IASC Report: Islam in American Courts - 2007 Year in Review

By Jeffrey Breinholt

Note: this article report is a shortened version of a study I conducted under the auspices of the International Assessment and Strategy Center (IASC). Readers who would like to see the charts and the case citations which are omitted from this version should consult the larger report (here)

History is important. It gives us perspective into modern problems. We can gain immediate comfort seeing how so many “ new” issues have been considered by courts in the past. As I have written (here) American court opinions explain that the threat of Islamic actions against our nationals is the very reason we have diplomatic assets overseas, and they show that al Qa’ida targeted the United States in part because of the economic sanctions we promoted against Iraq well before our 2003 military invasion. They also show that FBI wiretaps are hardly a new controversy (here), nor is the phenomenon of Muslims exploiting charities in hopes of achieving worldwide domination (here).

Legal history is particularly relevant to national security and counterrorism, and not merely because we are a country governed by the rule of law. Judicial opinions are interesting because of the facts they generate. Court cases are an undervalued source of strategic intelligence about the threats we face from radical Islam within the U.S. People in this category generally do not advertise their hopes, dreams and aspirations, and being parties in litigation forces them to disclose more about themselves than they otherwise would. Court opinions give us a vantage on the goals and methods of people who are not always willing to be transparent.

The history of Islam in the U.S. courts is not a long one, which is a good thing. It means this aspect of legal history is easily digestible. Most of it comes from the last 25 years. We now have another year under our belts. Which cases from 2007 will future historians and strategists use to glean trends relevant to American national security?

As I predicted several months ago (here), 2007 ended with highest number of American court opinions involving Islam than any in U.S. history. They totaled 888 cases (792 federal opinions and 94 state opinions). While there were plenty of other cases involving Muslims, this search yields only those cases where Islam is specifically in issue in the opinions.

To understand how recent a phenomenon this is - courts mentioning Islam in their opinions - there were more opinions involving Islam in 2007 than there were in all the years in U.S. history prior to 1980, combined.

From the total number of Islam cases in 2007, several can be eliminated from analysis: cases in which “Islam” or “Muslim” was the name of one of the parties but not otherwise relevant to the controversy, cases where the words were in the title of another case cited by a court, and cases in which the words were part of an analogy or rhetorical device in an opinion that otherwise does not involve Islam. This leaves a meaningful universe of relevant 2007 Islam cases totaling about 750 (mostly federal, with 83 from state courts).

The predominance of federal cases over state cases is driven by three types of controversies: prison litigation, asylum, and employment, most of which are brought in federal court.

Most prisoner cases are brought in federal court because they involve some alleged constitutional violation. The cases in this category typically involve Muslim prisoners who claim that prison authorities are not properly respecting their religious preferences. These cases are not particularly interesting or relevant to national security. Prisoners have quite a bit of time on their hands, and their constitutional complaints rarely amount to meritorious claims. In 2007, I counted 280 Muslim prisoner cases (268 federal and 12 state). They do not offer much insight into how historians will view 2007. Omitting them from analysis reduces the number of relevant 2007 Islam opinions to a little less than 500 cases.

These cases can be categorized (in descending order of volume) as asylum, employment, criminal, constitutional and civil rights, private terrorism, defamation, and family law. What do we see when we delve into the specific cases within these categories?

Muslims Claiming Asylum

If prisoner litigation is the most banal aspect of the federal district judges’ jobs, the equivalent for their colleagues on the U.S. Courts of Appeal are asylum cases. The federal circuit courts hear direct appeals from adverse judgments from immigration judges, and these cases are fairly pedestrian, and decided on the basis of facts in the administrative record. Unlike the prisoner cases, however, asylum cases are a source of geopolitical intelligence, since they involve the purported political and cultural climate of home countries to which aliens fear being forcibly returned. Where the claimant is a Muslim alien who fears being sent back to his/her Muslim country, these cases are also a source of some needed political perspective; they represent a rebuttal to the claim that the United States is not a force of good in the Muslim world. In these cases at least, individual Muslims view the U.S. as their last best hope, and they rely on American legal procedures offered to them to establish this fact.

