By Michael Gerson
Friday, September 14, 2007
Six years after Sept. 11, 2001, its shock still makes its way in slow motion through the federal bureaucracy.
In the spring of 2004, the inspector general of the Justice Department issued a report warning of radical Islamist influence in American prisons. It concluded that many prison libraries had not been screened for extremist literature. In what passes for governmental urgency, the federal Bureau of Prisons recently revealed its response: the Standardized Chapel Library Project. In consultation with outside experts, the New York Times reported this week, the bureau has produced lists of up to 150 noncontroversial books for each of the major religions, then banned anything from prison libraries that didn't make the cut.
In response to a genuine problem, the Bureau of Prisons has managed to be late, clumsy and self-defeating, all at the same time.
The immediate effect of the new policy has been to decimate prison libraries collected over decades. A policy directed at jihadist literature has, for example, resulted in the removal of three-quarters of the Jewish books at the Otisville Prison in New York, ranging from the Zohar to the works of 12th-century Jewish scholar Moses Maimonides to Rabbi Harold Kushner's "When Bad Things Happen to Good People." In the ongoing war on terrorism, the Maimonides threat has been neutralized.
Understandably, a number of Orthodox Jewish groups and the American Jewish Committee have publicly opposed the policy. And the predictable lawsuits of Jewish and Christian prisoners have begun.
Prison inmates, of course, do not have the full legal protections of other citizens; they have a 40-watt version of 100-watt constitutional rights. Prisoners are entitled to free speech -- but don't have the right to print a newspaper from their cells. They have some privacy rights -- but can be constantly observed on closed-circuit television. They can generally read books of their choice -- but prisons could justifiably ban "Tunnel Digging for Dummies."
Court rulings have established that in all these categories, prison authorities simply have to show a "valid penological interest" in restricting prisoner rights, a broad, easy-to-meet standard.
But the free exercise of religion in prison enjoys increased protections. In 1993, Congress passed the Religious Freedom Restoration Act, setting a stricter standard of scrutiny for actions that limit prisoner religious expression. Prison officials must show a compelling state interest and use the least restrictive means to secure that interest -- like a surgeon, they need to accomplish their justified purposes with a scalpel, not a meat ax.
Few would dispute that prison security and the prevention of terrorism are compelling state interests. Convicted terrorists such as Richard Reid and Jose Padilla seem to have been radicalized while doing time for previous offenses. Subversive Wahhabi literature in American prisons is a threat as real as a smuggled knife.
But it is hard to imagine that liquidating religious libraries is the least intrusive means to oppose terrorist propaganda, as advocates of religious liberty on the right, and advocates of civil liberties on the left, point out. "This is a policy from the same people who brought you the IRS and the DMV," says Kevin J. Hasson, chairman and president of the Becket Fund. "It is an awkward, heavy-handed program to deal with a subtle problem. The obvious thing to do is for prisons to remove books, religious or otherwise, that incite violence."
"There is an obvious alternative here that is far less restrictive of religious rights," echoes David Fathi, senior staff counsel for the American Civil Liberties Union's National Prison Project. "The traditional remedy has been to remove specific books that incite violence. This policy turns that on its head. Anything not on their short, restrictive list is prohibited."
The very act of a government agency selecting the basic books of a religious tradition is disturbing. Are prison officials, whatever experts they consult, really qualified to pick books by James Dobson over Rick Warren, or C.S. Lewis over Paul Tillich? This is clearly beyond government's legitimate powers and a recipe for endless debate and litigation.
In today's American prisons -- often places ruled by despair -- religion is one of the few sources of hope, offering the assurance of a love stronger than past offenses, the possibility of freedom from hatred and compulsion even within prison walls, the prospect of a fresh start that begins only in the soul. This influence should be praised and accommodated instead of singled out for unreasonable burdens -- especially by an administration publicly committed to promoting faith-based answers to social problems.
By all means, the Bureau of Prisons should weed out hate-filled literature in prisons. But it needs to remember that the enemy is radicalism, not religion.