Prophetic Justice

The United States is now prosecuting suspected terrorists on the basis of their intentions, not just their actions. But in the case of Islamic extremists, how can American jurors fairly weigh words and beliefs when Muslims themselves can’t agree on what they mean?

In 1925, John Scopes went on trial for teaching evolution in Dayton, Tennessee. The judge limited the number of experts testifying on the truth of evolution, saying it was irrelevant to proving whether Scopes had taught it. But lawyers on both sides—Clarence Darrow and William Jennings Bryan—virtually conspired to put fundamentalism on trial, as Sadakat Kadri recounts in his book The Trial. At Darrow’s request, Bryan took the stand as a biblical expert, saying, “They came here to try revealed religion. I am here to defend it, and they can ask me any questions they please.”

In their exploration of Islam, the recent terrorism trials have had a similar, if perhaps less circuslike, feel. The prosecution introduces beliefs into evidence, and the defense challenges the meaning or significance of those beliefs. Expert witnesses in Islam then fight pitched battles of interpretation for each side. Some of the experts are mainstream scholars, others outliers with unconventional views. Together, they make up a small but often lucrative cottage industry where their expertise can command $200 an hour or more. In the courtroom, they create a theological thicket that may be shaped as much by their own agendas and perspectives as by the facts of the cases.

Jurors have been schooled in the difference between fatwa (religious edict), and fatah (conquest). They have had tutorials in the history of Islam, from the angel Gabriel’s revelation of the Koran to the Prophet Muhammad to the rise of Osama bin Laden. They have learned about the meaning of bida, or innovation; the authentic chain of transmission for a hadith; and the virgins awaiting a martyr in paradise.

Such a thorough judicial disquisition of a religion has no modern parallel in America. Unless religious beliefs bear directly on guilt—the use of the illegal drug peyote in religious rituals, for example—they are generally barred from trials as prejudicial. Why have the rules changed? Because, as Aziz Huq, a lawyer at New York University’s Brennan Center for Justice, puts it, in recent times no other religion has been “so intimately linked in the public mind to violence.” Since 9/11, judges have given lawyers wide latitude to bring religion into the courtroom.

This surfeit of information on Islam is being presented to non-Muslim jurors who in large part operate from ignorance. Most Americans can parse the differences among Catholics, Holy Rollers, and followers of Jerry Falwell, but when it comes to Islam they know only that “there are terrorists, and then there are good Muslims,” says David Nevin, a criminal-defense lawyer.

Nevin successfully defended a Saudi graduate student, Sami al-Hussayen, who was tried in Idaho in 2004 for helping to manage Web sites containing jihad-related material. He recalls asking a pool of 150 potential jurors how many of them had ever known a Muslim. Only four or five people raised their hands, and all of them were vetoed as jurors by the prosecution. Nevin compares what followed to the Far Side cartoon in which a dog faces a jury of cats.

He analogizes Islam in his and other terrorism cases to the bogeyman—the frightening unknown. Talking about Islam in court is a way to prey on a jury’s fears, he argues—the equivalent of repeating the words brain damage to a jury in a malpractice case. Some prosecutors have invoked the violence in Islam’s history to indict modern defendants, or have suggested that Muslims may be prone to lying. On the whole, American judges have been unwilling to rule such assertions more prejudicial than probative.

The understanding of Islam in the courtroom is also clouded by the crisis of authority in the religion itself. For centuries, the Koran was rarely translated out of Arabic, giving authority to those—usually religious scholars, or ulama—with command of the language. In the past half century or so, the Koran has been more widely translated—or “interpreted,” since Muslims don’t believe it can be literally translated—and that has opened its interpretation to the layperson. The Internet, meanwhile, allows anyone to disseminate texts, opinions, and fatwas—and gain a following. And clerical authority has waned as places like Cairo’s Al-Azhar University, the heart of Islamic learning, have put themselves in the service of secular state interests.

In the Idaho trial, one expert witness, Reuven Paz, provided an apt example of this last trend. In 1956, Paz said, religious leaders at Al-Azhar gave Egyptian President Gamal Abdel Nasser a fatwa prohibiting any possibility of peace with the Jews. In 1978, different clerics at Al-Azhar gave Anwar Sadat “a fatwa that actually legitimized peace with Israel, and basically upon only just a different interpretation of mostly the same verses of the same hadith.”

The debates within Islam also concern who has the right or authority to do the interpreting. Men like bin Laden—who lacks religious credentials—now issue or order up a fatwa. Extremists proclaim their right to interpret Islamic texts. And clerics no longer have the authority to repudiate such interpretations.

Any judicial proceeding involves a search for facts, and trials often hinge on whose experts a jury finds more credible. But the effort seems fraught when it comes to the volatile question of religion, especially one in such tumult. In search of religious truth, lawyers, judges, and jurors who know almost nothing about Islam must wade through multiple layers of translation—from Arabic to English; from the spiritual to the secular; from the metaphorical to the literal. When Muslims themselves cannot agree on what so many aspects of their faith mean, how can American jurors?

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Amy Waldman is a national correspondent at The Atlantic.

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