The insoluble dilemma created by prosecuting jihadists as criminals—and the only way it can be solved

The subject of computer security expert Bruce Schneier’s blog entry in which he accused America of prosecuting thoughtcrime (discussed here) is Amy Waldman’s October 2006 Atlantic article, “Prophetic Justice,” concerning America’s “prosecuting suspected terrorists on the basis of their intentions, not just their actions.” On reading the first part of Waldman’s article, I see that Schneier’s “thoughtcrime” comment, while woefully wrongheaded, is not wholly without basis. Before you conclude that I’m siding with Schneier, an obvious leftwinger and reflexive anti-Christian, read further.

Waldman’s article begins with an account of the trial of Hamid Hayat, a 22 year old U.S. citizen, who was arrested after he admitted attending a terrorist training camp in Pakistan, his parents’ home country, and accused of supporting terrorism. The problem that Waldman zeroes in on is that Hayat hadn’t actually done anything by way of planning a terrorist attack. Yes, he had attended the training camp, yes, he had lied about it, and, yes, he had made various jihadist statements, including a note he carried in his pocket that said, “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” The prosecution, Waldman tells us, cited the note as probative evidence that Hayat had “the requisite jihadist intent” when he attended the training camp and then returned to America.

Though Waldman doesn’t put it in those terms, the article brings out the fundamental contradiction involved in protecting ourselves from jihadists who are citizens of our country. Waldman writes:

The government has sought to demonstrate danger in two ways. The first is through acts, such as training, that are seen as preparatory to terrorism (but not concrete or defined enough to result in conspiracy or other overt charges). The second is through speech, belief, or association—documented through the defendants’ words or material found in their possession—that suggests sympathy or support for terrorism. In case after case, the government has sought to prove allegiance to a radical Islamist philosophy that supports violence in Allah’s name. Much of the evidence, as a result, is religious in nature.

The government’s professed target is extremist dogma. But, as Mary Habeck notes in Knowing the Enemy: Jihadist Ideology and the War on Terror, extremists have gained traction precisely because their dogma finds its roots in Islam’s sacred texts—the Koran and hadith, the traditions of the Prophet Muhammad as documented by his companions—and in subsequent interpretations of Islam. That continuum of religious dogma presents a challenge for Islam, but also for the American court system, where the effort to try terrorist extremism has arguably resulted in the trial of Islam itself. [Italics added.]

Now we can see what Schneier means by “thoughtcrime,” and we can see how tricky it gets when the U.S. government is trying to make a crime out of the expression of sentiments and the reading of books, absent any actual acts of planning and carrying out terrorist attacks. But what Schneier misses is that Islamic sentiments are not like other sentiments of other belief systems. At the sacred heart of Islam is a command to wage war forever on non-Muslims. Which means that someone like Hayat who makes such statements (even, I would say, in the absence of attending the training camp) must be seen as a danger. The problem is, do we want to stretch our criminal processes and our definitions of crime so far as to put people in prison for decades for saying, “Oh Allah, we place you at their throats”?

On one hand, so long as Muslims reside in our country, there will be lots of jihadists among them, lots of potential terrorists, and if we are to forestall terrorist attacks, we must treat a background like Hayat’s as dangerous to us. On the other hand, that means stretching our notions of a criminal act very far, finding criminal behavior in general expressions of hostility.

What then is the solution to this dilemma? Instead of being tried for a crime that could send him to prison, Hayat should be stripped of his citizenship and expelled from the U.S. And any Muslim who engages in pro-jihadist speech or action should be treated likewise. The way to avoid treating the expression of Muslim sentiments as criminal is to cease prosecuting jihadists as criminals and deport them instead. As long as they are here, and in ever greater numbers, we will be forced to turn ourselves into a security state. If we don’t want that to happen, we must initiate a steady out-migration of Muslims from this country, at least until their population here has been reduced to a small, de-Islamized remnant.

And what about Hamid Hayat? A search quickly found that a year after Waldman’s Atlantic article was published, he was sentenced to 24 years in prison. At the end of this very interesting Department of Justice press release summarizing Hayat’s case I have further comments:

FOR IMMEDIATE RELEASE
MONDAY, SEPTEMBER 10, 2007
WWW.USDOJ.GOV

WASHINGTON– Hamid Hayat, age 24, of Lodi, Calif. was sentenced today to 24 years imprisonment by Chief Judge Garland E. Burrell, Jr., in connection with a series of terrorism charges related to his 2003/2004 attendance at a jihadi training camp in Pakistan and his 2005 return to the United States with the intent to wage violent jihad. As part of the sentence, Hayat was also placed on supervised release following his confinement, for an additional period of ten years….

