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Introduction Participants Contents
I. The International Religious Freedom Act (IRFA): A View from Congress John Hanford: One of the significant untold stories of our day is the problem of religious persecution. Each day brings new stories of persons imprisoned, tortured, raped, harassed, even murdered for their faith. In the communist world it is fair to say, in a broad sense, that conditions are improving, though still serious in some countries. But in the Arab and Hindu worlds circumstances seem to be getting worse, with many of the victims suffering in silence. In fact, it’s interesting to pause and think that if our meeting were occurring tonight in China or Saudi Arabia, Laos or North Korea, we might well be interrupted, hauled off to the police station, arrested, interrogated, perhaps imprisoned for days or weeks. Perhaps Trinity College would be bulldozed to the ground. And we could expect the ringleaders of our gathering, Mark Silk and Rosalind Hackett, to be in for even worse treatment, I fear!In the past several years the issue of religious persecution has received increased attention in the media. It is important for us, however, to have an accurate handle on the facts. I think it is fair to say that in this century there have been more persons martyred for their faith than in all the previous centuries combined. While that may be due in part to the fact that the population is greater today than in past centuries, it is also the grim result of horrors committed under Hitler, Stalin, Mao Zedong, the Armenian genocide, as well as civil wars based at least in part on religion, such as the one which has raged for years in Sudan. But when it comes down to the question of how many are martyred this year or last year, the estimates vary so greatly that it is very difficult to come up with accurate figures, and it is here where I would urge some degree of caution. Most importantly, though, as much as half of the world’s people live under serious restriction of their ability to practice or to choose their faith freely, in accordance with the dictates of their own conscience. Therefore, the real story of religious persecution, when properly understood, can be seen to be as or more serious than the more sensationalized versions which are sometimes put forth. Now, the question is sometimes asked, what business do we as a nation have caring about this problem and "imposing our values" upon the rest of the world? In our increasingly secular society there would appear to be a growing aversion to church/state issues. In this regard, there are several preliminary points that may be worth touching on. First, as I am sure many of you would agree, it is possible today to lose sight of the fact that this issue is at the very core of our nation’s heritage. Our forefathers viewed it as one of the most precious of freedoms, with many of our nation’s early settlers coming to America for the very purpose of fleeing religious persecution. To quote just one of our founding fathers, George Washington stated, "I beg you will be persuaded, that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny and every species of religious persecution." Second, the issues that we’re talking about overseas in the way of religious persecution are almost always more serious than the ones we deal with here in the United States regarding church and state. That is not to take away from the importance of the church-state issues here, but the violations abroad can be so egregious that weighing in on such matters has long been a non-controversial, bipartisan issue on which most Americans agree. In my years of working on this issue with Senator Lugar, we have never found it necessary to approach this matter from a partisan perspective. While it may not often be possible to say this, Ted Kennedy and Jesse Helms happily join together, along with a broad representation of their congressional colleagues, in protests to foreign governments over serious restrictions on religious freedom. And finally, while many nations may not like it, America has long maintained as a part of its agenda to "meddle" in other nations’ affairs, in order to assert its influence where justice and basic human rights are denied. This is reflected in the State Department’s annual Country Reports on Human Rights, in which religious freedom is viewed as a central part of our nation’s human rights policy, as well as in various United Nations documents to which the United States is a party. Now, over the past 10 or 12 years, the issue of religious freedom as a human rights concern has gradually gained increased attention, as some of us can attest from the significant efforts which have emanated from Capitol Hill and from certain non-governmental organizations which focus on this issue. Generally, this work has been approached on a country-by-country basis, and a great deal of significant intervention has been accomplished in this way. Then, in 1996, Michael Horowitz, a man of Jewish heritage, became interested in this issue and helped the cause significantly by generating increased media attention. He also had as a specific objective that there should be legislation passed to address this issue. He was the primary author of The Freedom from Religious Persecution bill, or "Wolf-Specter bill," as it was commonly called, which was introduced in Congress in May of 1997. Congressman Frank Wolf, a long-time champion of this issue, was interested in pushing ahead with this legislation, without making many changes, because he was concerned about the risk of losing momentum. Instead, he encouraged others who might favor a different approach to