"We will respect the rights of political freedom and religious freedom, and we are deeply committed to that," Ashcroft told ABC’s "This Week." "But for so-called terrorists to gather over themselves some robe of clericism… and claim immunity from being observed, people who hijack a religion and make out of it an implement of war will not be free from our interest."
It’s easy, as an American of a certain age, to take religious freedom for granted after all, we visit our mosques, synagogues and churches without a backwards glance. Easy, as well, to forget that not so long ago, the government had no compunction about spying on citizens’ religious practices. Despite the long-standing association of the American bill of rights with absolute religious freedom, it wasn’t until the early 1970s that the federal government stopped its surveillance of places of worship. Before that, FBI director J. Edgar Hooper spent much of his term spying on the comings and goings of rabble-rousers as varied as the Rev. Martin Luther King, Jr. and assorted Ku Klux Klan members.
Now that Ashcroft is poised to lift the 30-year-old ban, how will Americans respond? By now we have to assume Ashcroft is accustomed to a certain amount of criticism; his remarkable tenure as wartime AG has pitted him against civil libertarians and even a few conservatives who take issue with what they see as the administration’s encroachment on individual rights. This week, however, even Ashcroft may be surprised by his opponents, whose ranks include not only members of the ACLU, but some dedicated Christian conservatives. That’s despite the fact that the obvious target of any surveillance activity will be Islamic groups and mosques not Baptist churches or reform synagogues. "Freedom of religion," says Gregory Magarian, assistant professor of law at Villanova University, "is a very popular, very unifying political cause. It breeds otherwise unlikely alliances."
There’s a chance, of course, says Magarian, that the government will use this new power judiciously, no one’s rights will be threatened and opposition will be virtually non-existent. After all, religion, Magarian says, echoing Ashcroft’s own statements, cannot be a special kind of shield against legitimate criminal investigations. "If you run a religious organization and the government has true probable cause to believe your group is helping terrorists, you shouldn’t be able to hold up religion to keep the government inquiry at bay."
The problem comes in, continues Magarian, when religion itself becomes the reason for an investigation. "Religion can’t form the basis for launching an inquiry in the first place," he says. "That kind of singling out flies in the face of our laws. If there are any concrete disadvantaging treatments or consequences including chilling of expression or practices of worship " there will probably be legal challenges.
Happily, such treatments have been largely absent from American Muslims’ religious lives, says Ibrahim Hooper, communications director for the Council on American-Islamic Relations, a Washington-based Islamic advocacy group.
While Hooper agrees with Ashcroft’s premise, he hopes the focus remains trained on terrorism rather than on one particular religion. "Obviously if there is some indication of wrongdoing, that’s one thing," he says. "But if there’s no evidence of a problem, then it’s intrusion something no American should want to see, because you never know who could be next. People who don’t share our religion or background may figure it’s all well and good to say go after the Muslim groups or the Arab groups," Hooper says ruefully, "but what about the next round of surveillance is directed at you?"