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Courtroom Jihad and the Defense of “I am a Muslim”

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by Jeffrey Breinholt
Published on October 29th, 2007
ARTICLES

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 simultaneously destroy 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 to most celebrated (and obvious) example.

When it is not so obvious is when it is a problem. Today, we are involved in a battle that requires us to obtain an accurate picture of our enemies, who are the small 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.

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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 Qaida 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 on Usama Bin laden. The problem, according to the Brotherhood’s critics, is that it 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 that al Qaeda for people who value secular freedoms.

I am occasionally accused of being alarmist by treating as real the specter that over time, we may come to 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 established 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 a independent judiciary or enacts a constitution. The process will be far more subtle, and the first indication will be a local government leaders agreeing to give some of its police power over their communities to Muslim leaders. The process will involve small concessions that might not even be conscious, like a single American prosecutor’s decision that its not worth her time trying to get to the bottom of a homicide involving a Muslim victim, which would require here 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 resort to Islamic norms. It is not so clear when 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 argument, 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 of young Arthur Armstead due to torture and malnutrition, 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 cited. 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 was 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 ,of blunt trauma to the abdomen. The parents maintained that they were not responsible for Mohammed's death, that visitation was unnecessary because the separation would not interfere with the sacred bond that they have with their children, but that following the court's unjust orders would be a dishonor to their children and the Muslim community, thereby justifying their refused 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 have sometimes 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 that 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 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 on 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 were successful.

Islam has sometime been invoked by witnesses who sought to avoid testifying against their fellow Muslims, and these claims have been going on for years.

When Charles Johnson killed his wife in New York in the mid-1980s, the first thing he did was go to the mosque to seek the protection of his fellow Muslims. They took him to see a lawyer. Later, he claimed what he described to them constituted privileged communications in an attempt to bar them from testifying. People v. Johnson, 115 A.D.2d 973, 497 N.Y.S.2d 539, N.Y.A.D. 4 Dept., 1985

In the murder prosecution of John Henry Britt in Oklahoma City in the 1980s, a witnessed named John Wesley Phillips refused to testify at trial, claiming it would violate his principles as a Black Muslim. The trial court allowed the prosecution to use Phillips' statement at preliminary hearing, contained in an official court transcript, in lieu of his live testimony at trial. Britt claimed that the decision by the court to allow it was prejudicial error. Britt v. State, 721 P.2d 812, 1986 OK CR 99, Okla.Crim.App.1986.

In the late 1990s in New York, Ihab Ali was held in contempt for refusing to testify to the federal grand jury investigating the terrorist attack in U.S. Embassies in East Africa. At the contempt hearing, Ali also testified that, as a Muslim, he did not believe in the killing of innocent civilians under any circumstances but that he felt that Muslims of Arab descent were discriminated against in the United States. As examples, he referred to major airlines' profiling Muslims of Arab descent prior to plane departures and described the movie, "The Siege," as stereotyping Muslims as terrorists and fundamentalists. This was a year before 9/11. With respect to his refusal to testify, Ali stated that it was his understanding that it would be a sin for which he could suffer in hell's fire if he were to testify in a way that did harm to himself or to innocent people. He also testified that he mistrusted the motives of the inquiry of the grand jury that he had a mistrust of the United States government.

A prominent Islamic religious leader, Imam Mohammad al Hanooti, testified for Ali as an expert witness on the tenets of the Muslim faith and stated in general that in this country there has been a perception of injustice held by Muslims because of the atmosphere since 1991. This causes them to "try to avoid any sort of involvement with the justice or with any investigation because they don't feel that everything is lawful and everything is done with justice." With respect to Islamic law, Imam al Hanooti made clear that a Muslim has an obligation to testify about crimes committed but that if the Muslim evaluates the situation and concludes that his testimony will "hurt" him or others he has a right not to give testimony. He testified that Islamic law does not consider causing someone to be punished for a crime they committed is not causing "hurt." and that a Muslim who knows about another's crime should give testimony. "The only way he can abstain from testimony if he knows he will be hurt or others could be hurt in unlawful dimensions." This ploy did not save Ali. The court ultimately affirmed his civil contempt. In re Grand Jury Subpoena of Ali, Not Reported in F.Supp.2d, 1999 WL 595665 (S.D.N.Y. 1999).

Refusal to testify against other Muslims was an express term of a plea agreement, and religious discrimination is later alleged when one defendant did not receive benefit of credit for cooperation. U.S. v. Thomas, Not Reported in F.Supp.2d, 1998 WL 633981 (E.D.Pa.1998). Occasionally, when forced to testify, Muslim witnesses have chosen to commit perjury. State v. West, 419 So.2d 868, La.,1982.

