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?

I met with Haykel and asked him to expand on these distinctions. Haykel had testified that when al-Kousi said infidels should be put to death, the Egyptian preacher meant that an Islamic state, not individuals, should carry out that punishment. Similarly, Haykel told me, some of al-Kousi’s statements that sounded violent were actually invocations to God, not exhortations to fellow humans. Asking God to kill enemies or Jews or Americans was not the same as telling people to do so. “You’re not giving directives to the congregation to go and engage in violence,” Haykel said.

Bin Laden, he said, made similar prayers, but then took it a step further by telling Muslims they had a duty to kill. According to Haykel, al-Kousi never took that step: “He was very clear when he was actually saying you should do something versus what he hoped God would do or he hoped would eventually happen with God’s intercession.” Real jihadists, he said, are “absolutely explicit when they intend violence. There is no obfuscation, there is no double entendre.”

Haykel’s argument, in other words, was that there were clear standards for dangerous religious speech. For much of the twentieth century, the United States wrestled with the question of when speech became so dangerous that it should be stripped of constitutional protection. The government prosecuted people for seditious speech during World War I (some were only recently exonerated, posthumously). During the Red Scare, membership in the Communist Party—and speech and literature in its defense—merited prosecution under the Smith Act, a federal statute that was upheld at the time by the Supreme Court. Partly in response to that history, the Supreme Court in 1969 laid down the clearest standard yet for legally impermissible speech. In Brandenburg v. Ohio, the Court said prohibited speech had to be “directed at inciting or producing imminent lawless action,” and it had to be “likely to incite or produce such action.”

The rhetoric of Islamic extremism may present the toughest challenge for that standard since its establishment. The question lapping at the trials’ edges—and sometimes at their core—is how the law should deal with language that does not incite but, through a long slow process, indoctrinates. On the continuum between word and deed, belief and action, where do we draw the legal lines?

Al-Kousi, the subject of so much expert testimony in the  Detroit case, himself helped to frame the debate. As   the experts recounted, al-Kousi describes on the tapes two kinds of terrorism, intellectual and physical, and says that the former lays the groundwork for the latter. Bloodshed begins with words, he says repeatedly. As Hallaq put al-Kousi’s point, “Terrorism can begin with an innocent word—or something that looks like an innocent word.”

Was al-Kousi warning against intellectual terrorism, or engaging in it? On this, the experts disagreed. Phares said al-Kousi was providing “a mountain of ideological buildup.” Nothing on the tapes called for an attack on the United States, Phares said, but the rhetoric legitimized one. Hallaq and Haykel, in contrast, insisted that al-Kousi was warning against the danger of intellectual terrorism. On the reality of that danger there is less dispute. Phares argues that 90 percent of Islamic terrorism is the nonviolent preparation for acts of violence. The war on terrorism “is a war of ideas, at the end of the day,” he said when I met him at MSNBC, where he was the analyst in residence on a gray Saturday. Haykel, in turn, said when we met two months later:

I think it’s true that jihadism comes with a whole apparatus of propaganda, a whole worldview, a set of ideas, and a way of indoctrinating these ideas into people. People don’t blow themselves up just because they wake up one morning. They need preparation. They need to be inculcated with certain views and ideas, and jihadism is very good about that.

That inculcation has ample source material, Haykel said, because many hadith and Koranic verses seem to advocate violence; most Muslims just know not to take them literally. Is it possible, he was asked during cross-examination, that someone radically inclined might take al-Kousi’s words as a call to action? “Well, the Koran can be taken as a call to action,” Haykel answered. “You don’t need to listen to al-Kousi.”

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Amy Waldman is a national correspondent at The Atlantic.

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