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1997 NCC General Assembly, Nov. 11-14, 1997, Washington, D.C.

NCC Analysis of "International Religious Freedom Act of 1998"
By Oliver Thomas, NCC Special Counsel for Religious and Civil Liberties
May 6, 1998

The "International Religious Freedom Act" (IRFA) is a 64 page federal statute designed to combat religious persecution abroad. Introduced by lead sponsor Don Nickles (R-OK), the bill is more complicated than its House cousin, "The Freedom From Religious Persecution Act" sponsored by Rep. Frank Wolf and Senator Arlin Specter.

Like Wolf/Specter, IRFA provides for training of both State and Justice Department personnel as well as more extensive investigation and reporting of religious persecution. Rather than relying on a single individual to monitor religious persecution and advise the President and Secretary of State, IRFA uses 3 cooperative entities: An Ambassador-at-Large for Religious Liberty (appointed by the President and located at the State Department), Special Advisor an Religious Persecution (a member of the National Security Council staff) and the Commission on International Religious Liberty (a 7 member bi-partisan group with nominees selected by the President, the President of the Senate and the Speaker of the House).

Unlike Wolf/Specter, the bill does encourage multilateral action, and it also tends to utilize accepted definitions of religious liberty drawn from international agreements. Also unlike Wolf/Specter, the immigration and asylum provisions do not create a lot of special administrative protections for the victims of religious persecution.

Like Wolf/Specter, the bill ignores the newly formed Advisory Committee on Religious Freedom Abroad, but the Committee is replaced by the smaller -- though similar -- Commission. The only thing technically "automatic" about IRFA would be the ban on export of the instruments of crime. There would also be an "automatic" denial of visas to the leaders of nations found to be "gross violators" of religious freedom unless the Secretary of State found a "compelling" reason to override the denial.

The bill does other things to promote religious liberty such as providing for religious freedom awards, beefing up international broadcasting on the subject of religious liberty and providing equal access to U.S. embassies and missions for religious activities, but the heart of the bill is the list of sanctions set forth in Section 405. If a nation is found by the Commission to be a violator of religious liberty (and many will be in light of the bill's broad definition of religious persecution), the President must choose from a list of 8 possible responses ranging from a private demarche to a public condemnation to the cancellation of state visits. These more mild sanctions need only be reported to the Congress.

If, on the other hand, a nation is found to be a "gross violator", the consequences are more severe. (A "gross violation" is defined as a "consistent pattern" of gross violations that include "torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons, or other flagrant denials of the right to life, liberty or the security of persons".) In the case of "gross violators", the President must choose from another range of diplomatic options beginning with a cancellation of aid under the Foreign Assistance Act of 1961 (one of Wolf/Specter's automatic sanctions) and ranging from directions to the Export/Import Bank to deny loans to a full cessation of trade (no issuance of export licenses). Section 405 does permit the President to take "commensurate" action when it would further the policy of religious freedom. In each case of a gross violation, the President must report his proposed course of action to the Congress which by joint resolution can then overrule the President's plan. This joint resolution is subject to a presidential veto which is in turn subject to a congressional override as with standard legislation.

As with the new version of Wolf/Specter, there is a prohibition against limiting humanitarian aid as well as a prohibition against infringing upon defense contracts. A Presidential waiver is also allowed, but in the case of "gross violators" it is subject to Congressional review.

In addition to the Wolf/Specter grounds for waiver (i.e. national security or religious freedom), the IRFA permits a waiver where "substantial steps" are being taken to correct the underlying persecution.

Other provisions of the bill include publication in the Federal Register of proposed actions against violating nations as well as more consultation with "interested parties" including businesses and the religious community.

My thoughts on this bill are as follows:

1. It gives more flexibility to the President and to the State Department. Because sound foreign policy depends upon our taking into account the unique facts and circumstances pertaining to each foreign power and to each persecuted community, the IRFA is an improvement on the House bill.

2. It will probably hurt our relations with Muslim nations throughout the world. The definition of religious persecution is broad enough that the President will be forced to issue at least a private demarche to virtually every Muslim ally that the United States has.

3. By giving Congress the power to review and veto the President's choice of action against a particular nation, the bill probably would politicize the issue of religious persecution beyond what it already is (if that is conceivable). Image the temptation for a Republican Congress and a Democratic Administration to posture on this issue. And, it will be an annual event -- every time the Commission issues its report and makes its recommendations.

In light of (1) increased investigation of and reporting on religious persecution as well as the new training of government personnel, and (2) reports of our Christian brothers and sisters overseas who believe U.S. efforts to legislate in this area will be counterproductive, a convincing case has not been made for either the House or Senate bills. However, if domestic politics dictate that some Congressional action is required, the Senate bill is to be preferred.

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