Counterterrorism Blog

As a legal researcher, I am constantly amazed at how many modern issues we think are unique to our time have been debated in the past and are discussed in old American court opinions. A few years ago, I wrote a law review article which described this phenomenon in relation to the then-hot debates on the USA PATRIOT Act. In it, I argued that the very same points then being made by critics of American counterterrorism efforts had been tried (and resolved) non-stop over the past 50 years, and that these critics should visit the law library before throwing around such words as “unprecedented.” Lately, in the course of my ongoing research on Islam in the U.S. courts, I stumbled on another set of cases that demonstrate this dynamic. These cases involve whether Islam is, doctrinally, a religion of peace, and the implications and consequences of warrantless wiretapping by the FBI. Sound familiar?

The remarkable thing about these cases is that they include a Supreme Court case and an American icon, Muhammad Ali (nee Cassius Clay), yet - to my knowledge - nobody has mentioned how they relate to modern counterterrorism debates. Here’s what I found:

Amazingly, unlike today, where Islam is mentioned in U.S. court cases on a daily basis, references to the religion did not appear in many American judicial opinions - either federal or state - until the 1960s. Prior to that time, I found one 19th Century case in which a rather ponderous judge engaged in some written philosophical (and irrelevant) musings on the development of law on whether the government should reimburse private parties for land that was destroyed when the government built a canal. Canal Appraisers of State of New York v. People ex rel. Tibbits, 17 Wend. 571, Lock. Rev. Cas. 51, 1836 WL 2823, N.Y., 1836. Then, in the 1950s, a couple of state courts issued opinions in cases where persons wanted to change their names to monikers more appropriate to their Muslim faith. In re Taminosian, 97 Neb. 514, 150 N.W. 824, Am.Ann.Cas. 1917A, 116 (Neb. 915); Application of Wing, 4 Misc.2d 840, 157 N.Y.S.2d 333 (N.Y.City Ct. 1956).

The issue of Islam in American courts started to take hold in the 1960s, mainly arising in two contexts: (1) the religious rights of Muslim individuals incarcerated in American prisons, and (2) the claim by American Muslims that they should be exempted from mandatory service in the U.S. military because of their religious beliefs. Each type of case involved courts struggling with Islamic doctrine, but only the second resulted in the Supreme Court entering squarely into the controversy.

The early Muslim prison cases, by and large, involved the growing popularity of the Nation of Islam (NOI) among incarcerated Americans, where courts tried to decide whether the Black Muslims, then led by Elijah Mohammad, qualified as a religion, as opposed to a nationalist cult. Although the military draft cases also involved the NOI, the courts’ focus was on the sincerity of the individual’s religious beliefs, rather than the relationship between the NOI’s brand of Islam and that practiced by Muslims in other parts of the world. This meant that these cases are more interesting to our current debates about Islam than the prison cases.

The claim of American Muslims to “conscientious objector” exemption from military service was undoubtedly hurt by the first controversy reported in American case books. Wallace Delaney Muhammad was granted contentious objector status in 1955, but he then proceeded to harm the cause of future Muslim-American claimants by informing his draft board in 1957 that he would refuse to participate in meaningful civilian alternative to national security at an Illinois hospital. On May 20, 1958, he was convicted of draft evasion and sentenced to three years in prison. U.S. v. Mohammad, 288 F.2d 236 (7th Cir. 1961).

The boxer formerly known as Cassius Clay registered for the draft in 1960. In 1964, he converted to Islam and became a member of the Nation of Islam, and thereafter became known as Muhammad Ali. On February 28, 1966, facing induction, he filed a conscientious objector status form with local draft board. Clay v. U.S., 397 F.2d 901 (5th Cir. 1968). Up to that time, including the Mohammad decision, there had been only four cases of Muslim-Americans claiming conscientious objector status resulting in court decisions. Moore v. U.S., 302 F.2d 929 (9th Cir. 1962); U.S. v. Taylor, 351 F.2d 228 (6th Cir. 1965), and U.S. v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966). Six months later, Ali tried to decrease his odds of going to Vietnam by claiming to be a credentialed minister for the NOI. Clay v. U.S., 397 F.2d 901 (5th Cir. 1968).

The publicity surrounding his case meant that American courts were, more than in the prison cases, going to have to carefully delve into Islamic doctrine and what it says about the acceptability of violence. And yes, there would be wiretaps.