draft alternative legislation. The Wolf-Specter bill got bogged down for about 12 months in the House International Relations Committee, where a number of changes were necessitated. But eventually, in May 1998, the bill reached the House floor, where it passed overwhelmingly, by a vote of 375 to 41. Despite this support, however, the bill, as it stood, was not going to be passed by the Senate (where, after twelve months, only six Senators supported it) nor, according to certain Administration sources, was it likely to be signed by the President. Consequently, several of us who had worked for a number of years on cases of persecution decided that we would draft an alternative bill, which we did, with our bosses’ blessings and guidance as well as with the counsel of a number of experts, including those on the ground overseas and others in humans rights work and international law. We had learned through experience what we felt was most productive on this issue, and we sought to incorporate this experience into the bill. In March of 1998, the International Religious Freedom Act was introduced in the Senate. To sum up briefly our goals, we sought to draft more effective and comprehensive legislation, that would result in regular, definite action being taken. We wanted to tailor such actions to problems on a country by country basis. We wished to employ a fuller array of actions from our foreign policy toolbox. And, again, we wanted a bill that would pass. In essence, our objective was to put into place a permanent apparatus that would wisely
and strategically leverage our government’s influence on this central human right,
constantly monitor this issue around the world, and respond to egregious problems with
appropriate emphasis through an array of measures available through our nation’s
diplomatic relationships. And we sat down with the Administration for hours and hours on end. Also at the hearing it came up that Republican senators were not pleased with the bill because of the sanctions provisions. It took us most of the summer to work through constant negotiation of those changes—up until probably a couple hours before the bill passed. We got all kinds of abuse. I remember an article in the summer that appeared in a Jewish paper in New York that said that we were dawdling while Christians were dying. Fine, I guess, if that’s what you want to say, but we were negotiating, and if negotiating was dawdling then I guess you have never been through negotiation. We also got criticized by conservatives. A lot of people would have thought that that this is viewed as a Christian Right bill, but many in the Christian Right criticized us for negotiating with the Administration. The reason why I raise this is that a 98-to-nothing vote in the Senate and a voice vote
in the House is not an accurate picture of what actually happened. This was a very
contentious debate. In a sense, all we really can control is our own government’s behavior or efforts, and even then we have a hard time controlling that. But we wanted to put in place a permanent mechanism, one that wouldn’t just fall apart when the attention to religious persecution generated over the last few years wanes and another issue takes its place. We wanted something permanent, supported by enough accountability that the mechanisms would work. We also wanted to create the greatest possible incentive for other governments to change their behavior. Levers of influence may differ from one country to another. And I want to emphasize that what’s at stake here isn’t just some abstract foreign policy concept. We are talking about the blood of men and women and children. We bear serious responsibility for any actions we take that impact their lives.We sought to build IRFA on existing mechanisms and to use the whole foreign policy toolbox. For instance, we looked at the negotiation principles that help make sanctions effective in trade violations, and we sought to apply similar principles to this area of human rights. Because we were building on current definitions, we also got away with a stronger bill. The Wolf-Specter definition constituted a much higher threshold of persecution. And in those furious, hectic last hours leading up to IRFA’s passage, an interesting aspect of the legislative negotiations was that those who sought to weaken the bill were arguing for the higher threshold and definition to replace the definition that we have. But because the IRFA definition is consistent with other parts of U.S. law, like Section 116 of the Foreign Assistance Act, we could say, "No, this is consistent with stated and codified U.S. policy, and we’re going to stick to it." We spent a long time on the definitions of religious persecution, as these are the starting points for policy. You have to include violations of religious freedom both at the policy level and at the level of threat to life and limb, because you can’t really divorce the two. One leads to the other. There were a lot of complaints from some sectors that we were creating a hierarchy of human rights and that somehow this was special pleading for one group. We in fact carefully crafted provisions such as training, awards, and others to deal with human rights in general, including religious freedom. We do deal explicitly with religious freedom in a number of other areas. But I think all of us were working from the experience and belief that these were corrective measures in an area that’s been neglected in our policy. In addition to accurate definitions and a broad scope, we wanted permanent profile. As you may know, in the diplomatic world symbolism is a lot of what carries the day. And so we wanted to send the signal to