The 1998 law that put religious persecution on America's foreign agenda

Most laws try to make something happen. A few try to make something impossible to ignore. The International Religious Freedom Act of 1998 is in the second category, and that is why it matters.

Before it passed, an American diplomat could look at a government that jailed pastors or burned villages of believers, file a cable and move on to the trade talks. After it passed, the same diplomat had to sit down once a year and write a country-by-country account of how that government treated people of faith, and the account was public. Let me explain how the machine works, who runs it, what it has and has not accomplished, and how a citizen with a laptop can read it.

The problem the law was written to solve

Define the problem first. Religious persecution is the use of state power, or tolerated mob power, to punish people for what they believe or how they worship. It takes many forms: bans on conversion, imprisonment of clergy, destruction of houses of worship, forced renunciation of faith, discrimination in jobs and schools, and, at its worst, mass killing.

By the 1990s a growing coalition in America, drawn from evangelical Christians, Catholics, Jews, Tibetan Buddhists, Baha'is and human-rights groups, argued that the United States was not paying enough attention. Persecution was happening in places where America had trade, aid and alliances, and it was usually a footnote to larger diplomatic business. Religious freedom was, in the language of the day, an afterthought of foreign policy.

Two premises drove the reformers. One: freedom of conscience is a basic human right, recognized in the Universal Declaration of Human Rights of 1948 and rooted, for Americans, in the First Amendment. Two: a government that persecutes its own people is often a threat to its neighbors and to American interests, so the problem is not charity but strategy. The aim was to make the executive branch look at the problem systematically.

Passage and signing

The International Religious Freedom Act, known as IRFA, was the product of a legislative fight. The House had one approach, associated with Representative Frank Wolf of Virginia, which would have imposed automatic sanctions on persecuting countries. Opponents, including parts of the business community and the administration, worried that mandatory sanctions would be a blunt instrument. A Senate compromise, with leading roles for Senators Don Nickles and Joseph Lieberman, softened the sanctions into a menu of responses the President could choose from, and it was that compromise that went to the President.

President Bill Clinton signed it on October 27, 1998. It became Public Law 105-292, and it is codified in Title 22 of the United States Code. Congress used its constitutional power over foreign commerce and its power to make rules for the government, and it did so by creating offices and reporting duties, which is the ordinary way the legislature checks the executive on foreign policy. Article I, Section 8 gives Congress the power "to regulate Commerce with foreign Nations," and the act uses that power, along with the necessary-and-proper authority to set up reporting offices.

What the act created

IRFA built four things.

1. A commission. The United States Commission on International Religious Freedom, known as USCIRF, is an independent, bipartisan federal body. It has nine voting commissioners, appointed by the President and by the leaders of both parties in the House and Senate, and its job is to review the facts and circumstances of violations of religious freedom abroad and to make policy recommendations to the President, the Secretary of State and Congress. The ambassador-at-large, described below, serves as a non-voting member. The independence is deliberate: the commission can say what the State Department prefers to soften.

2. An ambassador-at-large. The act created the position of Ambassador-at-Large for International Religious Freedom, who heads an Office of International Religious Freedom within the State Department. The ambassador is the principal adviser to the President and the Secretary of State on the subject. A position with a title and a statutory mandate cannot easily be ignored by the building.

3. An annual report. The State Department must produce an annual Report on International Religious Freedom, covering every country. It describes the state of religious freedom, the government's policies and the treatment of believers. Because it is required by statute, the report appears every year whether or not the administration finds the topic convenient.

4. A designation system. The Secretary of State must designate, as Countries of Particular Concern, those governments that engage in or tolerate "particularly severe violations of religious freedom," defined in the act as systematic, ongoing, egregious violations, including torture, prolonged detention without charges, abduction or other flagrant denials of the right to life, liberty or security. Once a country is designated, the President must choose from a list of responses, ranging from private diplomatic protests to targeted economic measures, or issue a waiver stating that important national interests require it.

The Wolf Act of 2016: the Special Watch List and non-state actors

The law has been updated. In December 2016 President Obama signed the Frank R. Wolf International Religious Freedom Act (Public Law 114-281), named for the Virginia congressman who had led the House effort on religious persecution in the 1990s and who left Congress in January 2015.

The Wolf Act made several changes worth knowing:

• It created a Special Watch List for governments that engage in or tolerate severe violations of religious freedom but do not meet the threshold of "particularly severe." This closed a gap in which a country had to be in the worst category or in no category at all.
• It added a category for non-state actors that commit particularly severe violations, called Entities of Particular Concern, so that groups such as terrorist organizations that control territory and persecute people could be named.
• It strengthened the role of the ambassador and the training of Foreign Service officers on religious freedom.

The reason these changes mattered is that persecution is not always carried out by a government. In some places militias, insurgent groups and mobs commit the worst crimes while the state looks away. A law that could only name governments missed the problem. The 2016 genocide finding on the Islamic State, covered in The 2016 genocide finding for Yazidis and Christians under ISIS rule, is the kind of case that exposed the gap.

What USCIRF and the State Department do in practice

The division of labor is the thing most people miss.

