Democracy Lab

Why a Constitution Is a Bad Place for a Blasphemy Law

A constitutional ban on blasphemy might sound like a good idea to some. But it can mean less freedom for everyone.

Words matter -- and few matter more than those found in a country's constitution. They reflect its unique culture, heritage, and history. Since no two nations are alike, constitutions will differ. Yet because all people share a common humanity, constitutions also should exhibit certain bedrock similarities, including the protection of basic universal human rights. That there are such rights is affirmed in the 1948 Universal Declaration of Human Rights, which nearly every country has adopted.

Today, many nations, including some in the Muslim world, are engaged in drafting or revising their constitutions. At stake is the status of fundamental freedoms, including the central and foundational freedom of religion and conscience.

According to internationally recognized standards, religious freedom applies to every person. It includes the right to manifest one's faith and convictions, individually or in one's community of faith, in public or in private, as well as the right to change one's religion. It is restricted only under narrow circumstances which international law specifies.

How do current constitutions compare with these standards?

The U.S. Commission on International Religious Freedom (USCIRF), on which we serve, recently released an analysis of the constitutions of 46 majority Muslim countries and 10 other member states of the Organization of Islamic Cooperation (OIC). (For an Arabic version of the report, see here.)

Stretching from Europe to Africa, through the Middle East and into Asia, these nations have constitutions which range from establishing Islam as the state religion to separating religion completely from the state. And even among constitutions in which Islam is the state religion, the extent of Islam's role and of human rights guarantees vary.

Here is a summary of USCIRF's findings: 

About 44 percent of Muslims live in 23 majority Muslim countries that have declared Islam the state religion; 56 percent dwell in nations that either proclaim the state to be secular or are silent about a state religion.

Approximately 39 percent of the world's Muslims live in 22 countries whose constitutions provide that Islamic law, principles, or jurisprudence should have some role in the legal system. This is also the case in 18 of the 23 countries where Islam is the state religion, as well as four majority Muslim nations where it is not.

Only six of the countries surveyed, all of which deem Islam the state religion, include no specific religious freedom provisions in their constitutions. Other nations, including ones in which Islam is the state religion, guarantee religious freedom in ways that comply in varying degrees with international standards. Some provisions identify religious freedom as every individual's right, or protect individuals against coercion in matters of religion or belief. Other provisions protect only certain religions or classes of religions; do not protect all aspects of religious freedom, including both public and private manifestations of belief; or allow limitations contrary to international standards.

In short, our analysis shows that, while freedom of religion and conscience is present in most of the constitutions of the surveyed countries, some nations are decidedly freer than others.

Two of the surveyed countries -- Egypt and Tunisia -- are reportedly debating whether to insert blasphemy prohibitions in their new constitutions. While a number of countries in the Middle East and North Africa region criminalize blasphemy in their penal codes, none have done so in their constitutions. By stifling the peaceful and constructive exchange of ideas by majorities and minorities alike, blasphemy laws underscore the intimate link between freedom of religion or belief and freedom of expression. By punishing the expression of unpopular religious beliefs and opinions, blasphemy provisions not only violate both of these freedoms but exacerbate religious intolerance and abet extremism and violence.  Elevating blasphemy laws to a constitutional level could be harmful indeed.

Despite these challenges, it is possible that religious freedom will progress in a number of participating nations. To be sure, enshrining this freedom in a country's constitution won't ensure its respect in practice. Nevertheless, constitutional texts matter, both as statements of a nation's laws and aspirations and as ways for people to hold their government accountable for protecting their rights.

As a number of studies suggest, when religious freedom advances in nations, so do stability and prosperity as well as overall democracy. Language affirming religious freedom is a vital first step toward this advance.

Photo by ARIF ALI/Stringer/AFP/Getty Images

National Security

Ready Player One

Did the Pentagon just take over America's cybersecurity?

It was bound to happen. The Senate fumbles and the House proffers only magical solutions for cybersecurity. The task of improving cybersecurity reverts to the executive branch, but the Department of Homeland Security does not inspire confidence. So the Department of Defense (DOD) is given a larger role in protecting cyberspace -- a responsibility that Defense Secretary Leon Panetta finally claimed in an important speech he delivered Oct. 11, "Defending the Nation from Cyber Attack." Panetta may have said that the Pentagon will only play a "supporting role," but make no mistake: When it comes to cybersecurity, the center of action just shifted.

Given the feeble state of U.S. cyberdefenses, an astute antagonist could use cyberattacks to disrupt critical services and information. This is a standard military doctrine for America's likely opponents. An expanded role for the DOD makes sense when the United States is so vulnerable -- not only from sophisticated opponents but, surprisingly, from less advanced countries that may be more aggressive and less able to calculate risk.

The driver for immediate action is Iran. "Iran has also undertaken a concerted effort to use cyberspace to its advantage," Panetta said. His speech laid the dots alongside each other without connecting them, but many sources in and out of government suggest that Iran was likely responsible for the disruptive attacks on Aramco and RasGas that the secretary mentioned. Iran may also have been behind recent denial-of-service attacks against U.S. banks. Iran has discovered a new way to harass much sooner than expected, and the United States is ill-prepared to deal with it.