the world that the U.S. cares so much about this issue that it has a permanent ambassador on religious freedom who’s going to negotiate and represent this issue around the world. Also, you have the Commission, which is really quite unique in terms of its foreign policy role, and probably in terms of the scrutiny it will receive from around the world. The Commission will likely be poking its fingers in the eyes of a lot of countries, and they won’t like it. Next, we have training. The front lines of U.S. foreign policy are the people who meet face to face with instances of persecution. We put in place a new requirement for the same training across-the-board for refugee officers as for asylum officers. Until now, refugee officers, who work on-site abroad, were not subject to the same level of training as asylum officers, who work in the U.S. We also required training for Foreign Service officers and ambassadors. It used to be optional to train these folks in human rights. Now it’s not optional anymore. Really the cornerstone of our bill, however, is that action is required in response to violations of religious liberty. This goes back to question of levers of influence. We wanted action to be mandatory, but also to be flexible, and for the U.S. to have the possibility of escalating its response.One key part of this required action is the determination of whether a country has reached the higher threshold of violations, consistent with international and U.S. human rights standards. A determination, as an official up-or-down decision, generates immensely more activity from our government than does a simple policy statement. We included in the sanctions process that follows such a determination a lot of input and consultation from various actors, including NGOs and the Commission. We built in several steps, with the primary goal of reaching an agreement to cease the violations. The goal, again, is changing behavior. It’s not punishment. We also wanted to increase the quality of the State Department’s reporting. If you have poor facts, you have poor policy. Reporting has a sunshine effect, creating embarrassment for violator countries. It provides accountability for the U.S., which will do more if it must report on its actions. But perhaps one of the most important factors is the advocacy implicit in reporting. The most effective action can be to keep asking the right questions, keeping at it and going back and going back and going back. There are times when the U.S. government has done a terrific job of this and times when it has not.The yearly IRFA cycle starts with the annual Country Reports on Human Rights,
which already has been in place for decades and usually comes out in early February. The
Commission is tasked with convening within 15 days of that time, and coming out with its
own report by May 1, highlighting the worst situations and providing policy
recommendations. IRFA next requires a State Department Annual Report on Religious Freedom,
due September 1. Action then splits off into two areas. For violations falling under the
general broad definition of religious freedom violations, the president is required during
the following year to take action from a menu of 15 measures, which includes non-economic
measures. However, if the violations reach the more serious level, requiring a
determination, that kicks off the whole negotiation and sanctions process. Within 90 days,
a decision must be made regarding which action to take, from the stronger menu of options.
IRFA, on the other hand, rarely even uses the word "persecution." The term "persecution," while certainly a reality in the world, can be very problematic when it comes to precise legal definitions and distinctions. We decided to base IRFA on the more broadly encompassing terms, "violations of religious liberty" or "violations of religious freedom," which obviously would include very severe persecution. IRFA, with its definition, as the mammoth State Department report on religious liberty worldwide would indicate, potentially will address a much broader array of countries. Second, as far as the measures in response to these violations of religious liberty or persecution, Wolf-Specter employed what some of us described as a "one-size-fits-all" approach. Wolf-Specter applied the exact same response, which was the termination of all U.S. economic assistance as well as some targeted trade sanctions, to any and all countries found guilty of "religious persecution." Again, it is debatable which countries those might be, but whatever countries came under that definition, the exact same punishments would be applied. Some of us were concerned that Wolf-Specter did not take account of the profoundly consequential variables, such as the nature of America’s relations with these countries, the reasons why persecution takes place, what particular levers we may have with those countries. To put it simply, Wolf-Specter would have treated countries like China, Egypt, Pakistan, Israel, Saudi Arabia, Iran, and North Korea all the same. And as you know from that list some of those countries are stronger allies of the U.S., others are almost our mortal enemies. With some we have strong economic ties, while with others we don’t have any economic relationship. Some persecute just Christians, others persecute people of many different faiths. It seemed to us perhaps not as responsible or as effective an approach to use the same measures in response to "persecution" when so many different variables exist. Wolf-Specter, likewise, employed an "all or nothing" approach in terms of measures that would be applied against a violating country. There was not, we believed, sufficient room