PLAYING INTO THE TALIBAN'S HANDS:
The Mistake Of Treating This War As Christianity Versus Islam

By MARCI HAMILTON


hamilton02@aol.com
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Friday, Sep. 21, 2001

The Taliban issued the conditions under which it will consider the release of supreme terrorist Osama bin Laden: Muslim judges must review all of the evidence; the United States must reveal the sources that led to bin Laden; and his turnover must be voted on by the Organization of the Islamic Conference. Then they suggested he leave voluntarily, as though they could wash their hands of him.

What they really mean is "Get him if you can."

Conditions for extradition are nothing new in international law, but the Taliban's posturing reveals that it will attempt to impose its theocracy on world justice. Its mantra is Islam against the world, and too many of our prominent commentators have been playing into its hands by characterizing this war for constitutional order into a war of Christians against Muslims.

Prominent Commentators, Unfortunate Statements

Prominent United States commentators in recent days have made grievous errors that play into the Taliban's inclination to treat the West as anti-Islamic.

Ann Coulter, writing for the conservative National Review, suggested that we bomb the perpetrators and then "convert them all to Christianity." Yes, you read those quotation marks right — that is literally what she wrote.

The Reverend Jerry Falwell said the attack was initiated by God to wreak havoc on the United States for not following his Christian religious principles, and for providing civil rights for homosexuals and reproductive rights. Then he issued a tardy apology that can hardly erase the statements' negative effect.

Even the President was tempted down this path when he compared the coming war to a "crusade," a statement he later realized was intemperate, and for which he apologized (quite effectively, unlike Falwell).

Freedom To Believe: A Key U.S. Right

With these Christo-centric statements, these very public persons have played into the Taliban's perverse worldview by turning this war into the jihad the extremists crave. In so doing, they have betrayed what is best about America. They made a simplistic equation, pairing the United States' identity with just one of its faith traditions. Yet that equation falsifies the true freedom of religion we enjoy: The United States, of course, stands not for Christianity alone but rather for the freedom to believe.

In their statements — particularly Coulter's and Falwell's, and to a much lesser degree, Bush's — these commentators seem to imply that this is a war between Christians and Muslims. In making the implication, they slide past the distinctions that matter, and end up directly in the dangerous territory of a holy war divorced from legal and rights norms.

This is not a war between religions, and this is not a war challenging particular freedoms. Rather, it is a war testing the most basic structure of our freedom: the rule of law. This war was initiated by individuals who use their faith to excuse conduct that is inexcusable under domestic and international law.

Absolute Freedom to Believe, But Not Absolute Freedom To Act

The United States Constitution is premised on the freedom to believe, with the Supreme Court repeatedly reasserting that the freedom to believe is absolute. Action, however, has always been treated differently, even when it is religiously motivated.

Some religious organizations in our country foolishly have tried to erase this crucial distinction between belief and conduct. For example, they lobbied for the Religious Freedom Restoration Act, declared unconstitutional by the Supreme Court in 1997, and enacted the more recent folly of the Religious Land Use and Institutionalized Persons Act.

There was a time, early in my academic career, when I railed against the belief-conduct distinction like them. But I have learned since that this very distinction is what separates us from the anarchy the Taliban and its harbored terrorists would visit on the world. There is and can be no absolute freedom to act on religious belief.

The Constitution would say even to the extremists that have caused this unspeakable misery that they have the right — yes, the right — to believe whatever their conscience requires. We should not go to war forgetting this pillar of American liberty.

But we must go to war, because these evil mongers may not kill anyone anywhere in the world for refusing to share their worldview.

Where belief breaks out into action, to use the Supreme Court's formulation from over 100 years ago, there the rule of law must step in, because it is there that others become victims. This time we have 5,000-plus victims of religious action, all because we do not share the Islamic militants' religious beliefs.

Let the Taliban screen all of its decisions through jihad-colored glasses, but let them understand they have very little time. Justice demands bin Laden's direct release to the United States now. We will never deliver the rule of law into the hands of the enemy. That is the reason to fight this war to its end.


Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Copyright 2001 Marci A. Hamilton.

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