Why it is illegal to use U.S. government funding to argue with extreme Islam about the meaning of its religion. It is now legal to shoot a terrorist with USG-supplied equipment, but not to argue with him about his or her religion with USG financed material. This is due to a mistaken reading of the Establishment Clause.

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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.

There is a strong body of literature explaining the history of the First Amendment cases and their application, and it is not the purpose of this article to fully rehash or summarize this literature. If that were my purpose, I believe there is almost a self-evident case that whatever the Executive Branch might do in it's foreign aid program, it would not be "Congress [making a law] respecting an establishment of religion." I will limit the legal discussion, therefore, to the following four paragraphs.

Author Barry Adamson, in his book, Freedom of Religion and the First Amendment and the Supreme Court (Pelican Publishing Co 2008), has given a masterful and very detailed analysis of the meaning of the term "establishment", and the history of this particular word in the First Amendment. Unlike today, the term was used in the late 18^th century predominantly to mean an "institution" of religion. Most of the colonies had already enacted their own versions of the establishment clause, in a reaction to public outrage over the state government support for various sects or factions especially the Congregationalists (in the north) or the Anglican churches (in the south). Many of these same colonies, in the campaign to ratify the Constitution, were promised by one James Madison and others, that an equivalent provision would be considered as an amendment to the U.S. Constitution incorporating essential rights. We know now the outcome as the first 10 amendments. There is no question but that it was aimed only at the preventing the establishment of a national, government sanctioned religion with compelled attendance, tithing, privileges concerning public office, etc. It achieves this by saying, elegantly and simply, that Congress would make no law about any such institution, coupled with the free exercise clause which immediately follows. It said and meant nothing about the Executive Branch. Moreover, virtually the same group of individuals, at almost the same time, approved a number of laws indicating they did not understand the term to mean government and religion should be hermetically separated, but rather that no particular sect should be favored by government. For example, in August of 1789 they delivered a bill to President Washington (the Northwest Ordinance) which declared that "religion, morality and knowledge, being necessary to good government . . . shall forever be encouraged." It was made a condition to the admission of future states, that each have a constitution consistent with the principals therein expressed. They passed the 1789 Judiciary Act requiring all federal judges to take an oath followed by "So help me God." And they approved in September of 1789 a Thanksgiving Resolution in which they requested a national day of thanksgiving to "Almighty God." In later years, Congress would approve coinage (1864), a national anthem (1931) and motto (1956) with "In God We Trust". A national anthem was approved in 1931 with "In God is our trust", the pledge of allegiance phrase "one nation under God" was signed into law in 1954. It is a safe bet that virtually all of the Founders, and certainly the author of the clause (James Madison), would have been, say, bewildered by a 9^th Circuit decision in 2002 that the words "under God" in the pledge of allegiance violate the establishment clause. That court was overruled, although other cases now may be pending on this same point.

The modern extension of the establishment clause to actions of the Executive Branch first happened in 1947, in the case of Everson vs. Board of Education[2]. It had earlier been made applicable to the States also, via a between-the-lines reading of the 14^th Amendment as a type of protected "liberty" interest.[3] It has evolved now into a doctrine to prevent, among other things, "excessive entanglement" of the government with religion sufficiently ambiguous as to give courts great leeway to come up with a variety of decisions, turning (primarily I submit) on their own varying degrees of respect for historical traditions. Lemon v. Kurtzman[4]. Most of the reasoning derives from a famous phrase in a letter one Thomas Jefferson wrote in 1801 to a Baptist group in Connecticut that wished to gain his favor in their own efforts to support a state "disestablishment" clause in that state. Everson and latter decisions take as evidence of the Founders' intent a reference to the building of a "wall of separation between Church & State." This was his phrase, not Madison's nor the Constitution's. Jefferson lived in France from 1784 to 1789 and was not involved in the drafting of or the debate about establishment clause, though he did have a hand in drafting early versions of a free exercise clause for the Virginia colony's constitution.

Jefferson's letter was not written as an analysis of the First Amendment. He had just been through a very bitter campaign for the Presidency, in which he was accused of being an atheist by, among others, Federalists and supporters of the Congregationalist sect in Connecticut. He was strongly criticized for not proclaiming days of national thanksgiving as his predecessor (also a Founder one present during the debate) had routinely done. He correctly anticipated that the letter would be widely republished, and he saw an opportunity to defend publicly his views and practices. He sought prior advice from others for this very purpose. It was a political letter in every sense.

As stated, the phrase "separation of church and state" does not appear in the Constitution, and I leave the reader to the Adamson book for a persuasive argument that even Jefferson would be quite shocked at the lengths to which his phrase has been taken. Or better yet, the 2005 dissent by Justice Scalia to McCreary v. ACLU, 545 U.S. 844, found at www.law.cornell.edu/supct/html/03-1693.ZD.html in which he describes the Lemon test as "brain-spun." Yet, as Justice Jackson observed in Brown v. Allen in 1953, "We [i.e., the Supreme Court] are not final because we are infallible, but we are infallible only because we are final."[5] William J. Brennan once correctly boasted: "You can do anything around here with five votes."[6] In the current era of more strict construction, I submit three possible legal conclusions of diminishing breadth: (1) the actual language mentions only laws by Congress not the entire government; (2) it says nothing about foreign aid; and (3) it should not limit how our government must fight a war on terrorism.

