STATE VERSES RELIGIOUS LIBERTY: RELIGIOUS FREEDOM AND SECRET EVIDENCE
Delivered on July 1, 2000 At the Libertarian party National Convention in Anaheim, California
Peace be upon you.
In the name of God the Most Gracious, the Most Merciful.
I begin in the name of God not only because that is the tradition in my own faith, but because I wish to make it clear from the outset of this talk on the state verses religious liberty, which side I am on.
I originally wanted to speak to you about secret evidence, and God willing, I shall, but Steve Dasbach asked me make the address in the context of the broader issue of the state versus religious liberty. I shall be speaking both about a war against religious freedom and a war against due process.I shall be speaking about a country in which people are imprisoned for years although no charges have been filed against them, and where the evidence against them is secret, not to be seen by them nor by their attorneys.I can hear you thinking: it’s a shame that such countries exist, but we’re not here to deal with the problems of Israel, or Egypt, or China or some banana republic.Indeed.But the country of which I speak is the United States of America.And because the victims of this oppression are almost all members of the same religious persuasion, it fits in with the title assigned to this talk.
Yesterday, Barbara Goushaw gave a moving keynote address in which she welcomed into the party a wide variety of oppressed groups in America to the Libertarian Party, enumerating the wrongs the state has done to each and bidding them “a welcome home.”It was a wonderful address and I am grateful to her for it, but deeply regret that she omitted “religious people” from her list.Unfortunately, that omission was only a part of pattern of errors libertarians have been making with regard to freedom of religion issues.This pattern can be seen most clearly in connection with the Religious Freedom restoration Act, and attempt to limit government intrusions on the freedom of religion. When libertarian John Stossel did his 20/20 report on the Religious Freedom Restoration Act he bought hook line and sinker the state attorney generals’ line on the issue.When the government officials used examples of absurd freedom of religion claims to try to discredit the law, Stossel did not expose the fact that there examples came from the period in which the law was NOT in effect. He seemed unaware that caseload of religious freedom disputes went DOWN after the law was passed.An anarchist writing in the journal of the American Atheists wrote against the religious freedom restoration act an article that incorrectly suggested that the act was an attempt to erode the line between church and stated when the opposite is true and Pat Robertson’s group was the only religious group to speak AGAINST the act and secular and atheist groups are part of the Coalition for Exercise of Free Religion, the extremely broad coalition of religious and civil liberties groups that wrote the law.
Recently, the Libertarian Party joined this coalition.To my dismay, a number of articles appeared in the LP News criticizing this move.The writers of these letters showed a lack of understanding not only of the history of religious oppression in this country, but also even of the meaning of the first amendment.It is important to remember that there is an enormous difference between the American conception of secularism and that dominant in most of the rest of the world.To Americans secularism means that there should be a wall of separation between the state and the church and the intention of this wall is to protect religion from the state.In other parts of the world, France and Turkey, for example, it means that there should be no sign of religion in public life, even that societal norms should be completely uninformed by religious sensibilities.
The American concept of secularism is a two-pronged concept of guaranteeing free exercise of religion in the one hand and prohibiting the establishment of religion by the state on the other.These complementary principles are enshrined in respective clauses of the first amendment to the constitution. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
The European view of state and religion is one of hostile competition.This is because European history was dominated by a church-stated alliance that was harmful to both civil society and religion.Modernity in Europe was a history of rebellions against this entanglement that reached a fever pitch in the French Revolution.The French revolutionaries sought to establish a society free from religion, in which religious beliefs would at best be a matter of personal rituals.All civil ethics, law, and morality would be dominated by the state, the god of a new secular religion.
In America things were very different as the revolution against Britain was largely nursed in the churches which were independent of the state and even hostile to it in the colonial era.Once Americans had set up their own governments, the churches were seen as an integral part of a civil society that was independent from government.When Tocqueville did his study Democracy in America he was struck at importance of the role of religious institutions in the daily fabric of American life, and the degree to which they occupied social space that in France would be taken up by the state.
In the second half of the nineteenth century certain European ideas began to make headway in certain circles of the American elites.Especially noteworthy was the government school movement inspired by the Prussian system of indoctrinating young students into accepting their place in society as mere tools of the state.The idea appealed to a bizarre coalition of American secular educators, pietist partisans terrified of an increasing Catholic and high Lutheran presence, and powerful industrialists.The educators saw in government education a way of increasing THEIR OWN POSITION IN SOCIETY.The pietists saw a way of getting poor children out of Catholic and Lutheran schools and educating them in their own traditions while letting the bills be paid out of general tax revenues.To the industrialists the factory-like government school setting was the perfect place to train the poor to become cogs in their factory system.To all it was a mechanism for assimilating Irish and Italian and other immigrants into the American way of life.
