Freethought & Rationalism Archive

Toto · 01-08-2002, 10:06 AM

<a href="http://writ.news.findlaw.com/hamilton/20020103.html" target="_blank">An excellent article about the conflict between law and religious belief</a> speculates that the Bush administration's reluctance to charge Walker with treason is due to its pro-religion slant. It may also be due to the pro-Muslim political stance that Bush has taken, since the Muslim vote in Detroit is generally credited with being his margin of victory (if you can call it that.)

The Administration has to blast bin Laden as a "false" Muslim because they are unwilling to admit that religion has a dark side or that anything bad can come out of religious study.

Our friends in <a href="http://www.au.org" target="_blank">Americans United for Separation of Church and State</a> believe in the McConnell rule described in the article. They think that the law should be bent to "accomodate" religious belief whenever feasible, which has led them to support legislation such as the <a href="http://www.au.org/rlpa-leg.htm" target="_blank">Religious Land Use and Institutionalized Persons Act</a>. (AU does a lot of good work, but I think they are wrong on this.)

Quote:

PUNISHING JOHN WALKER, THE "AMERICAN TALIBAN":
Has Walker's Religious Quest Convinced The Administration To Go Easy?
By MARCI HAMILTON

(snip)

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 <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=660" target="_blank">Employment Division v. Smith</a>. But the debate still rages in the academy and the legislatures.

In his article, McConnell argued that the Free Exercise Clause was motivated by the theology of evangelicalism, which gives believers no choice but to follow God's dictates. Believers thus have no real choice but to disobey laws that conflict with their religious beliefs.

. . .

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.

(end snip)

Grumpy · 01-08-2002, 02:28 PM

Quote:

Originally posted by Toto:
<strong>It may also be due to the pro-Muslim political stance that Bush has taken, since the Muslim vote in Detroit is generally credited with being his margin of victory (if you can call it that.)</strong>

While it is true that the Bush administration is actively courting Muslims for 2004, the turnout in Detroit is irrelevant. You see, Michigan went for Al Gore by a <a href="http://www.sos.state.mi.us/election/results/00gen/01000000.html" target="_blank">narrow margin</a>.

I also suspect that there are stronger reasons for ignoring treason charges. A) You need two witnesses to an overt act, which the US is not likely to find. B) Walker could easily argue that he had forsaken his citizenship when he joined a foreign army (before it went to war with the USA). If you're not a citizen, you can't commit treason against your country.

[ January 08, 2002: Message edited by: Grumpy ]</p>

Euromutt · 01-08-2002, 04:34 PM

Quote:

Walker could easily argue that he had forsaken his citizenship when he joined a foreign army (before it went to war with the USA).

Neat, except you can't - your citizenship may be revoked as the result of enlisting in foreign armed service, but that's not the citizen's call. Look it up in your passport (I had to check my girlfriend's). Ergo, you can't unilaterally revoke your citizenship simply by enlisting in foreign armed service.

I think a better defence strategy would be to argue that he joined the Taliban before the outbreak of hostilities between the Taliban and the US, and he was coerced into staying after the US launched operations in Afghanistan. And there's the problem of finding witnesses.
That still leaves the charges of violating the Neutrality Act (by fighting in Kashmir) and being an accessory to the murder of a CIA officer.

But hey, if the "revocation of citizenship" tactic were to be used, a possible response is "Fine; we'll just hand you over to the new Afghan government, shall we? Or should we extradite you to India instead?"

Toto · 01-08-2002, 05:38 PM

You are right, the Arabs in Michigan did not actually provide Bush's victory, but he has an advisor who persuaded him that they were politically important:

From <a href="http://www.thenewrepublic.com/111201/foer111201.html" target="_blank">The New Republic</a>

Quote:

. . . During the 2000 campaign, Norquist urged Karl Rove to focus on the Muslim vote--pointing to, among other things, the thousands of Muslims in the key state of Michigan. By all appearances, the Bush campaign heeded Norquist's advice. In an admirable departure from the usual Republican script, Bush frequently integrated mosques into his platitudes about churches and synagogues. In the second presidential debate, Bush vowed to repeal the use of secret evidence, just as Norquist had promised. Bush even named Saffuri as the campaign's National Advisor on Arab and Muslim Affairs.

When Bush won, Norquist credited the Muslim strategy. "Bush's talk about outreach and inclusion had extraordinary results--the Muslim community went 2-1 for Bill Clinton in 1996 and almost 8-1 for Bush in 2000," he told The Washington Times. (That statistic is almost certainly untrue, and Bush actually lost Michigan, the state where Muslims are most heavily concentrated.) Or, as Norquist put it in the Spectator, "George W. Bush was elected President of the United States of America because of the Muslim vote."

Norquist quickly set about turning that supposed electoral influence into legislative influence. . .

And I can't see the "two witnesses" rule being a problem. That rule was probably designed for protecting someone accused of secret treachery. But Walker was not doing anything in secret.

