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Has Walker's Religious Quest Convinced The Administration To Go Easy?

Thursday, Jan. 03, 2002

The case of John Walker, the American turned Taliban fighter and al Qaeda member, has proved challenging for the Bush Administration. When Walker was discovered in Afghanistan, the President's first reactions were tepid, as though Walker had been caught in a forgivable adolescent stunt.

Then Attorney General Ashcroft floated a trial balloon, suggesting that Walker might be charged with the crime of terrorist activity, with a maximum jail term of 10 years. The widespread view, however, was that the crime and the penalty were too light. As a result, the Administration now says other options are also on the table.

This back-and-forth raises an interesting question: Why has the Administration been so soft on Walker to date, despite the American public's clear preference for a stronger penalty for Walker's traitorous activities?

In the Administration's defense, the case presents serious legal hurdles. Many of these have been debated elsewhere - including the fact Congress never formally declared that the Afghanistan conflict was a war, and that two eyewitnesses are necessary to convict someone of treason. Yet the law of treason has been tested rarely enough to justify the Administration in trying to blaze a new legal path.

Thus, I wonder if there is not another element at play here, in the Administration's reluctance to charge Walker with treason. In the Administration's eyes, is the fact that Walker was on a religious quest significant in mitigating his culpability, even though the quest led him to join the enemy battling our military? After all, this is an Administration, like its predecessor actually, keenly attuned to religious life.

"Real" Religion: Purporting to Distinguish Walker's Beliefs From bin Laden's

Of course, one might point out in response that the Administration has hardly been soft on Osama bin Laden, even though he, too, claims religious motivation, and conclude that therefore religion has nothing to do with it. But paying more attention to the Administration's phrasing undermines that conclusion.

The Administration persistently has refused to acknowledge the scary reality that bin Laden is motivated by sincere if truly antisocial belief. Instead, it has argued over and over, usually via Colin Powell, that bin Laden's beliefs are not "true Muslim beliefs." In order to avoid acknowledging the monstrous truth that some religious beliefs lead to monstrous actions, the Administration and some in our society have had to pretend this it is not real religion prompting al Qaeda to act.

In taking this stance, however, the Administration has fallen into one of the most dangerous traps of our generation.

The McConnell Theory: Laws Come Second to Religious Beliefs

In 1990, Professor Michael McConnell published a Harvard Law Review article arguing that religious individuals have a constitutional right to be exempt from laws that conflict with their religious beliefs. McConnell's theory is worth understanding in order to gain a measure of insight into the Administration's Walker conundrum.

McConnell is an influential scholar who has been nominated by President Bush for a judgeship on the Tenth Circuit Court of Appeals. His article set the stage for a heated debate in academic and judicial quarters and society at large. The Supreme Court rightly rejected McConnell's reading of the Constitution in its 1990 decision in Employment Division v. Smith. But the debate still rages in the academy and the legislatures.

This theological argument has a lot of punch, because if that is how religion necessarily operates, then laws inconsistent with religious beliefs should come second - even if public safety, peace, and welfare are at stake. (McConnell acknowledged in his article that state free exercise clauses prevented citizens from abridging safety, peace, and welfare, but the logic of his reasoning from evangelical principles would admit of no such exceptions to the free exercise right.)

The Problem with McConnell's Theory: A Recipe for Anarchy

McConnell's theory is appealing on its face, and I was initially convinced by it early in my career. Now, however, I believe its reasoning is a recipe for anarchy. Under McConnell's logic, religious belief becomes a full excuse from compliance with the law, and every citizen may carve out of the rule of law his or her own personal legal regime.

Moreover, McConnell's is not the only theological explanation of the system set into motion by the framers of the First Amendment's religion clauses. A far more compelling explanation is provided by the Presbyterian view, dominant at the time, which holds that believers exercise free will and that the law is part of God's law and therefore binding on all believers.

This view is consistent with the general rule that has been set by the Supreme Court to govern those cases where religious beliefs conflict with secular laws. This rule has been applied consistently over time, with only minor exceptions under the Warren Court (exceptions that have been inflated into "dominant doctrine" by those mistakenly hewing to the McConnell thesis). The rule is that religious believers are accountable under the law, and by extension, to the nation, even when their individual religious beliefs chafe under that law. Religious belief, which is freely chosen, does not mitigate the harm or justify mediating the penalty.

The Mistake of Letting Religious Beliefs Excuse Treason

For the Bush Administration to adopt the McConnell worldview with respect to Walker would obviously rub the majority of the American people wrong. It would also be a serious legal mistake.

After all, what heinous crime cannot be justified by religious belief if taking up arms and supporting an enemy intent on the United States' destruction can be so justified?

A cardinal reason that this country and its military cannot be taken over by a terrorist cell intent on the destruction of competing religions is the overriding principle of universal accountability to law. To draw on the Supreme Court's first free exercise case, no person is permitted to become a law unto himself, even for religious reasons.

The fact that Walker was on a religious quest is irrelevant to the crime. Whatever he believed, he chose to do wrong. Thus, it is incumbent on the Administration to make clear that Walker is being held fully accountable under the law. There can be no religious excuse for joining the enemy intent on destroying the United States, and the Administration should say so, and treat Walker accordingly.

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

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