Two years ago, John O. Brennan, US President Barack Obama’s top adviser on counterterrorism, spoke to members of a Muslim student group in a packed auditorium at the law school where I teach, offering his audience the White House’s position about what jihad does and does not mean.
Later that year, a commentator, Haroon Moghul, drew attention to efforts by American officials to build global networks of “acceptable” Muslim leaders.
In each of these cases, counterterrorism has put officials on a collision course with Islamic thought and practice, and, perhaps more dangerously, with the Constitution. The First Amendment prohibits government action “respecting an establishment of religion.”
From a national security point of view, challenging the ideas that underpin radical Islam makes sense. Counterterrorism is ultimately about ideas; why shouldn’t officials try to marginalize the theological teachings cited by violent terrorists?
The problem is that when American officials intervene in Islamic teachings, they create tensions, both legal and strategic.
The strategic problem is easier to see: Is the government a credible authority on Islamic interpretation? Based on the results of comparable efforts in Britain, the answer is a resounding no. Young Muslim men in the thrall of radical teachings will not embrace a more pacific theology because the FBI tells them to, any more than Catholic bishops would have yielded to Obama’s plan to mandate coverage of contraceptives at Catholic hospitals if he had invoked canon law to defend his position.
Then there’s the legal problem. Constitutionally speaking, a government official who sets out to determine what a contested concept within Islam means, or which imams have the right to speak for a particular community, would be in danger of transgressing one of the cardinal tenets of the Establishment Clause: the secular state shall not become an arbiter of religious content.
The framers of the First Amendment, who were intimately aware of the complex relationships among the British monarchy, the Church of England and dissenting churches within that realm, understood that a government might seek to control or co-opt a church.
If that concern seems hypothetical, it is because for a generation cases on the Establishment Clause that have reached the Supreme Court have focused not on state encroachments on religion but on religious encroachments on the state. (Think of prayer in classrooms.)
But whether the state might try to dominate religion itself was an important concern for Jefferson and Madison. And the Supreme Court reaffirmed this core dimension of the Establishment Clause last month when it unanimously recognized the validity of the so-called ministerial exception to federal anti-discrimination laws. The court held that denying a church the ability to fire a Lutheran minister, even on grounds that would have been deemed illegal in a lay workplace, amounted to allowing the state to control the church.
Beyond playing the role of theologian through official pronouncements on contested concepts like jihad, the government inappropriately serves as a missionary when it looks to convert would-be radicals and backs up its efforts with taxpayer-financed outreach.
If the government is increasingly in danger of establishing an “official Islam,” are there any good alternatives? Fortunately, yes.
Countering radical religious ideology is on much more solid constitutional and strategic footing if the heavy lifting is done not by the government but by grass-roots organizations that are grounded in civil society or in religious communities. The government must not be heavily and directly involved.
The relationship between the national security imperative and a great religious civilization is inevitably fraught. Reconciling the two won’t be achieved by allowing officials to become more active in espousing theological alternatives to radical Islam, or in training law-enforcement and intelligence professionals with hateful caricatures of Islam. The government’s efforts ought to be guided by the wisdom of the First Amendment and the values that it enshrines.
The New York Times
By Samuel J. Rascoff, director of intelligence analysis at the New York Police Department from 2006 to 2008, is an associate professor of law at New York University.
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