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Can An Apology to Iran Pave The Road To Democracy?
Part 2
In Part 1 of this essay I urged President Obama to make an apology to the Iranian people, and I asked him to back that apology with a gift. This was no ordinary gift that I wanted him to bestow upon the Iranian people. I wanted him to set up a fund to help 5,000 Iranians make the Hajj to Mecca every year for the next 26 years. This might seem like madness, but I attached one condition to the gift that changed it from a rose of appeasement into a dagger aimed at the heart of the Iranian thugocracy. If you have not yet watched my previous video, you should do so now.
Would my proposal to sponsor Iranians going on Hajj violate the First Amendment’s Establishment clause? This clause states
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.
I don’t claim to be an expert on this, and all I can do is give you a definite “Maybe yes, maybe no.” There is one case that I know of that may shed some light on this. I am referring to Lamont v. Woods which was heard before the Second Circuit Court of Appeals in 1991. This case involved the Constitutionality of funding sectarian schools in foreign countries with American taxpayer dollars. One of the programs under the United States Agency for International Development is the American Schools and Hospitals Abroad program. This program gives taxpayer’s money to individuals and organizations within the U.S. who then use that money to sponsor schools overseas that promote American ideas and values. Clearly, this program is intended to promote our foreign policy interests by planting seeds of goodwill abroad. But what happens if those foreign schools are overtly religious? Would funding them violate the Constitution’s establishment clause? This was the question that was put before the Lamont Court.
The Court examined the history of the Establishment Clause to determine its true meaning, and it found that the history was muddled. It appears that there were two motivations behind the establishment clause. 1) The Establishment Clause was written to prevent the establishment of a national religion. And 2) The Establishment Clause was written to prevent taxpayers from being forced to pay money to organizations that promoted religions that they didn’t believe in. Clearly, funding sectarian schools within the U.S. would violate both these principles behind the establishment clause. But spending money on sectarian schools outside the U.S. does not aid in the establishment of a national religion. It may force taxpayers to aid a religion that they don’t approve of, but is this permissible if it advances our national interest as well?
The Court urged a flexible approach and noted that some support of religious organizations that would clearly be unconstitutional within the U.S. might pass Constitutional muster if it supported foreign policy objectives. There was no easy test and the Court said that each situation must be decided on its own merits. The Court noted . . . “traditional Establishment Clause standards are flexible enough to accommodate any urgent dictates of United States foreign policy.”
Here are the key passages from Lamont v. Wood that address this issue (citations omitted):
In our view, domestic Establishment Clause jurisprudence has more than enough flexibility to accommodate any special circumstances created by the foreign situs of the expenditures, although the international dimension does, we believe, enter into the analysis.
Whether governmental action violates the Establishment Clause depends on whether it has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive government entanglement with religion.. As Judge Sand observed, the ASHA program has the legitimate secular purpose of assisting foreign schools that teach American ideas and practices. The focus of the debate in this case is therefore on the primary-effect and excessive-entanglement questions. Because the former question will likely be critical on remand, we offer the following guidance for the district court.
. . .While the analytical shortcut provided by the pervasively sectarian test may generally be appropriate, it should not be mechanically applied in every case. As the Supreme Court cautioned . . . every Establishment Clause challenge calls for "line-drawing," and "no fixed, per se rule can be framed":
The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application.... The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."
Given the possible foreign policy ramifications of invalidating grants under the ASHA program, it would be particularly inappropriate to adopt a mechanical approach in this case . Therefore, in our view, once it has been determined that a particular ASHA grantee is pervasively sectarian, the government should be permitted to demonstrate some compelling reason why the usually unacceptable risk attendant on funding such an institution should, in the particular case, be borne. For example, the fact that a particular grantee is, as a practical matter, the only channel for aid, or that a given country has no secular educational system at all, may warrant overriding the usual Establishment Clause presumption. The court would then scrutinize the manner in which the institution may use its grant in an attempt to ascertain whether, in reality, the grant would have the principal or primary effect of advancing religion.
Jessica Powley Hayden wrote an award-winning analysis of the Establishment Clause for the Georgetown Law Journal that discusses this in more detail. She notes that the United States Agency for International Development has several programs in Indonesia that are designed to compete with radical Islamic movements to win the hearts and minds of the local population. For example, USAID funds the Liberal Islam Network's (JIL) "Religion and Tolerance" radio show. It also sponsors a program that creates flyers that are distributed outside of Mosques. These flyers target the "pious Muslim male population in Indonesia” by using "Koranic verses and Islamic symbols to discuss messages of tolerance and peace." (See Mullahs on a Bus, Jessica Powley Hayden, Georgia Law Review", Vol. 95:101, p.180) These programs end up promoting moderate Islam as a way of inoculating the population against more virulent anti-Western versions of Islam.
Hayden's paper goes into a very long and detailed analysis into how the courts have interpreted the Establishment Clause and how they should interpret the Establishment clause. Hayden's bottom line is this (p.203-204):
If the court finds that the use of U.S. funds to promote a certain program infringes the Establishment Clause and would be unconstitutional within the United States, this need not mean it would automatically find the program unconstitutional. Instead, the court could employ a balancing analysis (much like that suggested in Lamont) to determine if the program should be upheld. First, the court should determine if there is a compelling national security interest. Second, assuming that the national security interest is compelling, the program should be narrowly tailored to serve that compelling government interest.