The argument I have, however, is not simply about how to interpret past decisions, all of which long predate the war on terrorism. It is also about whether the management of USAID, or other agencies of the USG, or the White House, should make an effort to overturn or reexamine the more conservative [read "brain-spun"] interpretations which clearly have the upper hand at present. This is as much a management issue as a legal issue perhaps even more so. The matter has not been litigated, and until recently, it has not even been broadly and seriously discussed at the highest levels of our government. Only management can make that occur.

A motion for summary judgment is not full litigation of a matter. Lamont v. Wood meant simply that the Second Circuit would not throw the plaintiffs out on legal arguments alone. It is one thing to say the First Amendment applies overseas; it is something else to say exactly what it means overseas in the context of a given proposed act of the Executive Branch or whether the First Amendment would be violated in a given instance. After the Wood ruling, USAID settled the case I called it preemptive capitulation without returning to the trial court as the Second Circuit expressly suggested, to have a trial on the merits. And in any event, it was almost two decades years ago, long before our current wars, and it did not/not involve the highest court of the land.

The War on Terrorism has changed things. We clearly are already excessively entangled with religion. If we are to get effectively un-entangled, we should not be shy about pushing this matter to the highest level of our judicial system or from having a real trial if necessary. We can build schools and roads and latrines, and we can promote democratic governance up every wazoo in the Middle East; but if we do not help moderate Islam spread an expressly religious message of moderation, we are not fighting on the most important battlefield of all: the mind and religious opinions of very religious enemies.

Before my tour in Kyrgyzstan, in late 2000 I was helping out temporarily in the USAID General Counsel's office where I had worked previously for 12 years. I had left Bogotá, Colombia, where I had served as the Deputy USAID Director; I was waiting for language training to start prior to my new assignment. GC was working then on responding to a Freedom of Information Act request from the Omaha Herald Tribune, which had asked for all documentation related to the cross border program of assistance to the mudjhadeen in Afghanistan, made more famous in the amazing book and (less amazing) movie, Charlie Wilson's War. This program had been managed long distance, from DC and Pakistan, and involved substantial flows of resources, through several levels of grants and subgrants, putting money into the hands of, among others, primary school teachers in Afghanistan. As we examined the documentation, GC learned to its horror that some of the primary textbooks dealt with the life and views of the Prophet Mohammed. Such is primary education in that part of the world. At one point, the head of the litigation department of GC, one John Scales, pulled a prayer rug out of his safe which had a USAID emblem duly marked on it, as required still for commodities financed by USAID. Once again, as we had done in the 70's, the briefs were prepared, saying essentially, "So what?" this is foreign assistance. If you find yourself swimming in a sea of Islam, you cannot avoid dealing directing with the content of the religion." Once again the matter was not litigated. I have no clue if this material was actually turned over to the Omaha newspaper, but to my knowledge it never made the mainstream press. The General Counsel, one John Garner, and Mr. Scales were intensely worried about the publicity that might come from it. I went into Russian language studies at FSI and have never learned the outcome.

After my tour in Kyrgyzstan, I found myself again in Washington, waiting for my Africa assignment to start. Since I was assigned to the Africa Bureau, I attended several meetings with DOD representatives to discuss assistance that might eventually go into Somalia. Once again, as I had done for well over a decade, I raised the issue of legal restrictions on religious assistance. In one meeting, a Pentagon special forces representative made the statement that this was one area where it would perhaps be more appropriate to use the Jesuit School of Management: seek forgiveness later, if necessary, rather than advance permission. A USAID staff member who had served in a provincial reconstruction team in Iraq told me he knew perfectly well that the U.S. Army was helping moderate Moslem clerics in Iraq to spread their messages, claiming in one instance that we had financed the construction of a mosque. It was no surprise to me that different parts of the USG could have such different approaches.

In fairness to the USAID General Counsel's (GC) office, and the State and DOJ lawyers who apparently agree with them, I know they are complying with the law as they understand it, and also are trying to provide flexibility to the agency. A program in Senegal, supported by P.L. 480 financing, expressly targets the informal Islamic schools in the north, and only Islamic schools are involved. But rather than use the original proposed title, "Islamic Schools Program", it was relabeled the "Vulnerable Schools Program" simply to avoid the appearance of aiding Islam. The program provides material that has no religious content whatsoever, and thus fails to address the most important part of an Islamic education. GC has also asked the Justice Department to clarify the law in this area, and Justice has declined. But a request from another agency's legal office has less motivational force than such a request would have if it came from, for example, the White House or the National Security Council.

In October of 2008, I attended a worldwide USAID mission directors' conference in Arlington, and again made my pitch -- that we should reexamine our legal restrictions. At the time, a senior State Department representative responded that the Department was already helping moderate Islamic clerics spread their religious message. It has long been clear to me that the restrictions self-imposed on USAID are not taken as seriously by the other government agencies involved. Yet, USAID is the best and most appropriate agency to delivery "soft assistance", and we could easily provide a host of tools to moderate Islam that would help them convey their moderate, but religious, messages. But we will not do this if we continue to limit ourselves to material that has no religious content.

Helping moderate Islam promote religious views, abundant in the Koran, to the effect that suicide and killing innocents are not sanctioned by Allah, would not be a threat to the free exercise of religion in the United States. Even if earlier legal opinions concerning application of the First Amendment to foreign assistance are well founded, they should be reexamined in light of current facts the clear entanglement with religion, part of which is producing terrorists that we already fight with other, less effective means than openly promoting the moderate version of Islam. This is essential if we are to fight the war where it matters most in the minds and religious opinions of the enemy and the pious children it recruits daily.

2009 Clifford H. Brown

Authors Website: www.waveenergyco.com

Authors Bio:
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.