The Supreme Court of the United States is obviously one of the most influential institutions in this country, if not in the entire world. Each year, the Supreme Court hears arguments in a select number of cases. Eventually, it decides upon the cases it has selected to hear and issues an opinion. The opinions of the Supreme Court influence and affect the way that all people in the United States get to build their lives. The Supreme Court, the third branch of government in the US, yields a considerable amount of influence in defining the values, the norms, the institutions, and the way of life in the US. And because the US is not just politically and militarily influential, but also culturally influential, the Supreme Court in turn influences much of what happens around the globe, whether intentionally or unintentionally.
This term, the Supreme Court is deciding a number of cases involving Muslims and issues that should be of considerable importance to Muslims. What the Court decides will count as a precedent, and it does not stay as precedent for just one presidential term, it stays as such for the foreseeable future. Administrations count on these precedents and the precedents take on a life of their own in a variety of ways.
Two of the most prominent cases before the Supreme Court - ones where they recently heard oral arguments and we are awaiting the decisions - commonly involve a claim from the executive branch of the federal government that, because of state secrets and national security concerns, both cases should be dismissed in summary fashion. One of those cases arose out of the prolonged detention in Guantanamo of a detainee that was grabbed from Afghanistan, named Abu Zubaydah.
Like in all of the detention cases, someone alleges that an individual has ties to either Al Qaeda or Taliban. Few Muslims know that President Bush made the decision early on that the US will not treat the Taliban according to the Geneva Conventions. The President made the decision that, although we were invading a foreign country, native Afghan fighters belonging to the Taliban or any other Afghan force were not going to be treated under the rules of war regulated by the Geneva Conventions, meaning that the Taliban or any other Afghans did not have to be treated as prisoners of war. Not only that, but this decision allowed American forces to treat those who resist the American invasion of Afghanistan as exactly as they would treat Al Qaeda fighters, as terrorists.
As a result, all the US government has to do is claim that it is acting against Muslims under the rubric of the War on Terror and they receive superpowers. If the US government says, "I am targeting a Muslim under the War of Terror," the executive branch essentially has nearly unfettered discretion in what it gets to do.
It can grab any Muslim around the world that it claims has ties to Al Qaeda, the Taliban, Daesh or ISIS. It can grab any Muslim and throw them in a black site anywhere around the world. It does not have to give them an opportunity to defend themselves. It does not have to afford them any type of defense or explanation. It does not have to afford them any type of due process or hearing. It does not even have to admit that it is holding them.
But in a very famous case decided by the Supreme Court years ago, the Supreme Court said that such a person grabbed under the label of the War on Terror can even be an American citizen; can be a Muslim who is a US citizen who is grabbed and considered an enemy of the United States. There is the qualifier that they have to be grabbed outside the US, but that means even a US citizen may be grabbed outside the US, thrown in a black site, held in Guantanamo indefinitely as long as the government claims, "We need to hold this person because of the War on Terror."
The government does not need to charge this person. They do not even need to present evidence. They do not even need to provide an explanation. Many cases arose involving Muslims who were grabbed from all over the world, and we see that there is a pattern to these cases. Case after case, a Muslim is grabbed, transferred to either a military base or a black site anywhere around the world, and they are tortured. Eventually, after being tortured, they are transferred to Guantanamo where the torture and torment continues, and where they are held until The Executive decides to release them, if The Executive decides to release them. There is also a pattern to these cases. None of these people were provided an explanation. None of these people were afforded due process. None of these people were made whole although their lives were thoroughly destroyed.
Abuses of power are possible when the silence of people is complicit. The problem in all these Muslim abuse cases is that Muslims have been complicit with their silence; like with the Muslims of India, like with the Rohingyas, like with Muslims leaders, like with the Muslims who are rotting in prisons all over the world. The Muslims of Guantanamo and victims of the War on Terror found nothing but Muslim complicity through their Muslim silence. Because there is silence, the abuse continues.
The nature of power is that it is intoxicating and such an intoxicant knows no restraint unless the restraint is coercive. Violence only increases the intoxication of this power. Nothing serves the truly powerful except the excuse to level a greater use of power, and a greater demonstration of dominance, hegemony and supremacy. When we commit violence against the truly powerful, we only give them an excuse to unleash a greater intoxication of power. The only restraint that is possible is public shaming, which sometimes works; solid democratic institutions; or the rule of law.