These schools were the first of many processes that set about to replace the mores established by religious teaching with a newly evolving secular and materialist ethic that emerged.Of course this secularism and materialism was not what the pietists, or their fundamentalist heirs had sought or expected.It was only a matter of time until the increasingly secular society took the Protestant prayers and then subsequently all religious values out of the schools.
Religious Liberty Today
One would think that the secular liberals and the fundamentalist Christians would be at odds with one another in the cultural war that has developed.They certainly are in their dispute over the establishment clause.The religious extremists want top put prayer back in the schools.Their view is that just because congress can’t establish religion that doesn’t mean that the states or local governments can’t.I believe that it is for this reason that Judge Scalia in the Berne decision argued that religious freedom is not a fundamental right and therefore not covered by the fourteenth amendment.Stripped to its barest essence, Scalia was arguing that infringements on religious freedom are exempt from the strict scrutiny test….
The conservatives have been joined by liberals opposed to religion in public life. The liberals would take any opportunity to move us in the direction European style secularism while the conservatives sought lay a groundwork for undermining the disestablishment clause by first applying their arguments to undermining the free exercise clause.
For the modern American liberals the issue is similar to that confronted by the French revolutionaries.Religious institutions are a threat to the state’s attempt to monopolize morality and society.The vilification of fundamentalists has been an easy way to rationalize increases in government power.We have the example of WACO.Recall how the BATF’s attempt to put on a spectacular raid on a fundamentalist cult at the time their budget was up for consideration turned into a horrific conflagration.
Ironically, Waco begat the Oklahoma City bombing.When a government agency massacres innocents we should be saddened, but not surprised if it provokes paranoia and some unstable person retaliates in kind against the government.State terrorism begets free-agent terrorism.
The Oklahoma City bombing begat the Anti-terrorism and Effective Death Penalty Act of 1996.For decades the government agencies like BATF, FBI, and INS have been seeking ways to expand their power.Oklahoma City gave them their chance.Even the Reagan administration did not push through legislation this Draconian.The Clinton administration achieved it.
This law has allowed the federal government to imprison people without having to file any charges whatsoever against them and to keep them the evidence against them secret from the victims and their attorneys. Here is the analysis that Constitutional scholar and civil libertarian Prof. David Cole in a an article in The Nation made of the bill as it was making its way through Congress:
“Consider, for example, the bill's habeas corpus provisions. Habeas corpus is the only way that most criminal defendants ever get a federal hearing on their constitutional claims. It's an incredibly important stopgap, as illustrated by the fact that some 40 percent of state-imposed death penalties are reversed in federal habeas corpus proceedings for constitutional violations that the state courts overlooked. Yet under the anti-terrorism bill, federal courts would have to defer to a state court's conclusions on constitutional questions unless the state court's decision was 'arbitrary' or 'unreasonable.' This watering down of constitutional protections applies to all state crimes, from fornication to shoplifting, and has no connection whatsoever to terrorist offenses, the vast majority of which are tried in federal court. It restricts constitutional rights with no net gain in the fight against terrorism.
“The bill also reintroduces to criminal law the concept of guilt by association, a notion we tried out, with disastrous results, during the McCarthy era. The anti-Communist laws presumed that anyone working with or assisting the Communists was guilty of the party's illegal ends, even if the individual cooperated only for purposes that were legal, such as labor organizing. The injustices and excesses of that experiment ultimately led the Supreme Court to rule that where the government seeks to hold someone accountable for supporting a group, it must prove that the individual specifically intended to further the group's unlawful ends.
“Under the anti-terrorism bill, the Secretary of State could designate any foreign group as 'terrorist,' and it would then become a crime, punishable by up to ten years in prison, to support that group's lawful activities. The Secretary's designation would for all practical purposes be unreviewable, because the legal standard for what qualifies a group as terrorist relies on the Secretary's judgment that the group's activities threaten our 'national security,' a judgment no court is likely to second-guess."
Now let us look at the victims of this bill.It is noteworthy that almost all of the twenty-plus persons currently incarcerated under this law are Muslims.Draconian laws require a demonized enemy.Today the Muslims play the role that the Catholics played in an earlier generation of government expansion at the expense of civil liberties.One should recall how Zionist propagandist Stephen Emerson initially blamed the Oklahoma City bombing on Muslims.In at least one case in which the secret evidence has come to light, the evidence turned out to be nothing more than newspaper articles repeating unsubstantiated allegations that the victims were “associated” with Muslim terrorist groups.
Hani Kieraldeen spent 19 months jail without charges.The arrest was based on accusations by Hani’s estranged wife.She had a history of making false accusations against him. She took advantage of her ex-husband’s lengthy imprisonment as an opportunity to disappear along with his 6-year-old daughter.Hani is now free, after seven judges rejected the claim that he is a threat to national security, but he still has not been able to see the classified report that kept him in prison for over a year and a half.
