsurprisingly move in the opposite direction. Their proposed offence is to include aiding the enemy in “non-international armed conflicts” (p17). And:
[H]ostilities between sovereign states may now often be pursued by means that are analogous to, but strictly fall short of, traditional military operations, such as cyberwarfare. That is, states may attack the UK without necessarily initiating an international armed conflict. No British citizen ought to help, by any means whatsoever, a foreign state prepare for or carry out an attack on the UK (p18).
“Attack” here has become extraordinarily broad. That this is intentional is clear at p31: “Energy, cash, - as bribes - corrupt business practices, cyber-attacks, assassination, fake news, propaganda and indeed military intimidation are all examples of the weapons used to gain advantage ...” Or at p34: “It ought in any case to be a serious wrong for a citizen to help enable a foreign state to threaten the UK’s economic well-being ...” And:
Conversely, there seems to us no need for any exception for humanitarian relief. What would otherwise be lawful humanitarian relief or peaceful protest should be unlawful if, but only if, it is an act designed to aid the hostile state or organisation and intended to help that state or organisation’s military operations or (planning for) attacks on the UK (p39).
Parts of the statute of 1352 are certainly weird to modern eyes. But its restriction of the core crimes to levying war within the realm - efforts to forcibly overthrow the state - and adhering to the crown’s enemies in wartime, are considerably preferable to this ‘modernisation’, which would broaden treason towards the scope of the Tudor-Stuart definition or that of late Roman law. Nationalistic and authoritarian in motivation, the proposals of the Policy Exchange pamphlet should be rejected, even if the alternative is to be stuck with the medieval text.
www.conservativehome.com/thetorydiary/2019/03/over-three-in-four-party-members-back-javid-over-his-begum-ban-our-survey.html. See also Paul Demarty’s article in this paper, ‘From Bethnal Green to Baghuz’ February 21.↩
Discussion at https://verfassungsblog.de/is-trump-right-foreign-fighters-and-the-states-obligation-to-repatriate-them.↩
Listed as ‘1351’ on legislation.gov.uk because by convention all acts of parliament were ‘deemed’ to be passed on the first day of the parliamentary session; it was actually passed in 1352.↩
‘Wrong kind of radicalisation’, February 26 2015. More generally, ‘Anti-imperialist illusions’, March 20 2014, and the articles from 2004-08 referred to there.↩
State and revolution: www.marxists.org/archive/lenin/works/1917/staterev/ch01.htm#s2.↩
A few examples only: R Westbrook (ed) A history of ancient near eastern law Leiden 2003, at index references under ‘Treason’ (ancient middle east); OF Robinson, The criminal law of ancient Rome Baltimore 1985, pp74-78 (ancient Rome); W Johnson (translator) The T’ang Code Princeton 1997, articles 232 (informing the enemy of military operations) and 248-251 (rebellion, sedition and treason) (ancient China).↩
‘Ein sozialdemokratischer Katechismus: 1. Kritik’ Die Neue Zeit 12 (1) #12, December 13 1893, pp361-69 at p368.↩
I have made a similar point in the past about the probable deployment of terrorism by the US against a left government, implying the need for the workers’ movement to make our own choices about repressive measures. See ‘Terrorism, alliances and class independence’ Weekly Worker April 14 2004; ‘From Belmarsh to Rangoon’ Weekly Worker February 3 2005.↩
Joyce v DPP (1946) AC 347, text available at http://uniset.ca/other/cs3/joyce.html.↩
Cf P Cockburn, ‘We finally know what Hillary Clinton knew all along - US allies Saudi Arabia and Qatar are funding Isis’ The Independent October 14 2016; Y Mather, ‘Reaping the harvest’ Weekly Worker December 15 2016; ‘Theresa May urged not to suppress report into funding of jihadi groups’ The Guardian June 5 2017.↩
‘I traced missile casings in Syria back to their original sellers, so it’s time for the west to reveal who they sell arms to’ The Independent July 23 2018. Also ‘Sold to an ally, lost to an enemy’ CNN, February 2019: https://edition.cnn.com/interactive/2019/02/middleeast/yemen-lost-us-arms.↩
A convenient summary and references can be found at https://en.wikipedia.org/wiki/Arms-to-Iraq.↩
BG Robbins, ‘What is trust?’ Sociology Compass 10 (2016) pp972-86, while glorifying trust, stresses its ill-defined character in the literature. M Carey Mistrust: an ethnographic theory Chicago 2017 points to the massive overstatements in the ‘trust’ literature due to the binary belief that trust is present or absent and failure to recognise rational mistrust.↩
See M Macnair, ‘Sir Jeffrey Gilbert and his treatises’, p256 and n77 (the letters cited in the footnote): www.tandfonline.com/doi/abs/10.1080/01440369408531108?journalCode=flgh20.↩
J Bellamy The Tudor law of treason London 1979 offers a summary.↩
J Harries Imperial Rome AD 284-363 Edinburgh 2012, pp197-98. More generally on the breadth of maiestas, see Robinson cited in note 7.↩
JG Bellamy The law of treason in the later middle ages Cambridge 1970, chapter 4.↩
J Scott Algernon Sidney and the restoration crisis Cambridge 1991, chapters 10-14.↩
The other basic lesson is the need for the overthrow of capitalism on a world scale: ie, the unworkability of ‘socialism in one country’.↩