Jihad and the Constitution: the First Amendment implications of combating religiously motivated terrorism.

• Jurisdiction: United States
• Date: 01 March 1996
• Author: Grinstein, Joseph

The obligation of Allah is upon us to wage Jihad for the sake of Allah. It is one of the obligations which we must undoubtedly fulfill ... and we conquer the lands of the infidels and we spread Islam by calling the infidels to Allah and if they stand in our way, then we wage Jihad for the sake of Allah.

--Sheik Omar Abdel Rahman, speaking in Detroit in 1991(1)

The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree.... Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.

--Justice William O. Douglas, United States v. Ballard(2)

In interpreting the Free Exercise Clause of the U.S. Constitution,(3) the Supreme Court has established that individuals have an unassailable right to maintain any religious beliefs they choose.(4) Secular tribunals must refrain from judging the validity of religious beliefs,(5) and the state may not interfere with the internal doctrinal deliberations of religious bodies.(6) Perhaps the Supreme Court has developed this belief-friendly interpretation of the First Amendment because religious ideas rarely have imperiled the nation's existence. While the state occasionally has scrutinized "radical" religions with unpopular beliefs and practices,(7) spiritual groups historically have not threatened U.S. national security.

The Middle East, however, has not enjoyed such a pleasant state of affairs. The menace of violent jihad(8) undertaken by adherents of radical Islamic fundamentalism presently jeopardizes secular governments in that region.(9) To counter this threat, nations such as Algeria, Egypt, and Tunisia have cracked down brutally on violent and nonviolent fundamentalists alike, resorting to military strikes against mosques, detention and trial without due process, and routine torture of prisoners.(10) Leaders in the region have justified these actions by insisting that maintaining a liberal respect for human rights is impossible in societies torn apart by religious violence. As Egyptian President Hosni Mubarak stated defiantly: "`I refuse to allow human rights to become a slogan to protect terrorists."(11)

Ominously, events in the last few years suggest that the threat of violence posed by radical sects in the Middle East has now arrived in the United States. The February 1993 bombing of the World Trade Center painfully demonstrated the vulnerability of the United States to terrorists with ties to radical Islamic groups. In July of that same year, the Federal Bureau of Investigation (FBI) broke up an extensive terrorist plot inspired by the radical Islamic fundamentalist teachings of Sheik Omar Abdel Rahman,(12) a blind Egyptian cleric living in New Jersey. Rahman and nine codefendants were convicted in federal court on October 1, 1995, for conspiring to wage a "`war of urban terrorism"(13) against the United States in the name of jihad.(14) On January 17, 1996, Judge Michael Mukasey handed Rahman a life sentence for his role in the crime.(15)

Because of the seriousness of the plot, the Rahman trial is widely considered to be the most important international-terrorism prosecution ever conducted in the United States.(16) The case is perhaps most noteworthy, however, for the manner in which the federal government responded to the conspiracy--by charging each defendant with sedition. The government accused Rahman of inciting his followers to wage religious warfare, and, as evidence of this incitement, it presented to the jury recordings of the Sheik's fervent sermons. Needless to say, for the government to dust off its sedition laws and employ them against a cleric raises disturbing questions about the scope of religious freedom in the United States. Such prosecutorial tactics probably were justified in the Rahman case, given the grave nature of the plot that the FBI exposed. In less dramatic instances of "subversive" preaching, however, the use of a sedition charge may impair religious freedom more than it protects national security.

The arrival of religiously motivated terrorism in the United States poses the question of whether the free exercise rights guaranteed by the Constitution can withstand the challenge of spiritual doctrines that threaten the nation's security. This Note argues that the Supreme Court's limited definition of religious belief--rooted in individualism, not communitarianism(17)--gives the government the latitude to employ sedition laws to censor the sermons of both peaceful and violent religious leaders. By regulating the content of religious teachings in such a manner, the government essentially can outlaw certain beliefs. Unfortunately, secular courts cannot police this broad governmental power effectively since they are ill-equipped to distinguish between those religious doctrines that endanger national security and those that do not. Therefore, to ensure that the state criminalizes only those religious beliefs that truly threaten the nation, this Note proposes that a religious exception should be added to the "clear and present danger" test, the Court's present seditious-speech standard. Before the state can suppress "subversive" religious speech under the test, it should be forced to prove that the speech reasonably led to overt acts committed against the government.(18) Only by carving out such a protection for belief can the United States hope to avoid the Middle Eastern approach of gutting spiritual freedom in an attempt to protect society from "dangerous" faiths.