So one of the cases before the Supreme Court involves Abu Zubaydah, who the US government claims is a very important Al-Qaeda operative. God knows if this claim is true, because the government gets to cherry pick what it shares, and none of us will get to hear from Abu Zubaydah directly. For the past 15 years, Abu Zubaydah has been held in Guantanamo without charges and without judicial process. The only thing we know about this man is what the US government has decided to tell us. Of course, he is not alone in this situation. Right now, Guantanamo has about 40 Muslims, which is not including the hundreds of other Muslims that were held for many years and since released, but their lives are now in chaos.
Upon his arrest, Abu Zubaydah was held in a number of places. Among them, he was transferred to a black site in Poland. In that black site in Poland, like unfortunately many other reports that reached us about black sites in that region, he was tortured to the point that he lost an eye. Eventually, after being tortured in the black site in Poland, he was transferred to Guantanamo, where he remains today.
Abu Zubaydah found lawyers that were outraged with what happened and, of course, they are not Muslim lawyers. Having despaired of obtaining justice in the United States, they sued Poland in the European Court of Human Rights, alleging that Poland violated the human rights of Abu Zubaydah when they allowed him to be held and tortured in a black site. The European Court of Human Rights demanded the presence of two American contractors, not American government officials, but American contractors who reportedly were hired by the CIA to torture Abu Zubaydah. The US has an agreement with the European Union that allows the EU to obtain the cooperation of the US in issuing a subpoena to US citizens to testify in certain types of cases in Europe.
So, the European Court of Human Rights demanded that these two US contractors testify in the case against Poland for torturing Abu Zubaydah. The US quickly moved to quash the subpoena, on the grounds that if these two contractors testify, it would endanger the national security of the United States. This is known as the State Secrets doctrine, where the government says to the court, "If you allow this case to proceed, it will reveal information that will endanger the national security of the United States so, although these contractors are not government officials, the US should not honor the European Court of Human Rights request to have these two people testify; they should not be allowed to testify.” Of course, if they do not testify, the case filed against Poland is greatly affected.
The second case has a very different posture. I mentioned some of the underlying facts of this case in another Khutbah, but the FBI in this case hired an informant who was sent to the Orange County, California area to pretend to be someone of French-Algerian origin, who is interested in rediscovering and converting to Islam. The FBI's instruction for this informant was to mingle in the community, to get to know as many people as possible, to photograph and report people, all of which this man did for a period of time. And as I mentioned in the past khutbah, he was being paid very handsomely for his efforts.
The man would go to mosques every day, getting to know everyone in a number of mosques, but his focus was on a particular mosque in the Orange County area. During this time, he would regularly meet with FBI operatives. He would particularly single out young people. He even asked permission of the FBI to have sex with some women in the Muslim community and the FBI granted him permission to do so. The FBI would show him pictures of people in the Muslim community in Orange County and ask him to rank them in order of danger. Who knows what the criteria for danger was? But any Muslim that frequented the mosque, that spoke, that did anything, was someone that he would target, would film and would report.
Eventually, this man went around the Orange County area saying that his faith as a Muslim called upon him to wage jihad and that he wanted to commit a terrorist act and kill non-Muslims. Eventually, the Imam of this mosque asked this man to stop coming and when he refused to comply, the Imam obtained a restraining order against him, called the FBI and said, "We have a potential terrorist in our midst." Of course, the Imam had no clue that this was an FBI informant. At that point, the FBI fired him.
This reminds me of an instance years ago when a journalist from the LA Times, Teresa Watanabe, called and asked to meet with me urgently. She came to our home and handed me a long document of testimony by this informant given to the LA Times. Teresa asked me, "Is this man legitimate?" When I read the document, it included the names of many people that I knew in the Muslim community, especially in Orange County. It even included the names of some people that I had as students in the law school.