As I predicted last fall (here) 2007 generated the highest number of asylum cases involving Islam than any year in U.S. history - 212 opinions. About half these cases involved non-Muslim claimants (mainly Christians and ethnic Chinese) who feared being sent home to Indonesia, the world’s most populace Muslim country, because of what they believed would happen to them. However, these cases also included 44 opinions involving Muslim claimants. This total is down from the number of asylum opinions involving Muslim claimants in 2005 and 2006 (55 and 56 cases, respectively). Despite this drop-off, the figure raises the obvious question: if U.S. foreign policy is truly creating enemies in the Muslim world, as so many now claim, why do so many Muslims prefer to stay in the U.S. rather than be forced home?

The big source country for the 2007 Muslim claimants was Pakistan (12 cases), followed by Bangladesh (six). Each is a Muslim country. Stay tuned. The recent assassination of Benizar Bhutto probably portends an increase in Pakistani asylum claims in 2008. Once again, the U.S. will find itself picking up the pieces of some broken part of the Muslim world, by having these cases heard by our most prestigious courts. This is a consequence you are not likely to hear about in the news accounts of the murder.

Of course, not all of these Muslim asylum claims are premised on accurate facts, nor is asylum granted by the courts frequently. Of the 44 opinions, 35 were affirmances of the immigration courts’ denial of the asylum claim, while nine were remanded back to the immigration judge. In one 2007 opinion, a Somalian was prosecuted in Tennessee for false statements made in his asylum claim. The significance of these cases is not their result, but the fact that we offer a judicial means for Muslims who fear being sent home to their home countries, through a process which arguably goes beyond what is required by international law.

Muslim Employment Discrimination

Muslim employment discrimination cases were at an all-time high in 2007: 69 cases (65 federal and four state). Prior to 2007, the biggest year was 2006, with 57 Muslim employment decisions. As I have noted in another article (here) this trend is inexplicable, because Muslim employment discrimination cases are generally losers. Nevertheless, they keep on being filed, in increasing numbers. If these cases are taken on a contingent-fee basis, there are bound to be some very disappointed plaintiffs’ lawyers at the end of the day.

Of these 2007 employment cases, only one involved a victory for the Muslim plaintiff. In fact, in U.S. history, there are only about a dozen cases in which the court issued a final verdict in favor of Muslim plaintiffs in religious employment discrimination cases, and even this figure is generous. History suggests that cases that were not dismissed in 2007 eventually will disappear, since they so rarely result in a verdict for the Muslim plaintiff, at least when judged by the available judicial opinions. In other words, the cases that reman pending are likely to be dismissed eventually. Is it about time to ask why lawyers are taking these cases?

Perhaps they are not taken on a contingent-fee basis. The 2007 Muslim employment discrimination cases shows a large number of claimants from the white collar professions: a lawyer, a pharmacist, a doctor, a pilot, engineers, several corporate executives and university professors. Maybe these plaintiffs can afford to pay their lawyers by the hour, which make them more attractive clients. Several Muslim plaintiffs, however, were government employees, including those employed in law enforcement and national security and public safety positions. It would be disturbing if the legal expenses for these cases were borne by foreign governments or organizations, something that would not be apparent from the litigation file or the opinions.

Criminal Prosecutions

Next time someone claims that American prosecutors never win terrorism cases, or that Muslims are not more likely to be terrorists than other ethnic enclaves, recommend that they to visit a law library, where they will find several published 2007 opinions in the case books where Muslims were successfully prosecuted for conduct related to religiously-inspired violence. This past year also generated opinions in cases of this type that remain pending. It cannot be said that it is impossible for the criminal justice system to incapacitate terrorists. The year 2007 also saw individual Muslim defendants doing nasty things short of terrorism: rape, child rape, lewd acts with a child, visa fraud, drug dealing, gang violence, murder, a violent shooting, and domestic violence. The only reason these opinions are “Muslim” cases are because Islam was injected into the court proceedings or was part to their factual record.

The year 2007 also saw several criminal cases that illustrate a phenomenon I have described in other articles (here) as the “I am a Muslim” defense: individuals who claim that their conduct is excusable because they were following religious dictates or because their Islamic faith necessarily meant they were of good character. A version of this strategy is in play in those cases where the defendants claim they were inappropriately selected for prosecution because they were Muslim, an argument that consistently fails.

