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?

Six days after the 9/11 attacks, a group of agents from the Detroit Joint Terrorism Task Force searched an apartment in pursuit of a man on the FBI’s terrorist “watch list.” What they found instead were three North African men—a fourth would eventually be arrested—and material the government believed pointed to terrorist planning. The men, the indictment said, “operated as a covert underground support unit for terrorist attacks within and outside the United States, as well as a ‘sleeper’ operational combat cell.”

The trial that followed in 2003 provided a dramatic illustration of the battles of interpretation in the war on terrorism and within Islam. With only limited evidence of a possible plot, prosecutors tried to link the defendants to what the indictment called a “transnational network of radical Islamists.” In a lengthy introduction, the indictment described Salafiya, a movement that aims to emulate the first generation of Muslims, by saying that it wages constant “global jihad” to conquer infidel areas. The indictment cited bin Laden’s fatwa against “Jews and Crusaders,” and the fatwa of Sheikh Omar Abdul-Rahman against American civilian targets, although no evidence tied either to the defendants. (The indictment also noted that the campaign against the Soviets in Afghanistan drew extremists who “were encouraged to engage in jihad as an essential element of their religious duty.” The prosecution did not say that the United States had provided that encouragement, along with funding and weapons. In a number of terrorism trials, the anti-Soviet resistance that the United States actively backed has been used as proof of violent zealotry.)

In truth, the only possible link between the defendants and the ideology of “global jihad—beyond the defendants’ Islamic faith and an unreliable informant’s assertions—was 105 Arabic-language tapes found in the defendants’ apartment, mostly containing the speech of an Egyptian preacher named Osama al-Kousi. There was no proof that the defendants had either listened to al-Kousi’s words or adhered to them. But al-Kousi’s philosophy became a point of heated contention between the prosecution and the defense; indeed, al-Kousi became a phantom defendant of sorts. Four expert witnesses—two for the prosecution and two for the defense—offered their opinions on his discourse. (“I think the jury will be overjoyed to hear another expert on Islamic fundamentalism,” U.S. District Judge Gerald E. Rosen quipped in advance of yet more testimony.)

Khaled Abou El Fadl, a prominent Islamic scholar, was a witness for the prosecution. El Fadl is of Egyptian origin, was educated at Yale, Princeton, and the University of Pennsylvania, and is now a law professor at UCLA. At one point he testified that al-Kousi described certain jurists or scholars as mistaken or heretical, and others as good jurists—the real scholars: “And that’s a very important theme throughout these tapes—who are the real people that you should listen to, and who are the real scholars you should listen to, and the people that are pretend scholars, not real scholars.”

El Fadl might as well have been talking about the trial’s dueling experts. Over days of testimony, they presented opposite interpretations not only of the tapes but also of Salafism, the sect of Islam that al-Kousi followed. They sparred over the meaning of “economic jihad,” and the beliefs of Ibn Taymiyya, an important thirteenth-century Muslim thinker. They talked about the fragmentation within Islam—and came to embody it themselves.

First for the prosecution came Walid Phares, a Lebanese Christian academic who emigrated to the United States in 1990, at the end of Lebanon’s civil war between Muslims and Christians. In Lebanon, Phares’s political activities included participation in the Lebanese Forces, a coalition of right-wing Christian militias that the defense said the U.S. State Department had labeled anti-Muslim. El Fadl, his fellow prosecution witness, calls Phares an “Islamophobe,” and at trial the defense sought to demonstrate as much. By his own characterization, Phares, an associate professor at Florida Atlantic University, was outside the academic mainstream until 9/11. But since the attacks, he has become a prominent public commentator on the dangers of “jihadism.” He is an analyst on MSNBC, the author of Future Jihad: Terrorist Strategies Against America, and a senior fellow at the Foundation for Defense of Democracies.

As an expert, he brought more certainty than depth to the stand. He conceded that he had listened to some of the al-Kousi tapes while driving, and one while jogging. Much of his knowledge of Salafism had come from the Internet. He testified that he had never been to Saudi Arabia, Yemen, or Egypt; had never taken a course in the Koran or hadith; and had never been to a Salafi mosque. Phares himself revealed the limits of his kind of expertise. He and the defense experts disagreed about whether taqiya—religiously sanctioned dissimulation—would be practiced by Sunnis, which the defendants were, or, as the defense argued, only by Shiites. To prove his point, Phares brandished an article from USA Today about Pakistani men at a Karachi mosque preparing to come to America to blend in as a “sleeper cell.” The article, he said, was an example of modern Sunnis practicing taqiya. The defense was skeptical—USA Today was hardly scholarly literature, the lawyers asserted—but the judge allowed Phares to testify that he had read in the press that taqiya was being practiced in North America, by Sunnis.

