Counterterrorism Blog

You might think that the raid on the dissident Mormon compound in Texas and its aftermath are not related to terrorism, but they actually are. The question is whether a state or federal government can define what constitutes a crime, and whether that crime can be enforced where the alleged conduct is religiously-inspired. In this sense, the Texas case involves a common issue in counterterrorism - the ability of the government to take action against religiously-inspired conduct. (More ominously, we know that Timothy McVeigh acted out of outrage over the raid on the Branch Davidian compound at Waco. I pray we don't see a spike in domestic terrorism as a result of what's occuring in Texas).

As an ostensible Mormon (they claim me, but not me them) and descendant of polygamist unions (guilty), and as a former federal prosecutor in Utah (where Mormons often distrust the government), I can say that the FLDS and the state's reaction should not be viewed as a cause celebre. My sentiments are with the cops.

It is clear that a defendant's following of religious mandates is generally not a defense to a crime, although crimes that unduly infringe on religious expression can be declared unconstitutional, thereby voiding convictions or prosecutions-in-progress. Subject to these limitations, states and the federal government can define what constitutes criminal conduct.

The most obvious crimes involve real victims, as with terrorism. Texas has decided that sexual relations involving a minor is a crime, on the theory that consent is invalid per se and the underaged parties are, by definition, victims.

The problem is that young marriages - and all that they entail - can be part of the social fabric of fundamentalist Christian communities. I know this well from my time in Utah, where teen brides are common, even among the educated. To make it worse in the FLDS case, the marriages are polygamist and do not jibe with common American customs about what constitutes a legitimate family unit. This makes the religious freedom people (and anti-government partisans) chomping at the bit, looking for a controversy

They should take a cold shower. Are the Texas authorities engaged in religious harrassment? Hardly. The fact is that sex with an underage person is a crime, and this is facially a religion-neutral law. Some (including me) may question whether an 18-year old should be a criminal for consensual paradise by the dashboard light with his 17-year old girlfriend, but that is an issue for the political process and the ballot box, not the courts. That the sex may have occured in the bedroom within the context of a religiously-recognized marriage is not a defense.

How is this related to counterterrorism? Muslim defendants in terrorism prosecutions sometimes claim that their planned violence should be excused because it was mandated by their faith. Same with heavy-handed family discipline, when challenged by state child welfare officials. This will be argued in Texas.

I think counterterrorism and international human rights should be joined. With multilateral international obligations, countries can be compelled by international law to prosecute domestic conduct that violates a
consensus about what should be universally recognized as obnoxious. Terrorism is already recognized, though finding the proper definition is elusive.

My bet is that there will eventually be an international consensus that sex with people under a certain age should be prohibited worldwide. Why? There are so many Hillary Clintonesque women in the human rights/NGO community for this not to be inevitable. If I were their lawyer, I would tell them to couch it this way: people under a certain age have an individual human right not to be used as sex objects. People who engage in sex with them violate human rights. Far too often, this conduct is part of a larger dynamic that ruins lives. It's hard to argue with that.

When that time comes - and sex with children is a universal crime - the Texas authorities' actions will be more easily understood. It will be harder to argue such conduct should be excused when practiced by quaint, eccentric religions like the FLDS Church. In the meantime, the Texas authorities might be criticized for how they handled this challenge operationally - from the raid to the public relations. However, they should not be accused of religious bigotry unless there is some real evidence of this.

Not satisified? Still angry? Be assured that Texas' exercise of prosecutorial discretion can be legally challenged. If Texas is indeed acting out of some anti-Mormon bias, it would be grounds for dismissal of the criminal charges. That remedy exists, legally and in court. Such a claim would be supported by a showing that Texas has ignored the same type of criminal conduct by non-Mormons. I doubt that's happened. If it has, it should be argued in court, and not used to promote public outrage or extra-judicial actions.

It is always unfortunate when a state rips children from their parents. However, it is done frequently in every state in the country, since most people accept that the states have a legitimate interest in assuring the welfare of children. That's what this case appears to be about, unless and until someone shows that the Texas authorities are motivated by factors beyond what they publicly claim. A tragedy? Perhaps. Still, it seems like a righteous bust.

The views in this article are not those of the Department of Justice.