The 2007 cases include Muslim defendants who used their religion as a stalking horse, claiming that it was prosecutorial misconduct for the jury to be exposed to any reference to it, as if it is sacrosanct, even if arguably relevant to the case. The most unscrupulous version of this tactic involved the intentional injection of Islam as a defense, followed by the claim that it was unfair for the prosecution to counter it, as occurred in one 2007 case.

A particularly insightful (and amusing) criminal case from 2007 dealt with a Philadelphia bank robbery, where the male assailants dressed as Muslim women, in clothing they knew would minimize their chance of being identified. That they relied on this tradecraft cuts against any argument that the government should eagerly accommodate this style of religious clothing in such processes as issuing driver’s licenses.

I found only three opinions in 2007 that referred to violence inspired by anti-Islam animus. The small volume of these cases is surprising, and cuts against the notion that the U.S. has a major anti-Muslim hate crime problem. If these incidents are as widespread as the Muslim civil rights organizations claim, they are somehow eluding judicial opinions.

Libel and Slander

This past year saw a number of cases which continue the tradition I described (and decried) in another article (here) of Muslims suing non-Muslims for defamation. I have yet to find a single case in U.S. history where a Muslim plaintiff prevailed in this type of case. The closest one arose about 20 years ago in New York when a tabloid that published a 1984 article about the artist formerly known as Cat Stevens unsuccessfully sought indemnification from the Italian magazine that sold them the information. The court opinion in that case described how Stevens, who now calls himself Yusuf Islam, had obtained a settlement from The Globe. This settlement was odd, because the allegations in the article that Stevens/Islam objected to - his conversion to Shi’a and his fealty to Ayatollah Khomeini - were less embarrassing than his subsequent public support for the Khomeni-issued fatwa against fellow artist Salman Rushdie. Looking back on it, the article was probably accurate, and The Globe probably settled too readily. After all, truth is a complete defense.

In 2007, I found five defamation cases involving Muslim plaintiffs, and they tended to involve law enforcement. A Muslim woman who was arrested as she attempted to cash a suspicious cashier’s check at a bank sued the bank for slander, for its act of calling the police to investigate. A person in trouble with the law in western Pennsylvania claimed that local law enforcement officials defamed him by privately referring to him as the “gay Muslim serial killer.” The family of a 16-year old Muslim girl in Davis, California arrested for hit-and-run, sued the county for defamation, based on the sheriff’s written response to a civilian oversight board report undertaken because of the public outcry over the arrest. A Brooklyn Muslim leader (who, incidentally, was named as an unindicted co-conspirator in the 1990s Sheik Rahman prosecution) sued the leader of the Guardian Angels, a private vigilante group, for claiming that he was involved in arms trafficking in Canada. A Muslim FBI agent sued ABC and Fox News for stories it ran about the allegations that the agent refused to wear a wire in an investigation targeting Muslim subjects.

The 2007 cases involving Muslim libel seem part of a larger effort to control the flow of inconvenient information, and they are remarkable within defamation law because they focus so much on information that is necessary for government functions. We have seen this is in earlier years, where Muslim employees sued their employers for discrimination and included slander counts based on statements the employer made about the employee’s job performance to the government entity responsible for investigating whether discrimination occurred. That dynamic was very much present in the 2007. Where American law enforcement depends on private citizens to report illegal activity, those citizens are now apparently fair game to Muslims who find themselves under investigation. The goal seems to be to make people think twice before undertaking their civic duty. It is a bad sign.

Sometimes, efforts to control speech are styled as anti-discrimination actions rather than defamation. A Muslim man in Texas filed a frivolous lawsuit challenging a Christian minister’s (and President Bush’s) use of the term “Islamo-fascist,” alleging that it was a civil rights violation. Local fair housing councils in California sued the operator of online roommate-matching website, alleging that the website violated Fair Housing Act (FHA) and state laws by permitting a posting which expressed a preference not to have Muslim men as roommates. The court found this action barred by the Communications Decency Act.

