Jeff Breinholt
The name of Islam has been invoked as a defense in many American court cases, but why? Is the goal to impose Shar-ia law, ultimately, on the rest of us? When you look into Sheik Omar Abdel Rahman’s eyes, you see nothing. It’s not because of the darkness in his soul, though some may claim that’s the case. Rather, it’s because he’s blind. This physical infirmity led American lawyers to claim that he was incapable of conspiring to wage war on the United States, by orchestrating an audacious plot to destroy simultaneously several New York City landmarks in the 1990s. His lawyers chose to ignore conspiracy law, which permits prosecutors to reach anyone who is party to the illegal agreement. Sheik Rahman was right in the middle of it. If he and his cohorts had succeeded, it is likely that the death count would have exceeded 9/11. They were caught before the killing started, through the help of an undercover informant. Rahman and nine other defendants were convicted.
His defense was not limited to his physical disability. It reached into a bag of tricks Americans sometimes fall for - involving religious freedom. During his trial and in his appeal, Sheik Rahman argued that the seditious conspiracy statute violated the First Amendment, in that it unconstitutionally infringed on his free speech and the free exercise of religion. Fortunately, the judge in the case, Attorney General nominee Michael Mukasey, knew better.
Judge Mukasey realized that the evidence justifying Abdel Rahman's conviction for conspiracy and solicitation showed that he was doing more than just preaching, and his speeches were not simply the expression of ideas. For example Abdel Rahman told one of his adherents he "should make up with God ... by turning his rifle's barrel to Egyptian President Mubarak's chest, and kill[ing] him." On another occasion, speaking to an adherent about murdering President Mubarak during his visit to the United States, Abdel Rahman told him, "Depend on God. Carry out this operation. It does not require a fatwa ... You are ready in training, but do it. Go ahead."
One of his co-conspirators consulted with Abdel Rahman about the bombing of the United Nations Headquarters, and Abdel Rahman told him, "Yes, it's a must, it's a duty." When Abdel Rahman was asked by another co-conspirator about bombing the United Nations, he counseled against it on the ground that it would be "bad for Muslims," but added that Salem should "find a plan to destroy or to bomb or to ... inflict damage to the American Army."
In the end, the Second Circuit Court of Appeals rejected Rahman's claim that his conviction violated his rights under the First Amendment, affirming Judge Mukasey‘s decisions. U.S. v. Rahman,189 F.3d 88 (2nd Cir. 1999).
This was not the first time a Muslim criminal defendant in a American court tried to defend himself through the "I am a Muslim" defense, nor would it be the last. This practice has been going on in various forms non-stop for almost 50 years. The case of the Blind Sheik was merely the most celebrated (and obvious) example.
It becomes a problem when it is not so obvious. Today, we are involved in a battle that requires us to obtain an accurate picture of our enemies, who are a minority of Islamic fundamentalists who want to destroy us. Muslims who claim that their religion permits them to escape criminal liability are not the main problem, nor are the Islamic leaders who overtly tell us that they will kill our nationals unless they submit to Allah. The real challenge involves detecting Muslims who wear suits, speak English, and smile as they secretly plan to conquer Western civilization and impose Islamic law on the unwilling.
I believe that we can spot the product of their efforts in the same way as we can treat Sheik Rahman as an historical threat whose motives were elucidated through the legal system - by reading the case books - though it requires far more subtle analysis.
In counterterrorism, the law library is an undervalued source of strategic intelligence. Legal controversies involving Muslim parties are a rich source of insight, since the real things are at stake and the results (and reasoning) are published for all the world to see. We can get a good idea of the plans of Muslims - including those who are not completely overt in their strategy - by seeing how they behave in court. It matters less whether the individual Muslims described in court opinions are part of a larger mission or conspiracy, for there is generally no indication that they are. That they act in consistent ways shows the result of an indoctrination of the portion of the American Muslim community of whom we have the most to fear. The trends are shaping up, right under our noses.
While al Qaeda is in our thoughts these days, there is another organized group that may justify our scrutiny even more, since they are so polished and already present in so many Western countries. The Muslim Brotherhood, also known as the Ikhwan, is being discussed extensively in American corridors of power, because they claim to be in favor of democracy and, according to their supporters, may be an effective counterweight to the more radical adherent, Osama Bin laden. The problem, according to the Brotherhood’s critics, is that the Brotherhood has never renounced its global ambitions of imposing Shari’ah law on much of civilization. That makes the Brotherhood arguably more of a tricky adversary than al Qaeda for people who value secular freedoms.