As it turned out, the article’s author was Jack Kelley, whose career with USA Today ended in the spring of 2004, when the paper concluded that “at least 20 of his stories contained fabrications and that he also lifted at least 100 passages, without attribution, from other publications.” The story Phares invoked was “among those cited,” a correction attached to it says. According to the paper, “U.S. consulate officials in Karachi, Pakistan, said they could not verify the existence of the specific mosque Kelley described—which would suggest that the young men inside it were equally unverifiable. Presented to the jury as truth, the article was, in fact, a mirage. Phares couldn’t have known that when he testified—but when I met with him this year, he was still citing the Kelley story. As to the tapes, Phares’s testimony was unequivocal: al-Kousi was a Salafi, he said, and thus by definition supported violence. Phares agreed with the prosecutor’s statement that the Salafi philosophy “advocates violence against the non-Islamic world to achieve an Islamic world order.”

The defense painted a different picture of both al-Kousi and Salafism. Wael Hallaq, a professor of Islamic law at Montreal’s McGill University, called al-Kousi the “ultimate pacifist” and a critic of radicals. Al-Kousi, Hallaq said, considered himself a better Salafi than those who advocate violence. Hallaq is an Arab Christian, educated in Israel. The second defense expert, Bernard Haykel, is an associate professor of Middle Eastern and Islamic studies at New York University and has a doctorate from Oxford. He is the son of a French Lebanese Christian and a Polish Jewish Holocaust survivor. Defense attorneys on terrorism cases have generally avoided Muslim experts, fearing that juries will not find them credible. Prosecutors have tended to favor them. Each side, El Fadl says, is playing to the jury’s prejudices. Some Muslim (and even non-Muslim) scholars also fear testifying for the defense, lest they attract government scrutiny. In part because of his mixed heritage, Haykel, who has participated in at least three major terrorism trials, is a “dream witness,” according to one defense lawyer.

Haykel has specialized in Salafism, doing extensive field research in Yemen, and he disputed Phares’s interpretation that mainstream Salafism was violent. At one point, the prosecution asked him whether he agreed with the statement, “The Salafist philosophy advocates violence against a non-Islamic world to achieve an Islamic world order.” He replied, “I agree that it applies to the radical Salafism, not to the mainstream Salafists.” Haykel further said that “Mainstream Salafists advocate a strict adherence to Islamic ritual law,” and “total obedience to the ruler of the state they live in.” They oppose electoral politics and political parties, and aim to convert the Muslim world to their way of understanding Islam “through preaching and teaching and propaganda.”

Haykel did not agree that al-Kousi was the “ultimate pacifist,” as Hallaq had maintained, but he did say that al-Kousi opposed jihadis. And he tried to explain why much of what al-Kousi said was not to be taken literally. The reason for this, Haykel said, lay in the character of religious, and specifically Islamic, speech. Al-Kousi, for example, used rhetorical devices common to polemical speech, such as quoting his opponents in order to rebut them. The prosecution, Haykel argued, treated al-Kousi’s recitation of his opponents’ positions as his own. Haykel also went out of his way to distinguish between religious and political speech. In religious speech, he testified, Muslim leaders or scholars say things that would sound very objectionable to most Americans and non-Muslims. Sometimes “very bad things are said about non-Muslims,” he continued, “but that’s religious speech; [it] doesn’t actually lead to actual political activism or engagement.”

THE COURT: How does one distinguish that to—for example, to—the American ear? How does one distinguish that?

HAYKEL: It’s not easy. You’d have to be trained, like I am, in deciphering that kind of talk. It’s like listening to an evangelical Christian. If you don’t know the context, it’s difficult to know what they’re actually talking about. You might think that something is much more extreme than it actually is. The … followers of these movements, students know, and their enemies know, exactly what is being said, because of the pitch, the sources that are mentioned, and so on.
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Amy Waldman is a national correspondent at The Atlantic.

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