Nasser Ahmad has never been accused of any violent act.He became a target of the Justice Dept. because he worked as a paralegal in the defense of Shaikh Omar Abdel Rahman.After Abdel Rahman's conviction, Nasser Ahmad was imprisoned without charge on secret evidence. After he had spent years in prison, the judge began to demand a better accounting by the government.According to Nasser, the last straw for the judge was when he demanded sought testimony from an FBI agent alleged to have claimed that Nasser had leaked a letter he had translated for the defense to an Egyptian newspaper.The FBI had claimed that the leak had sparked some terrorist killings in Egypt.According to Nasser, the agent agreed to testify, but not under oath.In releasing Nasser, the judge asserted, "Most of the Court's questions regarding the reasons for classifying certain evidence were answered with simple boilerplate phrases, denial of knowledge or denial of authority to discuss the matter."He ruled not only that Nasser be released, but that he be given political asylum.But who can give him back the three years he spent in jail for nothing?
Now I want you meet one of the victims, Mazen an-Najjar.Unfortunately the government wont let me bring him here.He continues to sit in prison as he has for over three years, so you will have to meet him by videotape provided to us by the American Muslim Council.
[Here the videotape "Uncivil Liberties: Secret Trials in America" produced by Hazim M. Bitar, provided courtesy of the American Muslim Council was shown.It relates the story of the mild-mannered professor at the Univ. of Southern Florida who has stoically sat in prison sent there for reasons no one will tell him.He has been separated from his wife and daughters for three years.]Now the judge in the case is beginning to get impatient with the government.He has demanded a summary of the evidence against him.The government has responded with a single sentence, an assertion that he is “associated with Islamic jihad.” The judge has ruled this insufficient and demanded more.In the meantime, Mazen continues to sit in jail while his daughters grow up without him.His youngest was two when he was taken away.She has spent most of her short life separated from her father, a virtual orphan.
It gets worse.A pair of Iraqis who responded to the American government's call to rise up against Saddam Hussein and who were airlifted out of Iraq when Saddam overran the northern part of the country have been arrested.The charges against them: none.The evidence against them: secret.
It gets worse.Anwar Haddam was an Algerian who sought to reform his country through democratic means.When he and other members of his Islamic Salvation Front (FIS) party won the elections, the military staged a coup and began to jail the winners of the election.Haddam fled to the United States, the paragon of the democratic method in which he so firmly believed.He is now in prison, in a location difficult for his wife and friends to visit.Recently, his wife obtained political asylum here from the brutal regime.Her request for asylum for her husband was initially granted, but when the news hit the press, the INS abruptly declared that the announcement was a "mistake" and that he would not be granted asylum.And so he continues to sit in prison. The charges against him: none.The evidence against him: secret.
The Battle Raging
HR2121, the Secret Evidence Repeal Act has been introduced into Congress.It has over one hundred co-sponsors. A concerted push is needed for it to pass.Congress recently deleted funding for the imprisonment for these innocent people, but Janet Reno seems to be finding the money somewhere to continue to hold them.
I wish to close with a call to all libertarians, whether they are religious or not, to commit themselves to the side of freedom in the battle between state and religion.I’ll give you the address of the Minaret of Freedom Institute’s web site and that of the American Muslim Council: www.minaret.org, www.amconline.org as a starting point for getting more information. Let the atheists realize that if they take strict scrutiny away from government violations of the free exercise of religion then it shall soon be taken away from violations of non-establishment clause, and they shall soon be forced to pray not only in the schools but in public events of all sorts.Let the libertarian journalists understand the significance of credibility of their sources.When a power hungry state attorney general tells you that freedom of religion gets in the way of secure operation of the prisons ask him the tough question:If that is true, then why are you against having to prove it against the standard of strict scrutiny? Let the Libertarian Party mobilize support of HR 2121 with the same fervor it has devoted to other causes.When a zealous Zionist like Stephen Emerson declares mild mannered university professors to be terrorists, let us roar out in a single voice against such obvious baiting and denounce the McCarthyism of the legislators who invite such a man to testify before congressional committees and the xenophobia of Janet Reno when she puts the targets of his malice in jail without charge.If we will do these things, then, perhaps, the keynote speaker of our next convention can believably add the welcoming message that this year’s speaker omitted.I see with the eye of my heart our 2002 Libertarian Convention keynote speaker looking out over a record-size convention attendance and saying: To those who come to our Libertarian Party convention because they wish to be free to adore God as they have been taught, and to be free from the torment of arrest without charge, and from the Kafkaesque nightmare of persecution by secret evidence, to those who seek the freedom to please the Almighty and to purify their conscience by speaking out for the freedom of their brothers and sistersvictimized by American sanctions and bombing raids in Iraq or by American aid to Israel and the Palestine National Authority, to Muslims, Native Americans, Christians, Jews, Hindus, Buddhists, to the people of all faiths who for the love of their Lord are willing to wrestle the demons of the Justice Dept., and who, like Jefferson, have sworn upon the alter of God eternal hostility against every form of tyranny over the mind of man, even to these?especially to these:Welcome home!