Law
11:04 am
Fri August 31, 2012

American Taliban Sues For Religious Freedom

Originally published on Fri August 31, 2012 1:39 pm

Should Muslims convicted of terrorism be allowed to gather together in prison to pray? That's the question being raised by John Walker Lindh, the so-called American Taliban.

The U.S. citizen converted to Islam as a teenager. Shortly after the Sept. 11, 2001, terrorist attacks, Lindh was caught in Afghanistan. He pleaded guilty to aiding the now defunct Taliban government there and to carrying a weapon.

He's been serving a 20-year sentence in a high-security section of a federal prison in Terre Haute, Ind. In the Communications Management Unit, guards monitor his every word and action, as well as those of two dozen other Muslim prisoners.

Now, Lindh is suing the U.S. government, saying the prison is stifling his religious freedom. He says his faith requires him to pray with fellow Muslims up to five times a day. But the prison will allow only one group prayer a week.

Security Vs. Religious Liberties

"A congregational prayer elevates the magnitude and the importance of the prayer from a religious sense," says Ken Falk, the legal director of the ACLU of Indiana, who is representing Lindh. "And by denying him this right, his religious exercise and his religious beliefs are being substantially burdened."

In hearings before a federal judge in Indianapolis this week, the government argued it would be crazy to allow Muslims convicted of terrorism and other crimes to gather together several times a day. The government could not be reached for comment.

"The government's first argument is, 'Hey, these people are security risks, and if they're praying, they're doing it in Arabic, and we don't know what they're saying,' " says Victoria Toensing, a former federal prosecutor. "They could be plotting something."

Toensing says that would be a persuasive argument — except for a law passed in 1993 called the Religious Freedom Restoration Act. That law says the government cannot infringe on anyone's religious rights — even those of prisoners — unless it has a compelling reason. That's a high bar for the prison to clear.

"If they can show that group prayer is a guise or cover or pretext for plots, then they're going to have a pretty good case that security would be threatened by daily prayer compared to weekly prayer," says Ira Lupu, a constitutional law expert at George Washington University.

But he says it can't be a theoretical argument: The prison needs to show that there have been problems at this particular prison.

"If they can't show that, if they're just speculating about the hazard of some sort of plot going on, I think their case is much weaker," he says.

Snags In The Government Case

Some legal observers say the government has presented a fairly lukewarm case in that regard. The government did say in court that prisoners had on occasion been disruptive at prayer time and that Lindh himself had delivered a "radical" sermon in February.

But Falk notes that Lindh wasn't disciplined for his speech. And until three years ago, he says, Muslims prayed together every day without anyone stopping them. Even now, they can roam freely outside their cells from 6 a.m. to 9:15 p.m.

"They're free to sit around and talk in groups," he says. "They can talk about religion and world politics; they can do all sorts of congregant activity, except they're not allowed to pray together for the daily congregant prayers."

Falk says singling out prayer violates the 1993 law.

The government has another problem, says Andy McCarthy, a former federal prosecutor who handled terrorism cases in New York. Even if the government has a compelling reason to curtail Lindh's right to group prayer — say, security — under the law it has to do so in the least restrictive way. McCarthy says there are other ways to make sure the Muslims don't plot during prayers. For example, they could space them apart.

"They could allow them to pray at the same time, see each other, but not in a setting where it could be dangerous," he says.

Given the prison's history of leniency with the Muslims and the 1993 law's strict requirements, McCarthy says, the government has a steep hill to climb.

"If I had to bet," he says, echoing others, "I would bet [Lindh] would be praying communally at least once a day."

The judge won't decide the fate of communal prayer for at least two months. But many legal experts say it's ironic that the American Taliban, whose religion turned him against the United States, is now turning to U.S. law to protect his religious rights.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

MELISSA BLOCK, HOST:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block. Should Muslims convicted of terrorism be allowed to pray together in prison? That's the question being raised by John Walker Lindh, the so-called American Taliban.

Lindh, who pleaded guilty 10 years ago to aiding the Taliban in Afghanistan, is suing the U.S. government for the right to pray with other Muslims. NPR's Barbara Bradley Hagerty has the story.

BARBARA BRADLEY HAGERTY, BYLINE: We haven't heard much lately about John Walker Lindh, the California man who converted to Islam as a teenager and went to Afghanistan to help the Taliban government. He's been in federal prison in Indiana, in a special section called the Communications Management Unit, where guards monitor every word and action of Lindh and two dozen other Muslim prisoners.

Now, Lindh is suing, saying the prison is stifling his religious freedom. According to Ken Falk, his attorney from the ACLU of Indiana, Lindh believes his faith requires him to pray with fellow Muslims up to five times a day. But the prison will allow only one group prayer a week.

KEN FALK, ACLU OF INDIANA: A congregational prayer elevates the magnitude and the importance of the prayer, and by denying him this right, his religious exercise and religious beliefs are being substantially burdened.

HAGERTY: In court hearings this week, the government argued it would be crazy to allow Muslims convicted of terrorism and other crimes to gather together several times a day. Victoria Toensing is a former federal prosecutor.

VICTORIA TOENSING: The government's first argument is, hey, these people are security risks, and if they are praying, they're doing it in Arabic and we don't know what they're saying. And they could be plotting something.

HAGERTY: Toensing says that would be a persuasive argument except for a law passed in 1993 called the Religious Freedom Restoration Act. The law says the government cannot infringe on anyone's religious rights, even those of prisoners, unless it has a really good reason. Ira Lupu, a constitutional law expert at George Washington University, says that's a high bar for the prison to clear.

IRA LUPU: If they can show that group prayer is a guise or a cover or a pretext for plots, then they're going to have a pretty good case that security would be threatened by daily prayer compared to weekly prayer.

HAGERTY: But Lupu says the prison needs to show that there have been problems at this particular prison.

LUPU: If they can't show that, if they're just speculating about the hazard of some sort of plot going on, I think their case is much weaker.

HAGERTY: The government said in court that prisoners had on occasion been disruptive at prayer time and that Lindh himself had delivered a, quote, radical sermon in February. But Lindh's attorney, Ken Falk, notes that Lindh wasn't disciplined for his speech. And until three years ago, he says, Muslims were allowed to pray together every day. Even now, they can roam freely outside of their cells from 6 a.m. to 9:15 p.m.

INDIANA: They're free to sit around and talk in groups. They can talk about religion and world politics. They can do all sorts of congregate activity, except they're not allowed to pray together for the daily congregate prayers.

HAGERTY: Falk says singling out prayer violates the 1993 law. The government has another problem, says Andy McCarthy, a former federal prosecutor. Even if the government has a compelling reason, say security, to curtail Lindh's right to group prayer, under the law it has to do so in the least restrictive way. McCarthy says there are other ways to make sure the Muslims don't plot during prayers. For example, they could space them apart.

ANDY MCCARTHY: They could allow them to pray at the same time and see each other so that they have a sense of community, but they're not necessarily in a setting where it could be dangerous.

HAGERTY: The judge won't decide Lindh's fate for at least another two months. But many legal experts say it's ironic that the American Taliban, whose religion turned him against the United States, is now turning to U.S. law to protect his religious rights. Barbara Bradley Hagerty, NPR News. Transcript provided by NPR, Copyright NPR.