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?

Religious speech is extreme, emotional, and motivational. It is anti-literal, relying on metaphor, allusion, and other rhetorical devices, and it assumes knowledge within a community of believers. Its potency is deliberate: faith is about calling on a higher power, one stronger than ourselves, and the very language we use helps inflate that strength. We arm ourselves (itself a violent metaphor) with prayer.

This is hardly unique to Islam. The question of how to interpret a text may be as old as writing, and it applies equally to determining where the power of religious speech inheres. In authorial intent? A reader’s interpretation? Historical or modern context? Over the centuries, and even today, the Bible and Christian theology have helped justify the Crusades, slavery, violence against gays, and the murder of doctors who perform abortions. The words themselves are latent, inert, harmless—until they aren’t.

Our current circumstances beg the question so acutely because America has been a target, and because most Americans are not Muslim. “God damn you!” sounds fine to us, as does “Onward, Christian Soldiers.” “Allah, we place you at their throats” does not. If the words themselves were to be labeled dangerous, Haykel asked me, “why not ban the Koran?” An expert, he argued, could distinguish between rhetoric and practice—or, in these cases, between violent words and violent intent. But he was skeptical that prosecutors, judges, and jurors involved in terrorism trials would be able to correctly ascertain where ideology shaded into criminality. Nor was it clear that even experts could: after all, where Haykel saw harmless speech, El Fadl saw malignity. In the Detroit case, El Fadl conceded that al-Kousi’s words were protected speech. But such speech can still be evidence at trial—and indeed, the tapes had helped convince El Fadl of the defendants’ guilt.

El Fadl has written extensively on how puritans have hijacked Islam—an opinion he wields with such vehemence that some in academia believe his emotion has clouded his analysis. “As an American, as a Muslim, I want these terrorists captured and put in jail,” El Fadl said when we met at his UCLA office, where Islamic texts lined the walls, classical music played, cigarillo smoke filled the air, and his tiny blind dog roamed the floor. Wary of witch hunts against Muslims, he had gone to great lengths to assure himself the case was solid before agreeing to testify. He went over all of the evidence with the prosecutor, who told him that the defendants were “100 percent guilty.” He listened to all of al-Kousi’s tapes. He decided, he told me, that the defendants’ behavior “fit more in the m.o. of a terrorist cell than orthodox puritan Muslims.” He took no money for his testimony. He was convinced—and he testified—that al-Kousi advocated a violent philosophy and had misinterpreted hadith to justify it. El Fadl said al-Kousi espoused an “intolerant, puritanical, fanatic, extremist, literalist” position, and that he legitimated violence by dehumanizing his enemies.

Jurors seemed to see the case much as El Fadl did, and they convicted two of the defendants on the material-support charge. Then, in 2004, the government said that a prosecutor in the case, Richard Convertino, had withheld exculpatory evidence from the defense, and it asked for the terrorism convictions to be thrown out. The judge agreed. This past March, amid a major feud between the Justice Department and Convertino, a grand jury indicted Convertino for withholding evidence.

For Haykel, the reversal of the convictions vindicated his sense that the men were innocent and had been picked up just because they were Muslims in the wrong place right after 9/11. Phares, in turn, continued to insist on the tapes’ “jihadist nature.” El Fadl did not even know that the convictions had been overturned, or the prosecutor indicted, until I told him this spring. The news, he said, deeply depressed him, and the day after we met at UCLA he called and asked me to come to his house to discuss the case further.

Although El Fadl thought that the indictment was Islamophobic, he also felt that Convertino was ethical. El Fadl insisted that, even though the indictment stood, Convertino had come to see it his way. (The indictment was later found to have been partly copied from a scholar’s article on Islamic fundamentalism.) Convertino was the best of the prosecutors who had approached him to testify, El Fadl said: “If I can’t trust him, then I don’t want to play.”

For El Fadl, the saga reinforced the difficulty of being a Muslim public intellectual in America today—of being forced to choose sides. He has been assailed by Muslims for his opposition to puritans, and called a “stealth Islamist” by the columnist Daniel Pipes, who polices American Muslims’ speech for signs of extremism. He has received numerous death threats, especially after his testimony in Detroit, and says someone fired a bullet into his house earlier this year. He describes living a life “so charged that every time you act there are 1,000 people interpreting that act.”

But the case’s outcome also reinforced the difficulty of divining intent. El Fadl is a Muslim, a scholar of Islam, far more knowledgeable than any juror—and yet he, too, appeared to have misread the “dangerousness” of the Detroit defendants. What did it mean, then, to ask jurors who are ignorant and fearful of Islam to judge the nature of a Muslim’s beliefs? The risk of misinterpretation runs both ways: extremists can twist religious language, but prosecutors can also see that language as more extreme than it is. Nothing convinced me of this risk more than Hamid Hayat’s trial, and the role played by the prayer found in his wallet.

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Amy Waldman is a national correspondent at The Atlantic.

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