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Fight the War on Terrorism Where it Matters Most in the minds and religious opinions of the enemies

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Message Clifford Brown

The thesis of this article is the following: The USG is not fighting the war on terrorism in the most effective manner because it is being hindered from promoting moderation within Islam, by restrictive legal opinions regarding the establishment clause of First Amendment. As a recently retired Senior Foreign Service Officer and former staff member of the USAID General Counsel's Office, I feel a duty to make a dissenting case.

In a nutshell, it is now considered legal to shoot and kill a terrorist inspired by his radical religious views and to use USG funding in the process. It is, however, not considered legal [in some important circles viz., the legal offices of State Dept. and USAID] to use USG funding to simply argue with this person about the meaning of his or her religion. This stems, I believe, from a misguided interpretation of the Establishment Clause of the First Amendment: to wit, that such action would violate a clause saying that "Congress shall make no law respecting an establishment of religion."

I retired from USAID in May of 2009, after my young son was medically disqualified from living in West Africa. At the time, I was the USAID Mission Director for Guinea and Sierra Leone. During my posting to Conakry, I sought permission from USAID to publish most of what follows, as our regulations require, and it was denied. The Agency said it was inappropriate to refer to my earlier positions and that the publication would breach the attorney/client privilege by disclosing confidential information I learned in the course of representation. I respected the agency's wishes while employed, but I am now willing to take the heat if it comes: The matter in my humble opinion is one of national security and deserves a full public airing. I was also encouraged by a February 27 Washington Post Article, "Should U.S. Foreign Policy Get Religion", citing a recent report of the Chicago Council on Global Affairs, entitled Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy. This report is consistent with the position I long advocated internally to USAID.

While serving as USAID's Country Representative to Kyrgyzstan from 2003 to late 2006, I was approached by the University of Montana with a proposal to translate moderate Islamic texts from their source languages, Arabic and Persian, into both Uzbek and Kyrgyz, in order to help combat the growing threat of Hiz b'ut Tahir in the region. Islam has a large body of moderate literature saying, for example, that suicide is a sin against Allah. Not a bad idea, I thought at the time. This proposal, however, was rejected by my agency on grounds that it would violate GC rulings saying that none of the USAID assistance could provide material that is overtly religious in content. This is only the latest of many examples I could cite.

The internal rulings themselves derive from, but in my view go well beyond, a 1991 decision of the Second Circuit Court of Appeal which had denied a summary judgment motion requested by the Agency, in a lawsuit which was brought to stop certain assistance to schools in Israel. See Lamont v Woods[1]. The assistance itself, in that instance, did not involve providing material with a religious content, but the schools had religion incorporated into their curricula without regard to the USAID assistance. The Plaintiffs argued that our assistance violated the establishment clause of the First Amendment for this reason. The Agency argued that the First Amendment should not be applied outside the territory of the United States, and that the executive branch has sufficient discretion to conduct foreign assistance policy in a way that would permit the assistance. In legal terms, the government attorneys argued that the case raised nonjusticiable political questions, and that the Establishment Clause does not apply to the Government's foreign activities. I think they were right.

The First Amendment says

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first two phrases are intended to protect religions freedoms of U.S. citizens and other persons entitled to the protection of US law. One fear, as most history students know, was the establishment of a State religion. Supreme Court decisions, not involving foreign assistance, have said this language means the U.S. Government cannot get "excessively entangled" in religion. This means, for example, that prayer in public schools, or posting of the Ten Commandments in public buildings, is prohibited, etc.

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Retired diplomat/attorney. Former USAID Mission Director and member of California Bar Association and former partner of Ervin, Cohen & Jessup in Beverly Hills, CA. J.D. UCLA 1976.
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Fight the War on Terrorism Where it Matters Most in the minds and religious opinions of the enemies

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