"Intense Hospitality"- Islam in American Courts and Why It Matters

By Jeffrey Breinholt

During the week we recognize the sixth anniversary of the 9/11 attacks and Congress considers the future of U.S. involvement in Iraq, I want to offer some general observations about an issue I have been writing about - Islam in the American courts - and why awareness of this history is so important to counterterrorism challenges we face today.

Here’s a little-known historical fact that comes from an American court case: the reason Western countries chose to place military and diplomatic assets in foreign locations was the threat of Muslims to their nationals residing those countries. We know this because of a 1957 Supreme Court opinion, in which the wife of a U.S. Air Force sergeant who killed him and was thereafter convicted in court martial proceedings successfully challenged the application of the military tribunals to her overseas conduct. The concurring opinion by Justice Felix Frankfurter contains a history lesson, and a hilarious typographical error:

The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. * * * In other than Christian countries they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offenses. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hospitality of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offense, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people.

Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222 (1957).

Justice Frankfurter was quoting from the Court’s 1891 opinion in Ross v. McIntyre, 140 U.S. 453, 11 S.Ct. 897 (1891) and, if you look at that older opinion, you will realize the word “hospitality” should instead read “hostility.” Without this edit, the quote seems odd, as it suggests “intense hospitality” (a strange term in English) yielding barbaric punishment and torture, as if these things were party favors. When you consider the original language, the meaning of the Frankfurter’s language is clear: the reason we project an official presence in foreign countries is because we cannot trust how foreign countries governed by Islamic law will treat our citizens there.

Fortunately, we do not have to deal with the threat of Islamic law to American citizens who live in the U.S. This is why, prior to the 1960s, Ross v. McIntyre and Reid v. Covert were two of only a handful of cases in which an American judicial opinion mentioned Islam.

Alas, that is no longer true. We now face Muslims who want to kill us on our homeland. When caught, they sometimes try to justify what they are doing by Islamic law. Doubt that? Look at the cases.

Since this article contains general observations, I am going to avoid the temptation to drive home this point through case examples, and save it for another article. Here, I will stick with the numbers. Has the frequency of references to Islam in American court cases gone up with the rise of Islamic terrorism?

Part of the beauty of computerized legal research is the ability to search cases for particular words. I did this to determine the number of state and federal opinions that mention Islam. For this, I constructed a search for the words “Islam,” “Muslim” or “Moslem,” or some variation of these words (which, for example, would capture “Islamic” and “Muslims”). The following graph illustrates the results by decade, starting in the 1960s.

Graph: cases by Decade

Note that we still have over two years left in the current decade, yet the total number of American judicial opinions mentioning Islam is more than double what we saw in the 1990s.

This next graph, which carves the data more finely to deal with the number of cases published each year since 1990, provides more insight:

Graph: cases by Year

In this graph, I did not include the cases from 2007, since one-quarter of the year remains. However, the number of federal and state opinions issued so far in 2007 (530 and 68, respectively) suggests that the final 2007 tally will slightly exceed those figures from 2006.

To get at why there has been such a dramatic increase, one has to review the cases, something I have been doing over the last few months. While my research is continuing, I can offer this explanation: in general, Islam is increasingly being asserted by Muslims as relevant to American legal controversies. The exponential growth in federal opinions in comparison to the state court opinions (the frequency which have gone up, but remained fairly stable) is the frequent issuance of federal opinions in three types of cases: (1) prison cases, where Muslim prisoners housed at federal and state correctional facilities argue that they are being deprived of religious freedom, (2) employment cases, where Muslims claim they are being unfairly discriminated against in the workplace, and (3) asylum cases, where Muslims and non-Muslim aliens argue they should not be sent back to their home countries because of what Muslims on non-Muslims will do to them. These three types of controversies are generally decided by federal courts, and are the most recurring type of opinion mentioning Islam, along with criminal prosecutions involving Muslim defendants, which can be either federal or state.

It is the actual court opinions, beyond the numbers, that are so fascinating. Why is this legal history relevant? In counterterrorism, the law library is an undervalued source of strategic intelligence. Legal controversies involving Muslim parties are a rich source of insight, since real things are at stake and the results (and reasoning) are published for all the world to see. That means American counterterrorism analysts can get a good idea of the plans of Muslims within the U.S. - including those who might not choose to be so forthcoming about their goals and motivations if not for the litigation - by seeing how they behave in court.

Here is a great example, something to use next time someone argues that Iraq and 9/11 are completely unconnected. This is a claim we have heard since 2003, including this week as Congress questions General Petreaus. Like many others, I believe the claim is snake oil being sold for political profit.

During the prosecution of those Al Qaeda operatives responsible for the August 1998 bombing of the U.S. Embassies in East Africa, one of the defendants, Mohammed Sadeek Odeh, tried to elicit from an expert witness named Imam Seraj W’ahhaj the religious justification for Al Qaeda’s actions in planning and attacking the two embassies: that it was an appropriate response for all religious Muslims to the economic sanctions imposed on Iraq. U.S. v. Bin Laden, 2001 WL 1160604 (S.D.N.Y. 2001).

This courtroom strategy was two full years before the U.S. invasion of Iraq, and prior to 9/11, and this was a fleeting reference in an opinion available on Westlaw. The implications are clear: Iraq was connected to Al Qaeda’s plans, at least in terms of being a motivating factor for Al Qaeda's conduct. Usama Bin Laden and his operatives were outraged by the economic sanctions imposed on Iraq, which is to say the status quo that the advocates of soft power were arguing we should have pursued in lieu of the invasion. Al Qaeda was willing to attack us in part because of these sanctions, which means that we would not be buying fewer angry Al Qaeda operatives if we had let the sanctions continue, judging from what one of its operatives said in an American courtroom. Whatever one thinks about whether the sanctions were sufficient, keeping them in place as a more moderate alternative to boots on the ground would not have led Al Qaeda to view us any more kindly. The Caravan of Martyrs would have continued, somewhere. We know that because of an American court opinion. What else is out there, that we might be missing?

This prospect illustrates a sermon I have been preaching for some time: American legal opinions, for those who choose to scrutinize them, are an underrated source of strategic intelligence about the goals and capabilities of our foreign enemies. In previous articles, I employed this idea to examine the implications of Muslim employment discrimination claims (which are increasing after 9/11 without any corresponding increase in their rate of success) and the Muslim tactic of pursuing frivolous libel actions. Though I have not yet written anything about the Muslim tendency to cloak alleged criminal conduct in Islamic religious principles - what I refer to as the defense of “I am a Muslim,” similar to what Mohammed Sadeek Odeh tried in 2001 - it is also a growing strategy which offers insight into a society Muslims would like to instill here. The growth of Muslim-related litigation means more court opinions, and more data. One does not have to credit the idea that the U.S. court system is becoming Islamicized to see the value of assessing how Muslim litigants behave. In fact, the results (a little secret: the Muslims generally lose) are often less instructive than their arguments and their legal tactics.

Stay tuned. In the meantime, I hope more of my fellow lawyers will start to join me in the intelligence analysis business, where the raw intelligence is within court files, even if they cannot bill their work to a paying client.

(As always, the views in this article are the author’s own and do not reflect those of the Department if Justice.)

TrackBack