Ali's claim was used by several other would-be Muslim military inductees of the era. The wording in these claims was so consistent as to suggest either central planning by the NOI or an effort by other draft-eligible Muslims to copy Ali‘s example: he was a Muslim, and he and his fellows did not believe that they should be forced to take part in wars conducted by the United States, unless the Government would agree to give them their own territory, in which event they would have something to fight for. Clay v. U.S., 397 F.2d 901 (5th Cir. 1968). See also U.S. v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966); Carson v. U.S., 411 F.2d 631 (5th Cir. 1969); U.S. v. Orr, 474 F.2d 1365 (2nd Cir 1973); U.S. v. Lemons, 480 F.2d 1214 (5th Cir. 1973)

Ali’s claim did not impress his local draft board in Houston, where he had moved from Kentucky, nor the higher authorities. On March 6, 1967, the Presidential Appeal Board unanimously voted to classify him 1-A. Three weeks later, Local Board No. 61, Houston, Texas ordered Ali to report to it on April 28, 1967, for delivery to the induction station. He reported as ordered, for but declined to submit to induction on the grounds of his religious beliefs as a minister of the Islam Religion. He was indicted on May 8, and convicted June 20, 1967. Clay v. U.S., 397 F.2d 901 (5th Cir. 1968).

It was then that the wiretaps came into play. It turns out Ali was captured on warrantless FBI electronic surveillance years earlier, talking by phone to some people the FBI was interested in at the time - Elijah Mohammad and Martin Luther King. When this became known, the Supreme Court ordered the lower courts to re-open his case to see if the wiretaps either tainted his prosecution or were helpful to his defense, in which case they should have been turned over to him. Clay v. U.S., 400 U.S. 990, 91 S.Ct. 457 (Mem).

It turned out the wiretaps, which were not court-authorized (this was before FISA), were not related to the issue of Ali’s guilt, though they are interesting historical artifacts.

On March 24, 1964, Ali spoke by phone to Elijah Muhammad. Elijah said he wanted to see Ali as he was going to make a minister out of him when he quit thinking of fighting all the time. Elijah told Ali would make a better minister than a fighter anyhow. Elijah then said he would contact him when he had time to talk to him. Elijah also told him to “keep quiet.” U.S. v. Clay, 386 F.Supp. 926 (S.D. Texas 1969)

On September 4, 1964, Ali spoke by phone to Martin Luther King. King wished him well on his recent marriage. Ali invited King to be his guest at his next championship fight, King said he would like to attend. Ali said that he is keeping up with King that King is his brother, and that he was with him 100 percent but can't take any chances, and that King should take care of himself, that King is known world wide and should “watch out for them whities,” adding that people in Nigeria, Egypt, and Ghani had asked about King. Id.

A federal judge in Houston, on July 14, 1969, found that the wiretaps did not taint the government’s evidence in the Ali prosecution, that he was not entitled to further discovery, and that he did not have the right challenge the legal or constitutional basis for the wiretaps. U.S. v. Clay, 386 F.Supp. 926 (S.D. Texas 1969). On July 6, 1970, this ruling was affirmed on appeal. U.S. v. Clay, 430 F.2d 165 (5th Cir. 1970). It was all set up for the Supreme Court. For the first time in American history, the justices would undertake analysis of Islamic religious doctrine and what it says about individual obligation to undertake or avoid organized violence, as this was relevant to Ali‘s case.

The Court, in another case, had recently determined that the Department of Justice had been using the wrong standard in ruling on conscientious objector claims: if the claims were “political or racial,” they were not religious. The Court concluded that the claimaint's beliefs need not emanate from an actual religioun to qualify, and the test was whether they were held sincerely and were religious-like, even if not styled as part of an organized system of a recognized religious tradition. Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).

According to the Court in the Ali case, in order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests: (1) that he is conscientiously opposed to war in any form; (2) that this opposition is based upon religious training and belief, as the term has been construed in Supreme Court decisions; and (3) that this objection is sincere. Under recent Supreme Court precedent, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong.