Occasionally, I am accused of being alarmist by treating as real the specter that, over time, we may accede to Shari’ah courts within the U.S. in any effort to buy peace with our Muslim enclaves. This seems to be the Muslim Brotherhood’s goal. When challenged on my claims, I like to point out that this process will be easy for us to overlook. When Shari’ah law establishes a beachhead here, there will not be a parade. It will not be covered by CNN and Christianne Amanpour will not be there, as when a young country first establishes an independent judiciary or enacts a constitution. The process will be far more subtle, and the first indication will be a local government leader agreeing to give some of his communities’ police power to Muslim leaders. The process will involve small concessions that might not even be conscious, like a single American prosecutor’s decision that it’s not worth her time trying to get to the bottom of a homicide involving a Muslim victim, which would require her to fight through the community‘s code of silence and take her away from more pressing matters. At that point, Islamic law will have stepped into the void, and denied us the rights to assure national uniformity in protecting people here from deprivations. More will follow.
That this is a desired result becomes apparent when we look at how Muslims have tried to defend themselves in American courts, when they suggest that American authorities have no authority over them and our legal regimes are (or should be) powerless. If you look closely, these litigants are doing exactly what Sheik Rahman did in his criminal trial: declaring that, as Muslims, their religious conduct - which in certain interpretations of Islam means everything they do - is no business of the American legal system.
The process is on display when a Muslim defendant tries to win an American legal controversy through resorting to Islamic norms. It is not so clear when they try a more subtle corollary - objecting to evidence involving their religion when offered to explain why they did what is alleged. In the early 1970s in two different proceedings, Muslim defendants in Texas tried to argue in their narcotics smuggling prosecutions that the contraband was permitted by their religion. The courts rejected these arguments, ruling that the Holy Koran says nothing about the permissible use marijuana, heroin and peyote. State v. Lee,197 Kan. 463, 419 P.2d 927 (1966).U.S. v. Hudson, 431 F.2d 468 (5th Cir. 1970).
The 1980s saw a number of Muslims accused of domestic crimes trying to defend themselves through their religion. In a case arising out of the October 1980 death, due to torture and malnutrition, of young Arthur Armstead his parents claimed he died from other causes, that their strict religious beliefs in discipline were the motivation for their mistreatment of the him, and that they did not plan to kill him. State v. Kahey, 436 So.2d 475, La., 1983. In Iowa, a father was held in contempt of court for taking his son to Jordan in the middle of a custody dispute. He cited Islamic law for his custody claim. Fortunately, the Iowa court had no trouble rejecting this: "This court may not prescribe what shall be orthodox in any religion or religious culture" the judge wrote, "It would be contrary to this legal standard to place this matter in the hands of Islamic scholars. While [the father] has the ability to use his contacts in the religious community, we will not allow jurisdiction of this matter to be removed from this judicial system and given to a committee of Islamic scholars." Amro v. Iowa Dist. Court for Story County, 429 N.W.2d 135, 1988 WL 96488, Iowa, September 21, 1988(No. 87-1637.).
In the 1990s, a Muslim man accused of child abuse argued that his different views of child rearing were due to his Muslim faith. Ahmad v. State, 603 So.2d 843, 1992 WL 118672, Miss., 1992. A few years later, a state court in Washington affirmed the parental termination of a couple with five children, after the March 1994 death of one them, 22-month old Mohammad; the child died of blunt trauma to the abdomen. The parents maintained that they were not responsible for Mohammed's death, and that visitation was unnecessary because the separation would not interfere with the sacred bond that they have with their children. But they also maintained that following the court's unjust orders would be a dishonor to their children and to the Muslim community, thereby justifying their refusal to submit to court imposed psychological testing. In re M.I.S., Not Reported in P.3d, 95 Wash. App. 1049, 1999 WL 325442, Wash. App. Div. 1, May 24, 1999.
