Six years after Sept. 11, 2001, its shock still makes its way in slow motion through the federal bureaucracy.
In the spring of 2004, the inspector general of the Justice Department issued a report warning of radical Islamist influence in American prisons. It concluded that many prison libraries had not been screened for extremist literature. In what passes for governmental urgency, the federal Bureau of Prisons recently revealed its response: the Standardized Chapel Library Project. In consultation with outside experts, the New York Times reported this week, the bureau has produced lists of up to 150 noncontroversial books for each of the major religions, then banned anything from prison libraries that didn't make the cut.
In response to a genuine problem, the Bureau of Prisons has managed to be late, clumsy and self-defeating, all at the same time.
The immediate effect of the new policy has been to decimate prison libraries collected over decades. A policy directed at jihadist literature has, for example, resulted in the removal of three-quarters of the Jewish books at the Otisville Prison in New York, ranging from the Zohar to the works of 12th-century Jewish scholar Moses Maimonides to Rabbi Harold Kushner's "When Bad Things Happen to Good People." In the ongoing war on terrorism, the Maimonides threat has been neutralized.
Understandably, a number of Orthodox Jewish groups and the American Jewish Committee have publicly opposed the policy. And the predictable lawsuits of Jewish and Christian prisoners have begun.
Prison inmates, of course, do not have the full legal protections of other citizens; they have a 40-watt version of 100-watt constitutional rights. Prisoners are entitled to free speech -- but don't have the right to print a newspaper from their cells. They have some privacy rights -- but can be constantly observed on closed-circuit television. They can generally read books of their choice -- but prisons could justifiably ban "Tunnel Digging for Dummies."
Court rulings have established that in all these categories, prison authorities simply have to show a "valid penological interest" in restricting prisoner rights, a broad, easy-to-meet standard.
But the free exercise of religion in prison enjoys increased protections. In 1993, Congress passed the Religious Freedom Restoration Act, setting a stricter standard of scrutiny for actions that limit prisoner religious expression. Prison officials must show a compelling state interest and use the least restrictive means to secure that interest -- like a surgeon, they need to accomplish their justified purposes with a scalpel, not a meat ax.