The specifics of Iranian involvement are murky, but there is a general consensus that Tehran was either witting or supportive of the attacks. Iran has been working to acquire cyberattack capabilities for years -- well before Stuxnet -- and those who believe that the allegations of Iranian involvement are true do not believe the recent attacks were in retaliation for that piece of malware, which disrupted Iran's centrifuges. If anything, some speculate they were a reaction to the new U.S. sanctions. A more active Iran creates a new layer of problems in cyberspace that the United States cannot wait for Congress to address. An initial problem is how to credibly signal to Iran to refrain from further attacks. Panetta's speech was an attempt to do so. There is a message for Iran that, while indirect, is unlikely to miss.

This is not "cyberdeterrence," a term that makes little sense. The United States has one of the world's most powerful cyberforces, and it did not deter Iran, nor can it deter espionage and crime. Deterrence doesn't work because the United States can't make a credible threat. Against Iran, what would it be? More sanctions? A naval blockade? An airstrike? Even if the United States made these threats, Iran would be unlikely to assess them as credible. The Iranians know U.S. cybercapabilities better perhaps than any other country, and the threat of cyber-retaliation appears not to have frightened them. What Panetta is offering is not deterrence but prevention and preemption.

Panetta laid out a number of steps to harden defenses. Investing in new technology is a traditional American solution to defense problems. The secretary's most significant remark about new technology is that "we're seeing the returns on that investment" in the form of better attribution. Anonymity will offer less protection to attackers and may make some reconsider an attack. If nothing else, better attribution offers improved targeting.

More importantly, Panetta defined an active role for the DOD in cyberdefense, something that has been under discussion since 2009. An early question asked was, if NORAD can defend U.S. airspace, why can't Cyber Command defend cyberspace. The answer is to use the National Security Agency's unparalleled signals-intelligence capabilities and relationships to intercept incoming malicious traffic and define when and where it is legal for the agency to do so. The National Security Agency (NSA), with the right authorities, could block many future attacks.

A greater defensive role for the DOD is a good idea and a key element of any cybersecurity strategy, but there are obvious problems. Say "NSA" to privacy advocates, and they scream. To intercept malicious traffic from Iran or other opponents, you need to monitor all incoming traffic. Remember that we are ultimately talking about streams of ones and zeros, the code transferred among machines and only translated into human languages at the end. It is possible to screen these ones and zeros to look for patterns that indicate an attack without ever looking at content, but some doubt the NSA would be able to resist temptation. An expanded role for the DOD also requires expanded privacy protections.

The DOD's new role also requires defining the space for action. Forget the dot-com mythology about cyberspace having no borders. Cyberspace depends on a physical infrastructure of computers and fiber, and this physical infrastructure is located on national territory or subject to national jurisdiction. Cyberspace is a hierarchy of networks, at the top of which a small number of companies carry the bulk of global traffic over the Internet "backbone." International traffic, including attacks, enters the United States over this "backbone." The backbone is a choke point, relatively easy to defend, and something that the NSA is already intimately familiar with (as are the other major powers that engage in signals intelligence). Sit at the boundary of the backbone and U.S. jurisdiction, monitor and intercept malware, and attacks can be blocked. An analogy is that the Navy defends the ocean approaches (pace forward deployment) but not the inland waterways.

But how far down the Internet's spine should the DOD go? Should it also monitor the networks of large corporations or Internet service providers? Should it be able to go onto consumer devices when they are infected? The precedent in the United States is for military or intelligence agencies to perform domestic security functions only in a crisis, not on a routine basis. Panetta makes clear that the DOD does not envision playing this role.

What he does envision is something that might be called preemption, using new rules of engagement for Cyber Command. He says, "We won't succeed in preventing a cyberattack through improved defenses alone. If we detect an imminent threat of attack that will cause significant physical destruction in the United States or kill American citizens, we need to have the option to take action against those who would attack us to defend this nation when directed by the president." The United States, using national technical means, often has advance knowledge of an opponent's plans, intentions, and capabilities for cyberattack. Panetta seems to be saying that when an attack appears imminent, the president can direct the DOD to strike first. If it were a precise attack that avoided collateral damage, the political risk of striking another country could be manageable. There would still be risk of creating a wider conflict, and this, as the speech makes clear, is a decision only the president should make.

An active defensive role for the military is one of the three key elements needed for effective cybersecurity. The second is better protection for consumers. Last summer, the Federal Communications Commission began a program with major service providers to block or clean malware from their customers' computers. The third missing piece in a comprehensive defense is protection of critical infrastructure. Panetta says members of Barack Obama's administration "are considering" an executive order on cybersecurity. The drafts of this order are not public, but would likely take much of Section 104 of the bill put forward by Sen. Joseph Lieberman and Sen. Susan Collins -- which failed to pass this summer but which would have implemented protections for critical infrastructure -- and instead implement it under existing authorities.

The defense secretary said that there is no substitute for legislation and that Congress has a responsibility to act, but few expect to see this anytime soon. With a dysfunctional Congress unable to provide authorities for better cybersecurity, an executive order that mandates security at selected critical infrastructure may be the best the country can do. There are tensions within the Obama administration over Internet orthodoxies, but if the White House can manage to issue a credible order on critical infrastructure (not voluntary, and not dependent on imaginary incentives) to complement protections from Internet service providers and a larger role for the Pentagon, it will have done much of what needs to be done to begin building an adequate cyberdefense.

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