So under this test, I think my program does pass Constitutional muster. The intent of the program is to develop better relations with the Iranian people by pressuring the current regime to hold new elections. Replacing the current regime is one of our most important national security issues. Iran is implacably hostile to the United States and Israel, and its nuclear ambitions pose a threat to many nations within the Middle East. It seems likely that either Israel or the United States will be at war with Iran within a year if the current regime remains in power. So it is absolutely essential that we do everything we can to bring about regime change. Of course, having new internationally monitored elections doesn't guarantee that the current regime will be swept out of office. It is possible that Ahmadinejad could win. But that doesn't seem likely. And it is also possible that whoever replaces Ahmadinejad may be just as hostile to the U.S. and Israel and may be just as intent on developing their nuclear program as Ahmadinejad is. This is a possibility that we can't avoid. But even so, we have a compelling interest to do what we can to promote a democratic movement that could potentially bring about a change that will enable us to settle our difference without going to war. So there is a very compelling national security interest justifying my plan to fund Iranians to go on a Hajj.
Now, is this plan narrowly tailored? I think so. First, t really doesn't promote religion per se. Those who will be the beneficiaries are already devout Muslims, so we will not be spending money to convert people to Islam. Second, the program is aimed at establishing better relations with the Iranian people by acknowledging our past transgressions. And third, the program will last for 26 years and then come to an end. Those 26 years have a special significance because that is how long the Iranian people had to endure the Shah who we brought to power by engineering the overthrow of Mossadegh. Since the program is for a compelling national interest and it is narrowly focused, it should be Constitutional.
Enough about the Constitutionality of my proposal. Now I want to discuss a few reasons why I think it would actually work if it was implemented. First, there is a deep division amongst Iran's clerics as to the legitimacy of Ahmadinejad's government. Ahmadinejad and Khameini are trying to portray the protestors as tools of the West, but this claim is not so easy to sell now that the Association of Researchers and Teachers of Qum have come out against the regime's repression. Ayatollah Hossein Mousavi Tabrizi, a leader of the Association said :
"The least we can say is that this government's legitimacy is in doubt. A majority of the people don't believe that Ahmadinejad was their vote," "People were peacefully protesting election results and the response to that should not be the bullet,"
It is uncertain how influential the Association of Researchers and Teachers is, but the fact that there is a a rift amongst the clerics should not be underestimated. More importantly, an even bigger fish has now issued a fatwa against the regime. Ayatollah Hossein Ali Montazeri has a lot of "street cred", or should I say "mosque cred" in Iran. He helped lead the Iranian Revolution in 1979 and at one time he was considered to be a likely successor to Ayatollah Ruhollah Khomeini. He has condemned the current regime in the strongest possible terms and he has called for Khameini's removal from power. This is the most significant show of dissent since the foundation of the Islamic Republic of Iran in 1979. My proposal to sponsor Iranians to go on Hajj contingent upon Iran holding new elections might strengthen the hands of those clerics who oppose the current regime.
Second, it is clear that the gloves have come off for Iran's Revolutionary Guard and they are acting like storm troopers to crush dissent. Though some of the Clerics oppose the regime, they are not speaking with one voice right now, and there are enough hardline Clerics supporting the regime to give those in the Revolutionary Guard the justification they need to suppress dissent. The hardliners believe that only God can convey legitimacy to the government and that legitimacy does not come from a vote amongst the people. I'm going to link to an AP story in the sidebar that I want you to read. According to this story, Ayatollah Mohammad Taqi Mesbah Yazdi is believed to be Ahmadinejad's spiritual advisor, and he told the Revolutionary Guard that the Supreme Leader--meaning Khameini--is blessed by God and the Revolutionary Guard must obey him. That is all the justification they need to knock heads and crush dissenters.
Third, there was a report in Al-Arabya in June that Akbar Hashemi Rafsanjani was trying to form a collective leadership to replace Khameini. What is particularly interesting--if this report is true--is who was at the meeting. Ayatollah Ali al-Sistani is probably the most influential Shiite leader in Iraq, and though he himself wasn't at this meeting with Rafsanjani, his right-hand man was. This is HUGE news if it is true, and I'll post a link to a story by Steve Schippert at the Threats Watch blog that I want you to read. Schippert reports that al-Sistani made two important statements in 2007. Sistani said: "I am a servant of all Iraqis, there is no difference between a Sunni, a Shiite or a Kurd or a Christian," and he said that Islam can exist within a democracy without theological conflict. Schippert also notes that Sistani is very popular in Iran and that there is a rivalry between Sistani and Khameini. If Sistani has any influence over the government that emerges then we might see a significant change in Iran's attitude toward the west.
Fourth, Fareed Zakaria wrote a story for Newsweek claiming regime change in Iran would be difficult. One paragraph of that story is particularly relevant:
There is one way religion could be used against Iran's leaders, but it would involve an unlikely scenario: were Iraq-based Grand Ayatollah Ali al-Sistani to issue a fatwa condemning Tehran in any way, it would be a seismic event, probably resulting in the regime's collapse. Remember, Sistani is Iranian, probably more revered in the entire Shia world than any other ayatollah, and he is opposed to the basic doctrine of velayat-e faqih that created the Islamic Republic of Iran. His own view is that clerics should not be involved in politics, which is why he has steered clear of any such role in Iraq. But he is unlikely to publicly criticize the Iranian regime. (He did, however, refuse to see Ahmadinejad when the latter visited Iraq in March 2008.)
My proposal is aimed at influencing the hearts and minds of the Iranian people. It is intended to strengthen the hands of those who want new elections. I want the Iranian people to know that their government refuses to hold elections, even when it is given the incentive of an American offer to fund the Hajj for thousands of poor Iranians. And I want al-Sistani to see the Iranian government turn down our offer. I don't know what al-Sistani will do do, but maybe, just maybe, the offer might help convince him that the time is ripe to publicly denounce the Iranian government. Maybe if he denounces the thugocracy in Iran as illegitimate then this might cause divisions within the Revolutionary Guard and weaken their resolve to prop up the regime. Maybe, just maybe my proposal might be the final straw that breaks the back of an already fragile regime.
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