This year also saw cases in which conservative student clubs came under fire for discussing Islamic terrorism and human rights in Muslim countries, where the speech was characterized as violations of school conduct codes.

Constitutional Claims and Challenges to Government Operations

If the Muslim libel cases are designed to control the flow of information, the same goal was explicitly behind the litigation in which Islamic advocacy organizations sought a declaratory judgment and permanent injunction against U.S. agencies' practice of entering and disseminating civil immigration information to state and local enforcement officials through National Crime Information Center (NCIC) database. Meanwhile, when the threatened speech emanates from Muslims organizations, First Amendment values are generally used as a sword, as in the challenge to the constitutionality of the permit process that was a prerequisite to and holding an anti-war protest on national park land, and in the litigation to force U.S. officials to permit Swiss Muslim academic Tariq Ramadan’s entry into the United States.

Muslim challenges to law enforcement in 2007 were not limited to efforts to stop the flow of information. Individual Muslims challenged their border stops, search warrants executed on their homes, the freezing of their bank accounts, their being pulled off a domestic flight because of complaints by fellow passengers, their prosecution for not paying child support, their investigation for identity theft, their arrest for immigration violations, the eviction from their apartment, and the constitutionality of the PATRIOT Act amendments to the Foreign Intelligence Surveillance Act and of the National Security Entry-Exit Registration System (NSEERS) program. Muslim organizations designated under the terrorist financing-related executive orders challenged the decision. The vast majority of these cases were dismissed in favor of the government.

Muslims who sought their release from immigration detention through writs of habeas corpus failed little better, succeeding once, while losing three times. A Muslim from Serbia-Herzegovina lost his effort to prevent his extradition. One U.S. detainee succeeded in reversing the denial of his habeas corpus petition, which challenged his detention as an enemy combant, and his case was remanded for more specific findings relating to his detention status.

The challenge to government operations extended to the judiciary. A Muslim litigant sought disqualification of the judge, claiming he was prejudiced against Muslims. Another claimed judicial discriminatory conduct because he was a Muslim, and sought $ 5 billion in punitive damages. A person who lost a breach of contract lawsuit challenged the verdict, claiming that the jury was prejudiced against him because he was a Pakistani Muslim. All lost.

The strangest Muslim lawsuit against the government in 2007 was filed in Oregon by Samir Taha. He alleged that the CIA and President Bush engaged in unlawful wiretapping, that he has been spied upon by the CIA and subject to illegal wiretaps since 1983, and that he experienced racial and religious discrimination in a variety of ways. He asserted that the CIA and certain unidentified “Jewish organizations” conspired with Portland State University (PSU) and Vergil Miller (the former Dean of PSU's business school), to “destroy” his academic standing, deny him entry into a masters degree program, and blacklist him with potential employers. He claimed that the CIA conspired with the Immigration and Naturalization Service to “freeze” his citizenship application for approximately seven years, ending in 1993 when he became a U.S. citizen. The alleged conspiracy continued in 2001 and 2002, when the CIA contacted IOS, his leasing company, and convinced IOS to change the terms of his lease and force him out of business. He claimed that the CIA convinced his accountant to falsify his tax return, convinced Wells Fargo to close his bank accounts, blocked his efforts to refinance his home, and somehow caused lenders to charge him high interest rates. He claimed that he suffered a stroke because of the stress brought about by the CIA's interference, and that his recent attempt to open a restaurant either failed or was frustrated because the CIA had wiretapped his telephones and scared his customers away. He contended that the CIA has conspired with Jewish organizations and had taken these actions in violation of the Fourth Amendment and the Foreign Intelligence and Surveillance Act (FISA) because he is an Arab Muslim. This case was dismissed.

Similarly, one mentally ill Muslim man unsuccessfully challenged his civil commitment, claiming he had been tortured by the police. A West Virginia man sued doctors, claiming that they hate him because he was a Muslim and that he was denied certain unspecified medications unless he agreed to sign “a drug contract from the Drug Enforcement Agency.” I should note that the 2007 Islam cases included litigation initiated by apparently delusional non-Muslims who feared that Muslims were conspiring against them.