USCIRF is an advisory watchdog. Every year it publishes its own annual report, in which it recommends which countries the Secretary of State should designate as Countries of Particular Concern and which should go on the Special Watch List. It holds hearings, issues country updates and sends delegations. It has no power to impose a designation. It can only recommend.

The State Department makes the decision. Its annual report is the official record, and the Secretary of State decides who is designated. Here is where the real politics lives. USCIRF's recommendations are often longer than the State Department's designations, because the commission has no diplomatic relationships to protect and the department does. A government that is useful as an ally or a trading partner can slip off a list, and the commission's recommendation sits on the record as a rebuke.

That friction is a feature, not a bug. The Founders designed the separation of powers so that one branch would check another, and a statutory commission that publicly disagrees with the executive is a small, civilized version of that principle.

The strongest objection

Let me state the best skeptical case. "The law has not ended persecution anywhere. Countries get designated and nothing changes. Presidents routinely waive the consequences. The reports are read by activists and ignored by everyone else. And pressing other countries on religion can look like cultural imperialism or can get American missionaries and local believers in more trouble."

I will answer in numbered points.

1. The law does not promise to end persecution. It promises to keep it on the record. Measured against that promise it succeeds, because the reports and the designations exist, and each year a government's treatment of believers is publicly assessed under American law.
2. Waivers are real, and they are part of the design. The law gave the President discretion, because foreign policy has to weigh competing interests. The remedy is political: citizens and members of Congress can press the executive on the waivers and the list, and the record shows when they were used.
3. Public attention changes the cost of persecution. A government that is named in an official American report must explain itself in the diplomatic arena. Prisoners are sometimes released, laws are sometimes softened and individual cases are sometimes raised at high levels because the issue has a standing place on the agenda. I cannot give you a precise count of such outcomes, and I would not invent one. The honest claim is that attention is a precondition for any remedy, and that without it there is none.
4. The cultural-imperialism charge confuses the right with the custom. The freedom to believe, worship and change one's mind is recognized in the international documents of the postwar order. Pressing governments to honor commitments they have already made is not an imposition of an American religion. It is an insistence on what they signed.
5. The risk to local believers is real and is a reason for care, not silence. The people most affected by persecution are often the ones asking for attention. Many advocates in these communities say that being forgotten is worse.

Why a conservative should care

The case for conservative interest rests on three things.

First, the First Amendment is a statement of what we believe about the human person: that conscience belongs to the individual and not to the state. If that is true in Ohio, it is true in Nigeria and in China. A country that holds the principle only at home has a regional preference, not a principle.

Second, Christians are among the most widely persecuted believers in the world, and they are often the ones whose suffering is least noticed in the Western press. That is not the whole story, because Muslims, Buddhists, Baha'is, Jews, Yazidis and others suffer as well, and a serious religious-freedom policy defends them all. The law is neutral among faiths, and it should be. For how one of the world's largest regimes handles the question, see How China's Communist Party licenses churches and jails pastors, and for a historical case of the kind that the law was written to prevent, see 1915, the Armenian genocide and the Christian peoples who perished with them.

Third, the principle runs in both directions. A nation that demands religious freedom abroad needs to practice it at home. The Constitution's text, with its ban on a religious test in Article VI and its two religion clauses in the First Amendment, is the standard. Blasphemy laws abroad and why the First Amendment refuses them shows why the American answer to blasphemy laws is a refusal, and Sixteen words on religion in the First Amendment, read phrase by phrase reads the clauses themselves.

How a citizen can read the reports

Here is the practical part. The reports are public and free.

1. Find the State Department report. Search for the State Department's annual Report on International Religious Freedom on its website. It has an executive summary and a chapter for each country, with sections on the legal framework, government practices and the situation of societal respect for religious freedom.
2. Find USCIRF's report. Search for the commission's annual report on its website. It lists its recommended Countries of Particular Concern and its Special Watch List, with short chapters explaining the reasons.
3. Compare the two. The differences between the commission's recommendations and the department's designations are where the news is. Ask which countries are on one list and not the other, and why.
4. Read one country in full. Pick a country in which you have a personal interest, perhaps a family connection or a missionary your church supports, and read the whole chapter.
5. Check the statute. The act is in Public Law 105-292, and the Wolf Act amendments are in Public Law 114-281. Congress.gov has the text.
6. Use what you learn. Write to your members of Congress about a country on the list, and ask what they have done about it.

A reader who does this will know more about the facts of religious persecution than most newsrooms, and will have a primary source in hand.

The case in brief

1. The International Religious Freedom Act of 1998, signed on October 27, 1998, created USCIRF, an ambassador-at-large, an annual State Department report and a designation process for Countries of Particular Concern.
2. The Frank R. Wolf International Religious Freedom Act of 2016 added a Special Watch List and a category for non-state actors, closing gaps in the original law.
3. The act works by putting persecution on the official record, and a commission independent of the State Department can say what diplomats might prefer to soften.
4. The objections, that designations change little and that waivers are common, are fair, but they miss the point of a law whose first aim is to make persecution impossible to ignore.
5. A citizen can read the reports for free, compare the commission's recommendations with the department's designations, and press Congress to act.

What you can do: this week, read the State Department and USCIRF chapters on one country, and write to your member of Congress asking what the administration has done about its designation.