for gradation or for scaling up or scaling down. The offending country would either be hit with everything—cut off all U.S. assistance and some targeted trade sanctions—or nothing. For several of us involved in the issue of religious persecution—and I am convinced that proponents of all the bills obviously care very deeply about the issue—we feared that because of its rigidity, Wolf-Specter would have hardly ever, in fact, been implemented. It almost could be characterized as a "do-nothing" bill. If you have only the option, metaphorically speaking, of using a nuclear-scale weapon against a country or doing nothing, a lot of times you will do nothing. IRFA in contrast, sought to ensure that action would be taken while preserving flexibility to tailor the response to the particular conditions within the country. I also wanted to offer a few of my own thoughts on some of the foreign policy implications of IRFA. IRFA stands squarely in the Wilsonian tradition of idealism and morality as components of U.S. foreign policy. However, as we all know, such an approach is not without its critics, including those who would embrace realism or Realpolitik and who would believe that there should be little or no place in American foreign policy for loftier notions such as human rights. Some of these voices—we heard a lot of these arguments last year—would say that American foreign policy should be driven only by American national interests such as our security needs or our economic interests. In response to those critics I want to make a couple of observations. While I am wary of emphasizing the social utility of religion—I, for example, am a Christian not because it does good things for me but because I am persuaded of the normative truth of the Christian faith—I do believe religious freedom can often be beneficial for civil society and culture. Simply put, it is our firm conviction that we should promote religious liberty overseas because it’s the right thing to do—there’s that Wilsonian idealism coming through—but also because it is in the American national interest. One would be hard-pressed to find many, perhaps even any, countries that both respect religious freedom yet also commit serious human rights violations in other areas and/or pose a serious security threat to the United States. In a modification of the "democratic peace" theory, I also notice a correlation between religious freedom and peace and stability. Countries that respect religious liberty generally do not fight each other, and generally respect the rule of law and democratic values. Religious freedom, then, serves as one indicator of a country’s health, and I believe it is in the vital national interest of the United States to promote it. A related concern has been expressed that this particular measure, by prioritizing religious liberty, imposes a "hierarchy" of human rights. I would make two observations here. First, I believe the perception to be largely accurate that in recent years the U.S. foreign policy establishment has been relatively neglectful of religious liberty, in comparison with its attention to other human rights issues. IRFA stands as one attempt to remedy this neglect. Second, religious freedom does not exist in isolation, but rather encompasses many rights, including rights to freedom of speech (e.g. proselytism), assembly and association (worship), conscience, etc. Again, we would be hard-pressed to find a country that respects religious freedom while engaging in systematic and flagrant violations of other rights. A rising tide, then, lifts all boats. Concerning some domestic implications of this bill, it may also serve as a helpful reminder of the relationship between foreign policy and the consent of the governed in a democracy. And while I would defend to some extent the historic pattern of elites in the United States determining and implementing American foreign policy, I do believe that this latest moment and this latest movement represent an important re-assertion of what you might call the populist impulse in a very healthy sense. Simply put, a significant number of the American people out at the grassroots seem to have decided they want their governments and their nation to reprioritize its foreign policy to reflect a value that they hold very dear—namely, religious freedom. And I do hope that IRFA gives a responsible expression to this impulse. Likewise, I am hopeful that this law and the grassroots support behind it will help guard against a couple of somewhat unhealthy tendencies in American life at times. One would be isolationism. IRFA keeps the United States involved in the international community and even, to mention one particular demographic group, it will keep religious conservatives involved in international relations. Hopefully this Act can also serve as a bulwark against hyper-nationalism. This Act is not trying to codify the First Amendment overseas, but rather builds on Article 18 of the United Declaration of Human Rights and other international accords. IRFA seeks to strengthen, rather than undermine, international institutions such as the United Nations and the Organization for Security and Cooperation in Europe. Two concluding thoughts. We need to beware of utopianism. This bill is not going to end religious persecution. But at the same time we need to be wary of cynicism as well. IRFA should not be caricatured as some sort of legislative pay-off to a particular constituency such as the Christian Right. I believe it represents a significant, substantive step in rendering America’s actions more consistent with America’s ideals, and invigorating American foreign policy on behalf of a profoundly worthy cause.