Private Terrorism Lawsuits

Meanwhile, private lawsuits against Islamic terrorists - which have been on the increase - were generally successful. The year 2007 saw four default judgments entered against Iran for various state-sponsored acts of terrorism. Private plaintiffs also successfully sued Sudan for al Qa’ida terrorism. The lawyers representing various bank sued for helping facilitate Islamic terrorism have failed so far in their efforts to get these cases dismissed, and the cases remain pending. These private terrorism cases have included lawsuits involving Muslim victims. Persons abused in Nigeria and dislocated in Indonesia sued two American oil companies, and those cases are pending.

One terrorism case against Iran was dismissed, based on the court’s finding that the plaintiff lacked standing. The torture lawsuit filed on behalf of aliens detained by the U.S. military in Iraq and Afghanistan was dismissed. An individual Pakistani unsuccessfully sued another Pakistani he had hired to care for his elderly mother, after she was kidnapped and died in captivity. Persons allegedly tortured by the royal family of Abu Dhabi failed in their lawsuit. In the waning days of 2007, the Seventh Circuit Court of Appeals reversed the verdict that American victims of Hamas terrorism in Israel had obtained against several Muslims and Islamic organizations, and remanded the case back to the district court for more fact-finding.

Family Disputes

The last category of Islam litigation involved family law - divorce, custody and estate cases.
The most extreme version of this type of case involved woman who was convicted of murdering of her Muslim husband in a fit of rage after he took a second wife. The divorce cases included a Pakistani polygamist husband who claimed he was entitled to relief because he had divorced his second wife, and the question of how to deal with a marriage dissolution under Iranian law. The custody cases included an Egyptian husband who claimed his wife’s sympathy with terrorism made her an unfit parent, a case in which Black Muslims were allegedly threatening to take the minor out of foster care, Muslim parents who objected to their son being placed in foster care with a Christian family, and the proper name of a child of divorced Muslim parents. The estate case involved the disposition of a bank account opened by a deeply religious deceased Jordanian woman and whether it should be divided equally among her five daughters - whose lifestyles she opposed - rather than given entirely to the daughter who was the signatory on the joint account.

In addition to these family law cases, the other more mundane Islam cases in 2007 involved litigation over the handling of the bodies of deceased Muslims, a witness’ the desire to swear the courtroom oath on a Quran rather than a Bible, a challenge to one party’s mentioning the other’s Muslim faith before the jury in a banking dispute, and couple real estate and zoning disputes.

Conclusion: Want to Bet?

There are some very real lessons from this past year’s cases involving .Islam Of course, there would not be as many prison cases if we did have so many Muslims convicted of crimes and incarcerated. We would see fewer Muslim asylum cases if Christians and ethnic Chinese were not threatened with persecution in Indonesia, or if Muslim countries were not so broken and inhospitable that their own nationals would rather throw themselves at the mercy of our courts to avoid being sent home. How about the Muslims we have here? Far too many are demonstrably involved in terrorism and more petty crimes. Many law-abiding Muslims claim discrimination in the workplace, without any real hope that these claims will succeed, and many resort to frequently-frivolous litigation designed to control how people express themselves and to frustrate government security efforts.

Is this going to change? Does the New Year portend a shift in these trends? Don’t count on it. I predict that this time next year, I will armed with new stories and writing another article describing how 2008 set an all-time high for cases in some of the categories described above. I hope I am wrong, but I somehow doubt it. Is anyone interested in a friendly wager on this proposition?

It need not be this way. Despite the insight these cases offer to national security professionals struggling with the mystery that is the American-Muslim community, we may someday reach a point when Islam is no longer relevant to many judicial proceedings. When that happens - and the “Islam cases” in American courts slow to a trickle - people like me will be deprived of an object of research, but you will not hear us complain. It will mean we have succeeded in establishing a society where another ethnic community is fully integrated into the American dream and realizes that we are all in this together, and that additional inconveniences must be tolerated as long as we face a threat from political Islam. At that point, we might focus our days on the next big problem, maybe Russian mobsters who have achieved a foothold here. Until that happens, we should continue to mine these Islam cases for strategic intelligence and insight into today’s challenges.

TrackBack