In sentencing Hamid Hayat, Judge Burrell stated, “Hamid Hayat attended a terrorist training camp, returned to the U.S. ready and willing to wage violent jihad when directed to do so regardless of the havoc such acts could wreak on persons and property within the U.S. and then lied about his conduct to the FBI on three separate occasions.”

Kenneth L. Wainstein, Assistant Attorney for National Security said, “The sentence handed down to Hamid Hayat demonstrates the very real consequences for those who train overseas for jihad against the United States.”

“Today Hamid Hayat stands convicted and sentenced as a terrorist—one who traveled from Lodi to Pakistan, trained at a jihadi camp, and returned to our country with the intent of one day striking a blow against it. The threat to our nation demonstrated by the acts of the 9/11 terrorists was brought home with the revelations of Hamid Hayat’s actions two years ago. It has been a long path to today’s sentencing. The many men and women who investigated and prosecuted Hamid Hayat are to be commended for their perseverance and great skill,” stated United States Attorney Scott….

[Now notice the interesting definition of providing material support to terrorism.]

According to Assistant U.S. Attorneys S. Robert Tice-Raskin and Laura L. Ferris, and Department of Justice Trial Attorney Sharon Lever, who prosecuted the case, after a trial from February 14 to April 25, 2006, a federal jury found Hamid Hayat guilty of one count of providing material support or resources to terrorists, and three counts of making false statements to the FBI in matters related to international/domestic terrorism. Specifically, the jury found that Hayat provided himself as “material support” between March, 2003 and June, 2005 by attending a jihadi training camp, and subsequently attempted to conceal his training from the FBI, knowing and intending that his training would ultimately be used to prepare for and carry out acts of terrorism in the United States.

Hamid Hayat was also convicted of making false statements to the FBI on June 3 and June 4, 2005 when he falsely stated that he had never attended a jihadi camp, that he had never received weapons or other types of jihadi training, and that he had never received training to fight against the United States. Former Department of Justice Trial Attorney David Deitch was a member of the trial team.

Evidence at Hayat’s Trial

Evidence at trial established that, during a period of months between October, 2003, and November, 2004, defendant Hayat attended a jihadi training camp in Pakistan and ultimately returned to the United States with the intent to wage violent jihad upon receipt of orders.

According to evidence adduced at trial, between March, 2003 and August, 2003, defendant Hayat, during the course of numerous recorded conversations with a cooperating witness, pledged his belief in [violent] jihad, indicated that jihad was the duty of every Muslim, indicated that he had knowledge of jihadi camps including Jaish-e-Muhammed camps in the Balakot/Mansehar area, pledged to go to a jihadi training camp, and indicated that he, in fact, was going to jihadi training after Ramadan in 2003 (which was to occur at the end of November, 2003).

On May 30, 2005, while en route back to the United States from Pakistan, defendant Hayat’s plane was diverted to Narita, Japan. When questioned by the FBI on that day, Hamid Hayat concealed the fact that he had received jihadi training and that he was returning to the United States for the purpose of waging violent jihad. Hayat was thereafter permitted to return to the United States.

On June 3 and 4, 2005, when questioned by the FBI in Lodi and Sacramento, California, defendant Hayat again attempted to conceal the fact that he had received jihadi training, and that he had returned to the United States for the purpose of waging violent jihad….

The government further introduced a series of incriminating writings seized from Hamid Hayat on the day of his arrest on June 5, 2005 and the Hayat home during execution of a federal search warrant on June 7.

Agents seized an Arabic supplication from Hamid Hayat’s wallet which stated, “Oh Allah we place you at their throats and we seek refuge in you from their evils.” According to a government expert in Islamic law, the supplication was of the type that would be carried by a warrior who perceived himself as being engaged in war for God against an enemy.

Agents also seized a “jihadi scrapbook” bearing the name of Hamid Hayat. The scrapbook included a series of newspaper articles (including articles from well-known extremist groups in Pakistan) that extolled the military efforts of the Taliban, expressed support for Osama Bin Laden and other known terrorists, and espoused virulent anti-American sentiments.

Agents also recovered a June, 2000 magazine from Jaish-e-Muhammed, a well known extremist group in Pakistan. The magazine included various articles supportive of violent jihad, such as an editorial by Masood Azhar arguing that Pakistani men should focus on violent jihad rather than sports, profiles of jihadi martyrs who lost their lives in the disputed Kashmir region, and an article about the mujahideen movement in the Philippines which suggested that it was the religious and moral responsibility of Islam to help out mujahideen wherever they are fighting.