Viti · 01-08-2002, 05:44 PM

If I understand correctly, the Taliban was never the officially recognized government in Afghanistan...would this make a difference?

Personally, I think he will use his parents "brainwashed" excuse ala Patty Hearst

Euromutt · 01-08-2002, 06:28 PM

Nope - "foreign armed service" in this context means fighting on behalf of an armed movement or organisation which is not a formal American armed force (or, I resume, a popular uprising against the US government of outraged citizens); note that this can also apply to mercenaries who do not formally join up with, say, a guerilla group, but do get paid (possibly by a third party) to fight with them.
(Organisations like <a href="http://www.mpri.com/channels/home.html" target="_blank">MPRI</a> avoid this by not actually fighting, but only "consulting". A marvellous example was the Croatian Army's 1995 Operation Storm, which was likely completely planned by MPRI personnel.)

To add my own take on the actual topic...

Quote:

Believers thus have no real choice but to disobey laws that conflict with their religious beliefs.

Fine; then I'm sure they won't mind suffering the consequences of breaking that law. It's all part of that wonderful phenomenon caled "civil disobedience"; if you refuse to obey a law on moral grounds, the unwritten rule is that you accept the consequences. Otherwise, you're a plain criminal.

[ January 08, 2002: Message edited by: Euromutt ]</p>

RufusAtticus · 01-09-2002, 12:19 AM

Is there any evidence that he actually fought? He could claim that he never actually fought American troops (or anyone else for that matter). Maybe he just cleaned toilets or something. I don't see how he committed treason. I did not know it was considered a crime to join a group the US gov't gave millions of dollars to just last summer. I don't see how he could have been doing anything other than fighiting for his life (from both sides) after hostilities broke out.

-RvFvS

Ysabella · 01-09-2002, 01:46 AM

If people were excused from the law for following religious beliefs, wouldn't that excuse cult Satanists from murder charges for ritual human sacrifice?

I agree with the idea that if you break laws on grounds of your beliefs, you are accepting the risk on yourself for your beliefs. Even more so, because the American system provides lawful methods to try to fight laws you think are unjust or immoral. Having these tools with which to fight such laws (voting, contacting your congressman, referendum, etc.), I think discounts any excuse for breaking them.

Oresta · 01-09-2002, 04:21 AM

...But if the law is deemed wrong, civil disobediance is most definitly in order and the only recourse the disenfranchised have. The whole drama and success of civil rights for African Americans stems from civil disobediance.

Jamie_L · 01-09-2002, 04:39 AM

I think the issue is less what crime he actually committed, but what could actually be proved in court. I also think that it would be wrong to try to make an example out of him just because we're pissed at the Taliban. With the appropriate threats of treason convictions, you should be able to squeeze a deal out of this guy and send him away for a reasonable amount of time. Why waste time on this little nut-job peon?

Jamie

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01-08-2002, 05:44 PM	#5
Viti Contributor Join Date: Apr 2001 Location: Down South Posts: 12,879	If I understand correctly, the Taliban was never the officially recognized government in Afghanistan...would this make a difference? Personally, I think he will use his parents "brainwashed" excuse ala Patty Hearst

01-09-2002, 12:19 AM	#7
RufusAtticus Veteran Member Join Date: Nov 2001 Location: NCSU Posts: 5,853	Is there any evidence that he actually fought? He could claim that he never actually fought American troops (or anyone else for that matter). Maybe he just cleaned toilets or something. I don't see how he committed treason. I did not know it was considered a crime to join a group the US gov't gave millions of dollars to just last summer. I don't see how he could have been doing anything other than fighiting for his life (from both sides) after hostilities broke out. -RvFvS

01-09-2002, 01:46 AM	#8
Ysabella Regular Member Join Date: Dec 2001 Location: An American in Holland Posts: 166	If people were excused from the law for following religious beliefs, wouldn't that excuse cult Satanists from murder charges for ritual human sacrifice? I agree with the idea that if you break laws on grounds of your beliefs, you are accepting the risk on yourself for your beliefs. Even more so, because the American system provides lawful methods to try to fight laws you think are unjust or immoral. Having these tools with which to fight such laws (voting, contacting your congressman, referendum, etc.), I think discounts any excuse for breaking them.

01-09-2002, 04:21 AM	#9
Oresta Veteran Member Join Date: Dec 2000 Location: Detroit, MI Posts: 1,107	...But if the law is deemed wrong, civil disobediance is most definitly in order and the only recourse the disenfranchised have. The whole drama and success of civil rights for African Americans stems from civil disobediance.

01-09-2002, 04:39 AM	#10
Jamie_L Veteran Member Join Date: Oct 2001 Location: U.S. Posts: 2,565	I think the issue is less what crime he actually committed, but what could actually be proved in court. I also think that it would be wrong to try to make an example out of him just because we're pissed at the Taliban. With the appropriate threats of treason convictions, you should be able to squeeze a deal out of this guy and send him away for a reasonable amount of time. Why waste time on this little nut-job peon? Jamie

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