Amos Guiora of the University of Utah College of Law says that in the wake…
Umar Farouk Abdul Mutallab tried to blow up Northwest Airlines Flight 253 on Christmas Day. Unless you live under a rock, you know this. Innumerable talking heads are lambasting federal agencies for seemingly egregious mistakes. Some demand that President Obama fire Secretary of Homeland Security Janet Napolitano; others decry lessons not learned from 9/11.
Although something clearly went very wrong, we must be cautious when pointing fingers and reaching sweeping conclusions. While airport security and intelligence coordination seem to be the immediate culprits here, the problem lies far deeper than that.
We face a stark reality. An Islamic extremist, Mutallab was bent on killing innocent passengers, including fellow Moslems, regardless of their faith. Moderate Moslems in Detroit have condemned the attack. But religious extremists remain committed to our destruction, including extremists right here in the US.
Radical imams send the Mutallabs of the world to their fiery death promising glory and virgins in martyrdom. Indeed, these Mutallabs are in our midst; Somali ‘lost boys’ radicalized in Minneapolis mosques and sent to Pakistan for suicide bombing training are proof enough. Terror in the name of God is our reality. Religious extremism presents the single greatest danger to national security – we must regain the initiative. And yet we must guard against capricious and arbitrary measures, and distinguish between religion and religious extremism.
What can we do? I suggest several proactive measures in my recent book, Freedom from Religion: Rights and National Security. Although counterintuitive in a vibrant democracy, limiting the free speech of those inciting violence in the name of religious extremism is legitimate. Constitutional law scholars are extremely uncomfortable with such limitations, but extremists leave us minimal wiggle room.
First, violence preached in a house of worship loses any immunity based on freedom of speech. We cannot wait for actors influenced by extreme religious sermons to commit dastardly acts – law enforcement must act on the violent extremist speech.
However, imagine the chilling effect if agents attend worship dressed differently from parishioners, holding ‘pen and pencil’ while listening to sermons. A faith leader told me he would therefore prefer FBI agents remain undercover. Although “less honest,” it produces better information and minimizes Free Exercise violations.
Second, we must re-articulate the limits of clergy speech. How often must clergy incite before law enforcement moves in? What words justify monitoring? In Brandenberg v. Ohio, the Supreme Court said states cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The court continued: “The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”
An extremist religious cleric’s power is, potentially, extraordinary. In Brandenburg’s three-prong test—imminence, likelihood, intent— an extremist religious authority determined to encourage his congregation to act almost certainly meets the first two requirements. A listener is likely to obey the words of his ultimate spiritual authority and a “critical mass” of regular violent sermons will make his act imminent.
Third, while celebrating religion and religious freedom, we must immediately resolve critical issues at the confluence of religion and national security: will airport security officers worldwide require women in full-length burkhas to lift their veils for identification purposes; will they ask individuals with Arabic-sounding names additional questions; will they subject individuals going to or coming from Middle East countries to additional scrutiny?
Many of us instinctively recoil at affirmative answers to these questions; others suggest we have no alternative but to fundamentally re-articulate how we protect ourselves. Winston Churchill would have said we must ‘look the tiger in the eye’. The question – how we balance powerful competing rights: the right to religion and the right to self-defense.
The direct, undeniable connection between terrorism and extremist religious speech demands that we seek answers. But we must be extraordinarily cautious lest we overreact. American history is replete with examples, from the internment of innocent Japanese-Americans after Pearl Harbor to the torture-based interrogation regime after 9/11. Both represent the very worst in Presidential decision-making and Supreme Court and Congressional acquiescence; in essence, a complete failure of checks and balances and separation of powers.
Finger-pointing is always endemic to Washington. The immediate and future danger posed to innocent individuals demands that our President – restrained by an active judiciary and Congressional oversight – demonstrate courageous and bold leadership. We must recognize that religious extremism poses an immediate danger and that religious extremists no longer deserve immunity predicated on faith.
Impositions on extremist faith are indeed controversial, but may be inevitable. Inevitable – just like the next religious extremist-motivated terrorist attack.
Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest book is Freedom from Religion: Rights and National Security (Oxford University Press, 2009).