Agents also recovered two Urdu books by Jaish-e-Muhammed leader Masood Azhar entitled the Virtues of Jihad (2000) and Windows from the Prison (2003). In these books Azhar, among other things, extolled the concept of violent jihad, suggested that violent jihad was the duty of every Muslim and a central element of Islam, and suggested that violent jihad should be waged around the world including countries like the United States.

Umer Hayat Conviction and Sentencing

Umer Hayat, age 49, of Lodi, father to Hamid Hayat was tried by a separate federal jury in early 2006 (at the same time as his son) for two counts of making false statements to the FBI, namely, lying to the FBI in 2005 when he falsely denied that he had first-hand knowledge of terrorist training camps in Pakistan and that his son had attended a jihadist training camp in Pakistan. That proceeding ended in a mistrial when the jury was unable to reach a unanimous verdict.

Umer Hayat subsequently pleaded guilty on May 31, 2006 to making a false statement to the FBI and United States Customs and Border Protection (“CBP”), admitting that he had lied to the FBI and CBP in April, 2003 when he falsely told officials that he and his family were only carrying $10,000 on their persons when traveling outbound of the United States to Pakistan, when, in fact, they were carrying in excess of $28,000. On August 25, 2006, Umer Hayat was sentenced to a term of “time-served” and a term of three years supervised release, after having served approximately 330 days of pretrial detention in jail and almost four months of home confinement.

[end of DOJ document]

Here, once again, is the dilemma that I see raised by the above.

On one hand, the U.S. government is absolutely correct to prosecute jihadists such as Hayat—and Bruce Schneier is a swine for calling this vitally necessary trial a criminalization of “thoughtcrime,” as though Hayat’s thoughts were merely thoughts and not part of an organized, religiously mandated campaign of terror being waged against us.

On the other hand, Schneier is right in suggesting that we are essentially prosecuting Hayat for following his religion, and Waldman is right that we are putting Islam on trial. How can you criminalize an entire religion?

Yet such criminalization of Islam is where the logic of prosecution leads. Given the inderminate and growing number of Muslims who share Hayat’s beliefs, we would have to treat as criminals and put away for decades in federal prison tens of thousands or hundreds of thousands of Muslims—and consider the millions of man hours it takes to convict just one Muslim. We would have to imprison every pro-jihadist in America, and, in principle, every jihadist on earth, in the same way that we invaded Afghanistan, arrested Muslims who were on the Taliban side, and put them in prison in Guantanamo, essentially for life.

The only alternative to prosecuting Islam as a criminal enterprise and Muslims as criminals for following it, is to treat Muslims not as bad people but as devout and sincere members of a religion that is intrinsically dangerous to us. Their pro-jihad sentiments and acts should not be seen as criminal offenses committed by individuals and punishable as such, but as part of a religious, political, civilizational threat posed to us by Islam as Islam. And the appropriate response to that political threat is to ban or radically restrict the practice of Islam in this country and to start returning Muslims in the West back to the Muslim world.

The only way to avoid turning America into a massive anti-Islamic security state, constantly prosecuting and jailing Muslims for being Muslims, is to separate Islam permanently from America.

* * *

But, you ask, what about the jihadists who have been sent back to the Muslim lands, from America, and also, it is to be hoped, from other non-Islamic countries as well? Won’t they continue to plot war against us, possibly through the use of deliverable weapons of mass destruction? The answer, as I’ve explained before, is that the U.S. and its allies must plant permanent military bases at the margins of the Muslim world to keep watch over their doings, giving us the capacity to initiate brief punitive raids and invasions to destroy any dangerous regimes or terrorist groups that may have the capacity to harm us, followed by our quick withdrawal so as to avoid getting involved in internal Muslim affairs. This cordon sanitaire around the Muslim world will have to be kept in place forever.

If my plan seems impossible to carry out, and unbearably grim if it could be carried it out, there are two and only two logical alternatives to it: the physical destruction of the Muslim world and much of its population; or renewed, endless efforts to assimilate all Muslims into our world, to turn them into moderate Muslims or ex-Muslims, even as we keep investigating, trying, and imprisoning the ones who remain true to the jihadist core of their faith. The first option is, short of life and death necessity, out of the question; and the second option is, as every honest person knows who has followed the Muslim issue, a liberal pipe dream—a pipe dream that will end with the Muslim takeover of the West that is will have permitted to occur. Separationism will not be easy, but if the will is there to do it, it is doable. The West has pushed back Islam in the past and saved itself, and can do so again.

Posted by Lawrence Auster at December 08, 2008 06:23 PM | Send