Discussion Berel Lang: There is clearly a considerable apparatus and organizational chart attached to the implementation of this bill, and I just ask the direct question—what’s the cost of implementing this bill? Laura Bryant: The cost of the implementation in our initial bill was zero. And one of the reasons for that was agreement among fiscally conservative folks who did not want any more funding added to the bill. Late in the process, however, there was a $3 million appropriation put in place for the Commission so that they could be more independent, hire staff, that sort of thing. In terms of the actual cost of implementing the rest of it, I don’t think it’s going to add significantly, although the reporting burden on the State Department is probably the largest impact in that sense. We created more work for the State Department. And if they come back and say, "We need more money for this Department," we’re glad to think about providing that. But a lot of the problem is a matter of resource allocation within the State Department. The human rights bureau, you may know, is the least funded functional bureau within the State Department. And that says something about priorities. I think there’s a certain extent to which some of the existing resources need to be rerouted. Ned Cabot: I have always found it useful to evaluate a piece of legislation based on its effect on the worst case. In this area, according to some groups like Christian Solidarity International, the worst case is Saudi Arabia. When I look at the actions that the President could take with respect to Saudi Arabia, some of them are slaps on the wrist. The President could delay or cancel science exchanges, cultural exchanges, official or state visits. But Section 405(a)11 has real teeth. The President could withdraw, limit, or suspend U.S. security assistance to Saudi Arabia. My question is whether Congressman Clement, Senator Lugar, or Senator Nickles would favor the withdrawal, limitation, or suspension of security assistance to Saudi Arabia. If not, why not? And if the answer is no, does this Act matter? John Hanford: Well, I will take a stab at this. I would agree that Saudi Arabia is one of the most repressive nations on the issue of religious freedom. It can be heart-wrenching to hear of men or women receiving hundreds of lashes, given out over a period of time, or of persons beheaded for their faith. Clearly, one value of this Act is that it sends an important message. It puts a marker out there for the world that our nation cares so deeply about this basic human right that we’re willing to back up our principles with monitoring, with scrutiny, with vigilance, and with action. When it comes to official pressure or action under the Act, the State Department has the option of classifying measures taken. In the case of a country such as Saudi Arabia, there is certainly a greater likelihood that such actions, when necessitated, will be classified. We had to be realistic. We had to take into account that by giving the President and the State Department a greater degree of flexibility and options, the end result would likely be, in actuality, that more meaningful action would be taken against a friend or ally. I believe experience teaches us that the alternative of a simplistic, draconian, "one-size-fits-all" approach to a particular foreign policy concern such as this is likely to result in little to no action at all. Laura Bryant: I would just like to add to that in the last few years, for the first time Saudi Arabia stated that private worship is basically allowed in homes. That was not true before, and I think the change has something to do with the noise these religious freedom bills were making internationally. Ira Rifkin: In covering the creation of this bill in Washington, and during that process in those couple of years, I heard repeatedly from people who represented certain advocacy groups in Washington, that this was part of the United States’ policy to meddle in other countries’ affairs. And they considered it to be an attempt to foster American type religion in countries whose leaders had no desire to accept it. They saw this, for example, as an attempt by the evangelical community to force nations to accept mission work that they do not now accept. Saudi Arabia is a prime example. William Inboden: I guess to exaggerate a little bit, with a bill like this, to get 98 votes and have the Senate pass it, there’s officially 98 different reasons for voting yes. Everyone had different reasons for getting behind it and so it could be easy to characterize it as an American bill or a First Amendment bill or a Christian Right bill or, for that matter, Christian Left bill. And all those things are true and none of them are true. Laura Bryant: We felt all along we were on very solid ground in terms of international standards. We were using the Helsinki Accords, where you have very clear guarantees of religious freedom, as well as numerous other international instruments, including those of the United Nations. Steve Moffitt: The point you made, "Isn’t this America trying to impose its interest on the rest of the world?" I am just going to point you quickly to the United Nations Charter, Article 1, paragraph 3. The purpose of the United Nations is to achieve international cooperation promoting human rights. One hundred and five nations are members of the United Nations. They all signed up to that, and to the Universal Declaration of Human Rights. So when other countries say it’s a United States bill, we say no, your government signed up to this and we’re simply asking you to adhere to something you signed onto. If you don’t mean it, then get your name off it, but your name is on there. Jeremy Gunn: I first need to make it clear that the opinions I am offering today are personal and they do not necessarily represent the viewpoints of the U.S. Institute of Peace, the U.S. Department of State, nor the U.S. Commission on International Religious Freedom. I would like to ask a friendly question, but one with a twist of lemon in it. I am thinking of IRFA from the point of view of its implementation. When Congress wants to defend the United States, it decides to give a great deal of money to the Pentagon so it will have a nice array of military devices that it can purchase. But when Congress decided to protect religious freedom, it allotted no additional funds to the State Department at all. The area within the State Department that needs to monitor religious freedom for 194 countries in the world is very poorly funded. John Hanford: Well, Senator Lugar would agree with you, Jeremy, I think, but when we were drafting this bill we had to go for what was achievable, and so we put into place this process. Laura Bryant: We want to revisit the issue of funds, and have had some discussion about that. Part of the problem, though, is allocation. Other bureaus have much greater budgets. I happen to think human rights are more important than many of these other current priorities.
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