In 2003, a man made an ebook. It was not a complex task.
Belal Khazaal downloaded some articles from the internet, excerpted his favourite bits, threw them all together, and wrote a 155 word introduction. In those brief comments, he prayed the ebook “would be of benefit to everyone working to support” Islam.
Khazaal called the book Provision in the Rules of Jihad. He uploaded it to a website that is either (depending on whose expert witnesses you prefer) a repository of texts on Islamic philosophy, or a repository of texts on Islamic philosophy including some written by terrorists.
For his efforts, Australian courts sentenced Khazaal to 12 years in prison. Late last week, the High Court affirmed Khazaal’s conviction.
Described like that, Khazaal’s actions are comically banal and his punishment bizarrely disproportionate.
Does that comic banality disappear if we add that according to the Australian law his ebook had “an obvious and direct connection with assistance” for terrorism? This form of written work was made illegal in 2002.
Or that one chapter was titled “Reasons for assassination”? It included recommended targets (“diplomats, ambassadors” and “holders of key positions” in “atheistic countries” like Australia) and recommended techniques (“wireless detonation, letter bombing, booby trapping”, “cake throwing” and “hitting with a hammer”).
Yes, “hitting with a hammer”.
Even with these extra details, Khazaal’s editing job doesn’t come across as a great threat to the Commonwealth. He took things he found on the internet and packaged them up as his own.
Khazaal complains and apologises throughout his short introduction, saying the ebook would be better if he had more time, if he was fully settled in his residence (sure it would be, Belal). No question, his professed beliefs about violent jihad are distasteful and hateful. But more than anything, he comes across as a bit pathetic.
The courts may have been correct to say that compiling this ebook constituted an offence under the Commonwealth’s Criminal Code. That does not mean these offences are good law.
Between September 11, 2001 and September 11, 2011 the federal government passed 54 new pieces of anti-terror law. The legislative output was extraordinary.
As George Williams notes, during the Howard years, the government was passing one new anti-terror law every 6.7 weeks. As soon as one bill was through the Parliament, it was onto the next.
Another commentator has called this “hyper-legislation”. By volume and impact, the new Australian anti-terror laws greatly exceeded those passed in the United Kingdom, Canada and even the United States.
The 2002 changes to the Criminal Code are, in fact, some of the more benign changes made in that decade of frenzied activity. More aggressive reforms in 2005 even reintroduced the long-dormant concept of sedition. (To its credit, the Rudd government relaxed those sedition laws in 2010.)
Yet that decade of hyper-activity has damaged our legal system. The boundaries between legal and illegal activity have dangerously faded.
And with all that new law, it has still taken nine years of police work, anti-terror intelligence, and legal argument to get to the Khazaal High Court decision last week. Are we safer? Khazaal’s source material is still online.
In a long and important paper from 2005, the American constitutional scholar Eugene Volokh asked whether “crime-facilitating” speech should be considered free speech. That category includes everything from the Anarchist Cookbook, which describes in detail how to make drugs and bombs, to a lookout yelling “run!” when police arrive to arrest his criminal friend.
Volokh concluded that much crime-facilitating speech is “dual-use”. Speech which can facilitate crime can also inform non-criminals about risks, about issues of public importance (such as the vulnerability of key Australians to hammers), or even just entertain.
A government should not ban speech that has a lawful and valuable use simply because it may also be used by criminals. Volokh argued that to the extent crime-facilitating speech has such value, it should be considered to be within the bounds of free speech.
Khazaal’s ebook would fall easily within those bounds. Does Islamic theology demand violent jihad, and against whom? Khazaal has published his view. Know your enemy.
And it’s hard to say there has been any great, compelling harm caused by his compilation. Words are cheap. The Anarchist Cookbook provides more technical detail than Khazaal offered, and is free to read across the internet.
Belal Khazaal may be a bad guy. He may deserve to be in prison. Australian courts decided he could not be regarded as “a person of good character” at sentencing because of convictions in Lebanon for donating to alleged terrorist organisations.
But if he deserves to be in prison in Australia, he deserves to be there for a greater crime than making an ebook.