In the Ali matter, the Department of Justice had had concluded that “the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.” However, the Court noted that the record shows that Ali’s beliefs are founded on tenets of the Muslim religion as he understands them, and there was no question that they were sincere. Thus, according to the Supreme Court, “the Department was simply wrong as a matter of law in advising that the petitioner's beliefs were not religiously based and were not sincerely held.” Ali’s conviction was reversed. Clay v. U.S., 403 U.S. 698, 91 S.Ct. 2068 (1971).

The more interesting part of the ruling, in terms of its description of Islamic doctrine, came from the concurring opinion of Justice William Douglas, who used the opportunity to dip into the Holy Koran.

“In the present case there is no line between ‘carnal’ was and ‘spiritual’ or symbolic wars,“ Douglas wrote. “Those who know the history of the Mediterranean littoral know that the jihad of the Moslem was a bloody war.”

Douglas noted that Ali had testified that he was:

sincere in every bit of what the Holy Qur'an and the teachings of the Honorable Elijah Muhammad tell us and it is that we are not to participate in wars on the side of nobody who-on the side of non believers, and this is a Christian country and this is not a Muslim country, and the Government and the history and the facts shows that every more toward the Honorable Elijah Muhammad is made to distort and is made to ridicule him and is made to condemn him and the Government has admitted that the police of Los Angeles were wrong about attacking and killing our brothers and sisters and they were wrong in Newark, New Jersey, and they were wrong in Louisiana, and the outright, every day oppressors and enemies are the people as a whole, the whites of this nation. So, we are not, according to the Holy Qur'an, to even as much as aid in passing a cup of water to the-even a wounded. I mean, this is in the Holy Qur'an, and as I said earlier, this is not me talking to get the draft board-or to dodge nothing. This is there before I was borned [sic] and it will be there when I'm dead but we believe in not only that part of it, but all of it.

Justice Douglas then got into the concept of jihad:

O ye who believe! Shall I guide you to a gainful trade which will save you from painful punishment? Believe in Allah and His Apostle and carry on warfare (jihad) in the path of Allah with your possessions and your persons. That is better for you. If ye have knowledge, He will forgive your sins, and will place you in the Gardens beneath which the streams flow, and in fine houses in the Gardens of Eden: that is the great gain.

Thus God propoundeth unto men their examples. When ye encounter the unbelievers, strike off their heads, until ye have made a great slaughter among them; and bind them in bonds; and either give them a free dismission afterwards, or exact a ransom; until the war shall have laid down its arms. This shall ye do. Verily if God pleased he could take vengeance on them, without your assistance; but he commandeth you to fight his battles, that he may prove the one of you by the other. And as to those who fight in defence of God's true religion, God will not suffer their works to perish: he will guide them, and will dispose their heart aright; and he will lead them into paradise, of which he hath told them. O true believers, if ye assist God, by fighting for his religion, he will assist you against your enemies; and will set your feet fast.

Justice Douglas noted that war is not the exclusive type of jihad, and that there is action by the believer's heart, by his tongue, by his hands, as well as by the sword. Regarding the military type, Douglas quoted again from the Islamic scriptures:

The jihad, in other words, is a sanction against polytheism and must be suffered by all non-Muslims who reject Islam, or, in the case of the dhimmis (Scripturaries), refuse to pay the poll tax. The jihad, therefore, may be defined as the litigation between Islam and polytheism; it is also a form of punishment to be inflicted upon Islam's enemies and the renegades from the faith. Thus in Islam, as in Western Christendom, the jihad is the bellum justum.

Far from harming Ali’s claim, this helped him, for Justice Douglas noted that “The jihad in the Moslem's counterpart of the ‘just’ war as it has been known in the West. Neither Clay nor Negre should be subject to punishment because he will not renounce the ‘truth’ of the teaching of his respective church that wars indeed may exist which are just wars in which a Moslem or Catholic has a respective duty to participate…. What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust.”

This wonderful concept meant, to Justice Douglas, that Muhammad Ali was entitled to avoid Vietnam by availing himself of conscientious objector status.

So we have the Supreme Court, in 1971 - a full 30 years before 9/11 - coming to terms with the Islamic concept of jihad, and worrying about the FBI's use of wiretaps (which Justice Douglas, in another opinion of the same era, described as “a dirty business” and a “disease.” Heutsche v. United States, 414 U.S. 898, 899 (1973)).

These cases are more reason, if there were any doubts, that people concerned with the violent underpinnings of Islam and the efficacy of American counterterrorism efforts should renew their library cards.