In Wisconsin, a judge refused to grant custody to a Muslim father over his claim that the dim view the court took of his reliance on corporal punishment of the Attention Deficit Disorder-afflicted child violated his religious freedom. Interest of Jonathan S., 222 Wis.2d 625, 587 N.W.2d 457, 1998 WL 734475, Wis.App., October 22, 1998. In custody cases, American courts sometimes have been faced with a Hobson’s Choice: permitting the child to live in Muslim child care centers where they are maltreated, or granting custody to parents who acknowledge occasionally disciplining them with physical force. Matter of A.B.E., 564 A.2d 751, 1989 WL 115273, , D.C.(1989).
And so it goes. On July 10, 1998, an Illinois court affirmed a murder conviction of Edwin A. Jones, who beat his wife based on the teachings of the Koran and her failure as a Muslim. Here it is, worth being quoted from the court opinion:
Jeannie Boyd-Jones succumbed to massive injuries sustained as a result of a prolonged beating administered by defendant. Portions of her deep body fat liquified, and the tissue died as a result of the force applied. Over one-third of her blood supply permeated the internal body cavity lost to circulation as a result of the force applied. Her lower torso and shanks were one massive contusion, with no portion of her frame free of visible welts and bruises. Jeannie Boyd-Jones was beaten to death. Of that there can be no dispute.
[T]he]defendant challenges his court-appointed lawyer's performance. He inveighs against counsel for the failure to procure an amir or sheik to opine about his religious faith and its sanction of wife-beating. The record reflects that counsel unsuccessfully searched for such an expert. It also reflects a grave misapplication of any Islamic license for his conduct.
We seriously doubt that anyone knowledgeable on Islamic teachings would have proved helpful to this defense. Had such an expert been found, had he explained the righteousness of defendant's conduct or merely explained how defendant may have believed that his actions conformed to religious teachings, the expert would not have changed the outcome. The sovereign State of Illinois has a longstanding rule of law that prohibits the engaged-in conduct. This society will not abide defendant's actions regardless of the religious beliefs that may have motivated them. If a religion sanctions conduct that can form the basis for murder, and a practitioner engages in such conduct and kills someone, that practitioner need be prepared to speak to God from prison.
People v. Jones, 297 Ill.App.3d 688, 697 N.E.2d 457, 231 Ill.Dec. 903, 1998 WL 385434, Ill.App. 5 Dist., 1998.
Since 9/11, these types of defenses have been on the rise, though the arguments are no less laughable. One of these cases was literally the "I am a Muslim" defense. Reginald Byrd, charged in Philadelphia with drug possession, claimed that, as a "lawful Muslim" of Moroccan descent, the only secular laws whose authority he must accept are those covered in an ancient treaty between the United States and Morocco. Thus, he could not be liable for violating Pennsylvania law, and Pennsylvania courts lacked jurisdiction over him. Byrd v. Blackmun, Slip Copy, 2006 WL 2924446 (E.D. Pa. 2006.
One should not be fooled by the style of the argument, however. The "I am a Muslim" defense is in play whenever a criminal defendant argues that a substantive crime infringes on their religion, and this tendency seems to be on the increase since 9/11. Muslim charities have claimed that the government’s terrorist financing enforcement efforts are intended to suppress their religion. Holy Land Foundation v. Ashcroft, 219 F.Supp.2d 57 (D.D.C 2002). Persons accused of providing financial support to terrorist groups or lying about their activity have claimed that their conduct is protected from prosecution because their conduct was constitutionally-protected. U.S. v. Sattar, 272 F.Supp.2d 348 (S.D.N.Y. 2003). U.S. v Hammoud, 381 F.3d 316, 65 Fed. R. Evid. Serv. 338 (4th Cir. 2004); U.S. v. Jayyousi, Slip Copy, 2007 WL 781373, 20 Fla. L. Weekly Fed. D 647 (S.D.Fla. 2007) March 12, 2007; U.S. v. Holy Land Foundation for Relief and Development, Slip Copy, 2007 WL 2004452 (N.D.Tex.,2007); U.S. v. Mubayyid, 476 F.Supp.2d 46, 2007 WL 716088, 99 A.F.T.R.2d 2007-1362 (D.Mass. 2007).
None of these claims was successful.
As always, the view expressed in the article are the author’s own, and do not reflect those of the Department of Justice.
-- In Part Two, I will examine how Islam has sometimes been invoked by witnesses who sought to avoid testifying against their fellow Muslims.
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