To place these issues in their proper context, Part I of this Note discusses the Rahman case as a model for future religiously motivated terrorism prosecutions. Part II identifies the constitutional right implicated in religious sedition prosecutions by describing the special position of spiritual belief in the Supreme Court's free exercise jurisprudence. Part III presents the problem posed by the application of the Supreme Court's individualistic definition of spiritual belief to religiously motivated terrorism prosecutions: Disturbingly, the definition allows the state to attack constitutionally sacred beliefs by regulating group spiritual expression through the "clear and present danger" standard. Given that practical considerations--most importantly the danger of terrorism itself--require that the definition remain unchanged, Part IV proposes a "backdoor" solution to the problem that avoids a redefinition of belief by instead altering the "clear and present danger" test to include an overt act requirement.

1. RELIGIOUSLY MOTIVATED TERRORISM IN THE UNITED STATES

   The Rahman case exemplifies the uncomfortable interplay between religious freedom and national security. The prosecution of Sheik Rahman for the content of both his sermons and his religious advice demonstrates how in religiously motivated terrorism cases the government can potentially infringe upon spiritual liberties by labeling religious speech as "seditious." The Rahman case may illustrate the prosecutorial tool--the use of sedition charges--that the government will employ in subsequent terrorism trials.

   While the United States has witnessed isolated incidents of religious violence in the past, organized, doctrinally driven terrorism targeted at innocent bystanders currently threatens the nation. The 1993 bombing of the World Trade Center by a group of terrorists with loose ties to Sheik Rahman's mosque(19) provides the most spectacular and, to date, most deadly example of this phenomenon. In 1994, four defendants were each sentenced to 240 years in prison for their roles in the bombing, which resulted in six deaths.(20) During the trial, however, the government chose not to delve very deeply into the religious beliefs that may have motivated the bombing.

   By contrast, the radical Islamic fundamentalist ideologies of the defendants permeated the recent terrorism trial of Sheik Omar Abdel Rahman and nine coconspirators. The group was convicted of participating in an extensive plot "`to levy a war of urban terrorism against the United States, to oppose by force the authority of the United States, and by force to prevent, hinder and delay the execution of laws of the United States.'"(21) Inspired by Rahman's fiery sermonizing, members of the group assassinated a radical anti-Arab rabbi, Meir Kahane, in November 1990(22) and plotted to blow up the United Nations and New York federal buildings, destroy the Lincoln and Holland tunnels in New York City, and kill Egyptian President Hosni Mubarak while he was on an official visit to the United States.(23) Law enforcement authorities arrested most of the defendants (but not Rahman himself) in a garage in Queens, New York, on June 24, 1993, while they were mixing explosives for an enormous bomb to be used in the scheme.(24)

   The distinguishing feature of the Rahman case was the unusual charge employed by the government against each defendant--seditious conspiracy.(25) The seditious conspiracy statute, a rarely used criminal provision that originates from a Civil War law aimed at secessionists, allows defendants to be convicted simply for concocting general plots against the government, thus relieving the prosecution of any need to prove specific subversive acts.(26) As one commentator has noted, "'Essentially seditious conspiracy deals with a crime of the mind,' . . . `[I]t allows a conviction based on a sense that there is antipathy or hatred. You don't have to do anything; you just have to think it.'"(27) Although modern-day sedition trials are almost unheard of,(28) the breadth and severity of the seditious conspiracy statute make it a logical tool for future religiously motivated terrorism prosecutions.(29)

   As its name implies, the seditious conspiracy law is technically a conspiracy statute and...