Along the same lines, Muslims have claimed that their refusal to submit to body searches predicated on reasonable suspicion reflects religious prohibitions on being touched on certain part of their bodies, U.S. v. Spriggs, 30 F.3d 132, 1994 WL 396337, Unpublished Disposition (4th Cir. 1994). Muslims have claimed that undercover stings in their neighborhood represented unconstitutional discrimination. People v. Quyyam, 172 A.D.2d 698, 568 N.Y.S.2d 965, N.Y.A.D. 2 Dept., 1991. They have increasingly claimed that they were unconstitutionally selected for law enforcement scrutiny because of their Muslim faith. U.S. v. Clark, 398 F. Supp. 341 (E.D. Pa. 1975); U.S. v. Jackson, 549 F.2d 517 (8th Cir. 1977); U.S. v. Darden, 70 F.3d 1507, 1995 WL 689372, 43 Fed. R. Evid. Serv. 321 (8th Cir. 1995); U.S. v. Al Jibori, 90 F.3d 22, 1996 WL 391217 (2nd Cir. 1996); State v. Issa, 2001 WL 1635592, 2001 -Ohio- 3910, Ohio App. 1 Dist., 2001; Smith v. State, 835 So.2d 927, Miss. 2002; U.S. v. Alemeh, 341 F.3d 167, 62 Fed. R. Evid. Serv. 327 (2nd Cir. 2003); State v. Madhobe, 2003 WL 1818928, 2003 -Ohio- 1793, Ohio App. 5 Dist. 2003; People v. Washington, 2004 WL 882065, Cal.App. 2 Dist. 2004; State v. Ahmed, 103 Ohio St.3d 27, 813 N.E.2d 637, 2004 -Ohio- 4190, Ohio 2004; People v. Wright,12 Misc.3d 1164(A), 819 N.Y.S.2d 212, 2006 WL 1525983, 2006 N.Y. Slip Op. 51024(U), N.Y.Sup., 2006; Al-Ali v. State, Slip Copy, 2006 WL 3831397, Tenn.Crim.App., 2006; U.S. v. Lewis, Slip Copy, 2006 WL 4385752 (D. Mass. 2006); Com. V. Miller, 897 A.2d 1281, 2006 PA Super 91, Pa.Super., April 24, 2006; U.S. v. Abdush-Shakur, 465 F.3d 458, 71 Fed. R. Evid. Serv. 470 (10th Cir. 2006); U.S. v. Awadallah, 457 F.Supp.2d 246 (S.D.N.Y. 2006); Olibrices v. State, 929 So.2d 1176, 31 Fla. L. Weekly D1552, Fla.App. 4 Dist., 2006. Notice how many of these cases were issued after 9/11. If Muslims were indeed being selected for prosecution for unconstitutional reasons, one would expect that at least one of these claims was successful. None were.

The outer edges of selective prosecution claims was probably observed in the case of a Young American jihadist caught fighting for the Taliban, who claimed his indictment should be dismissed but the U.S. was prosecuting him because of his religious associations. This particular claim fell about as flat as Shiek Rahman’s argument a decade earlier. As the court noted:

Here, nothing in the Complaint or the Indictment suggests that Lindh's religious reasons for providing services to the Taliban motivated the government's decision to charge him with the offenses set out in Counts Eight and Nine. To the contrary, the serious offenses with which he is charged, i.e., conspiracy to murder U.S. nationals and aiding foreign terrorist states and organizations, are manifestly the reasons for his prosecution, not his religious affiliation. Given the gravity of the allegations, there is every reason to believe that Lindh would have been prosecuted even had he been, say, a Presbyterian, a Scientologist, or an atheist. Lindh's First Amendment argument, distilled to its essence, is that he has a constitutional right to associate with foreign individuals and groups and that Counts Two through Nine impermissibly infringe this right by criminalizing this association. The statutes and regulations on which the Counts rest amount, in his view, to the government's attempt to impose on him guilt by association.
This argument is specious. Lindh is not accused of merely associating with a disfavored or subversive group whose activities are limited to circulating inflammatory political or religious material exhorting opposition to the government. Far from this, Lindh is accused of joining groups that do not merely advocate terror, violence, and murder of innocents; these groups actually carry out what they advocate and those who join them, at whatever level, participate in the groups' acts of terror, violence, and murder

U.S. v. Lindh, 212 F.Supp.2d 541, E.D.Va., July 11, 2002.

As I said, these cases are easy. The Muslims making these argument typically generally lose. Yet they keep on ticking.

