February 23, 2006
Religious Freedom in a Time of Domestic Surveillance
-- Jonathan Rothchild
The legal limits of mechanisms designed to confront the new paradigm of the war on terror have been the subject of many recent debates. These debates initially focused on prisoner treatment, interrogation practices, and extraordinary rendition. They have now shifted to domestic surveillance, including discussion of the civil liberties of religious groups. The common thread, however, is the concern for power, not values. Citing presidential prerogative and military necessity, President Bush has argued that the executive possesses privileges vouchsafed by constitutional and statutory authorities, among them the congressionally passed Authorization for the Use of Military Force, or AUMF (September 18, 2001).
Among various provisions, the AUMF "includes the authority to order warrantless foreign intelligence surveillance within the United States" (December 22, 2005, memo from William Moschella, Assistant Attorney General). The administration argues that the statutory provisions of the Foreign Intelligence Surveillance Act (FISA) permit exemptions; that is, they allow for presidential discretion without judicial approval to implement strategies as necessitated by security exigencies.
Conducted principally by the National Security Agency (with roots stretching to the pre-NSA days of the Truman presidency and flourishing under the Hoover-directed FBI), such surveillance is designed to gather sensitive security information for utilitarian government ends: "Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable" (original emphasis). The legal debates continue to center around constitutional strictures and legal precedence: Did President Bush knowingly circumvent or break the law?
Yet, deeper issues about political duties and religious liberties appear neglected in the current conversations. Two recent disclosures describing intrusion on civil liberties of religious groups raise further questions regarding the justification of the domestic spying program. In one example, reports indicate that the government infiltrated the Truth Project, a group that met in a Quaker Meeting House to discuss nonviolent ways of countering military recruiting in high schools. The formal religious character of the project is not the primary concern; what is at issue is the Truth Project's contrarian perspective, which challenges the status quo through nonviolent means -- thus resonating with the prophetic religious critiques of Martin Luther King, Jr., and Paul Tillich, two thinkers monitored by government agencies. Moreover, reports reveal that the federal government identified the Los Angeles Catholic Worker as a group subject to surveillance— an unsurprising fact, given that the FBI meticulously tracked Catholic Worker co-founder Dorothy Day.
The exercise of religious freedom to interrogate, gainsay, and counter government policies has been compromised by political mechanisms such as spying and the Patriot Act, which afford federal and local agencies various measures to investigate citizens. These means include planting agents in mosques, churches, and political action groups, and create the conditions for substantial abuses. Do such means contradict the Fourth Amendment, which ensures "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"?
In a January 23 speech, President Bush articulated his understanding of what constitutes "reasonable" procedures: "It means that Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It said, 'Mr. President, you've got the power to protect us, but we're not going to tell you how.'" But the president's construing of reasonableness in terms of unfettered means -- "tactics" that traditionally were interpreted as being constitutionally "unreasonable"—to achieve a certain end—protection—attenuates the coherence of that reasonableness.
The claims about national security, as advanced by the Bush administration, are no doubt serious, but they take on an ad hominem character. The mantra of security seems impenetrable, even implacable; it expresses a certainty (all future attacks must be prevented) in the face of uncertainty (how and when these attacks will occur). In essence, the administration presupposes that individual liberties, religious and otherwise, can and must be suspended to protect the common good of society.
This presupposition, however, fails to appreciate that it is in and through the exercise of these liberties and their relational dimensions that individuals construct and affirm the common good. The common good depends on the delicate balance of rights and duties, freedom and authority, and means and ends that cannot impugn basic expressions and experiences of the human journey—such as the exercise of religious freedom and critique.
Jonathan Rothchild is Assistant Professor of Theological Studies at Loyola Marymount University. He is co-editor of Doing Justice to Mercy: Religion, Law, and Criminal Justice (forthcoming, University of Virginia Press).