I believe that the more subtle signs that that Muslims are trying to impose Islamic in the U.S. is arguably present in the various cases where Muslim defendants challenged a jury selection process that did not result in a sufficient number of Muslim jurors to decide their fate U.S. v. Clark, 398 F.Supp. 341 (E.D.Pa., 1975), State v. Hodge, 248 Conn. 207, 726 A.2d 531, 1999 WL 167561, , Conn., 1999, U.S. v. Shabazz, 1998 WL 744057 (D.Or. 1998); U.S. v. Salameh, 152 F.3d 88, 1998 WL 440473, 50 Fed. R. Evid. Serv. 602 (2nd Cir. 1998). Part of what makes this strategy such an attractive one for Muslim litigants is that the challenge has already been established in racial cases, based on the recognition that juries can be racially biased and we need some measures to assure that they are fairly composed. Muslims occasionally seek disqualification of the non-Muslim judge. U.S. v. Watson, 1988 WL 36490 (E.D.La. 1988); U.S. v. Darden, 70 F.3d 1507, 1995 WL 689372, 43 Fed. R. Evid. Serv. 321 (8th Cir. 1995); State v. Madhobe, 2003 WL 1818928, 2003 -Ohio- 1793, Ohio App. 5 Dist., 2003. They sometimes assert that certain legal rulings reflect cultural bias. U.S. v. Baker, 1999 WL 163631 (E.D. Pa. 1999); Schultz v. Elremmash, 615 So.2d 396, La.App. 5 Cir., February 25, 1993; Muhammad v. Muhammad, 622 So.2d 1239, 1993 WL 290415 Miss 1993 The premise of these arguments is that only fellow Muslims can be trusted to judge their peers. Taken to the next level, we would have all Muslim juries, or Muslim judges trained in Islamic law, to resolve intra-Muslim controversies. Other ethnic enclaves do not make this claim, which make their challenges to jury selection qualitatively different from those of Muslims.

The notion that disputes within the United States involving Muslims should be left to the Muslim communities, to the exclusion of traditional American law enforcement, is a well known attribute of the Black Muslim groups. Consider this event from the 1970s, described in a recent American court opinion:

The turning point in Tommy's life was the murder of Alice and Jamie Brewer in 1975. Alice helped a mentally retarded and schizophrenic family member, Arnold Hughley, with cooking, shopping and finances. According to Bernard King, Black Moslems visiting the neighborhood teased Hughley with a rubber snake. Hughley grabbed a gun from his house and killed one of them. The police arrived and a huge crowd gathered. Black Moslems pulled up in a vehicle with a loudspeaker and announced to the crowd that no one should talk to the white police; they would seek their own justice for the killing. No one would talk to the police.
The Black Moslems sought out the family and friends of Hughley for retribution. Alice and Jamie Brewer were abducted by men wearing ski masks. Neighbors witnessed the abduction. The Brewers' bodies were found a week later, shot and burned in an abandoned car in Alabama. The police arrested some Black Moslems returning to Tennessee with guns that matched the shells found at the scene. A photo lineup, which included pictures of those arrested with the guns, were shown to witnesses, who identified the men as having been in the neighborhood prior to the abduction posing as census workers going door to door asking questions about the Brewers and their friends and family. The arrested individuals were released for lack of evidence and the case was never prosecuted. Two other persons who associated with Hughley were also abducted and killed. Their bodies were found in Georgia. Four houses, including Bernard's and Vicki's, were firebombed.
The injustice of the Brewers' murders overwhelmed Tommy King. His whole attitude toward life changed. He could not understand why the Brewers, who lived such good lives should have been murdered, and he who had lived a bad life should still be living. After the killings, Tommy would tell Bernard that he had seen and talked to "Mama." Bernard tried to convince him it was not possible, but he insisted he talked to "Mama." When Tommy worked at the Brass Register Restaurant in 1979, Bernard received phone calls from Tommy's boss asking him to come because Tommy was seeing and hearing something that others could not see or hear. Tommy insisted he was seeing "Mama" and was having a conversation with her. Tommy began using drugs to an even greater extent than before. His relationship with the mother of his young son ended just before the robbery and shooting in Columbia.

Tommy was Tommy King, the defendant in the opinion that contains this quote, who was ultimately prosecuted for murder. The opinion dealt with whether he should be executed. King v Bell, 392 F.Supp.2d 964 (M.D.Tenn. 2005). Another unhappy ending in a scenario where Muslims are responsible for policing their own communities. I am not making this stuff up. Anyone who doubts that can check the law books.

As a said, the "I am a Muslim" defense is often easy to spot, and the bigger challenge is identifying it when the signs are more subtle. The cases described above are easy examples of courtroom jihad: of attempts to impose Shari’ah law in America, and the court generally had no trouble doing the right thing, as long as we are cognizant of what is happening. I will save those more difficult cases for a later article.

(As always, the view expressed in the article at the author’s own, and do not reflect those of the Department of Justice.)

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