This man's story was shocking, simply because it was an affirmation of what so many Muslims suspected. The FBI was not just spying on Islamic institutions; the FBI was sending informants planting the idea of criminal activity and basically anyone that would fall in the dragnet by expressing a desire to engage in criminal activity would be trapped, because they in turn would be turned into informants, if not criminally prosecuted.
The lawsuit was filed by an Imam in Orange County, along with a few others that sued the FBI for illegal spying, as well as for discrimination against them as Muslims because their freedom to practice their religion was greatly impacted. They were terrorized and intimidated by the government, as many of the people who had an experience with this informant no longer felt safe going to the mosque, teaching or being active members of the community. They claimed that it was discrimination against their religion and impeded on their freedom to practice their religion. They were targeted for nothing else other than the fact that they are Muslim.
The government’s defense was, in part, to claim immunity; that part is technical and so there is no need to get into it. But the other part of the defense is like the first case, the government said, “This case should be dismissed because if we defend ourselves in this case, it will involve revealing secret evidence. It will involve revealing state secrets and doing so would endanger national security." The district court, accepted what the government said and dismissed the case without even asking the government, "What type of evidence are you referring to, that is so dangerous that the entire case has to be thrown out just because you say that national security will be compromised if this lawsuit continues to go on?"
The circuit court reversed the district court’s ruling, not by saying the lawsuit should go on or by saying that the Muslims should win. All the circuit court said is that the district court was too hasty in throwing out the case without first finding out more about the alleged secret evidence that the government is claiming is so dangerous that it would compromise national security. So in actuality, what the circuit court said is that the judge should have asked the government to summarize these very dangerous elements that would be revealed if the case is not dismissed and should do so ex parte, in secret, so the defense would not even get to know what the evidence is. After looking at the summary, the judge would then decide whether to dismiss the case or not. This is the decision that the Supreme Court is reviewing.
Several things have caught my attention about these cases. The Ninth Circuit decision is very long and complicated regarding the second case. The number of attorney hours that went into this case is truly enormous. The case was brought on behalf of Muslims by the ACLU. If this case was not handled by the ACLU and instead was handled by a private attorney, it would have cost no less than a million dollars. Ultimately, all this cost is just so the district court will actually hold the government a little bit more accountable before saying, "I am dismissing this case for national security reasons."
The Supreme Court that is hearing the case is the same Supreme Court that has upheld the Muslim ban; the same Supreme Court that is remarkably deaf when it comes to cases of prejudice against Muslims. It is the same SupremeCourt that ruled that the government can hold a Muslim citizen indefinitely, as long as the government says there is a war on terror. This is the same SupremeCourt that has allowed for all types of abuses against Muslims because Muslims are not part of the public conscience of the US.
I am not optimistic about the result in either case. But even if there is a victory, consider this. This case was exposed because of a very unusual situation. The informant in question drew attention to the operation when the FBI unceremoniously fired him, although he had a non-disclosure agreement with the government. He knew he would go to prison if he ever talked about this case, but this informant took the very unusual step of saying, "I do not care if I go to prison, I am blowing the whistle on this matter."
For every case that reaches the court, and for every individual tortured in the black site that actually sues and the case actually goes up the judicial process: can you imagine how many individuals we have no clue about? In the same way that this case was exposed because of an informant that said, "I do not care if I go to prison," can you imagine how many cases there are of the FBI spying on Muslims, entrapping Muslims, building unlawful records and surveillance of Muslims that we hear nothing about?
Even with the cases that are exposed, if there was no ACLU and no civil rights organizations, it is not remotely conceivable that any Muslim would have been able to fund lawsuits such as these at their own expense. Even when Muslims manage to file a lawsuit, the judiciary branch is made up of human beings. Human beings are influenced by culture; influenced by systems of knowledge. Judges, and particularly the legal profession, tend to be conservative and the judiciary branch particularly tends to be not just conservative, but a rather meek and shy institution. No judge wants to risk being told if a terrorist attack happens, “You are responsible for what happened because you, although you are an unelected official, are the one who let the terrorist go free.”
So, what judges will typically do, unless their consciousness is heightened or the political cost of allowing a government to get away with abuses is high, they will err on the side of believing the government. If the government tells them this Muslim is dangerous, they accept it without question. But if the government tells them this Jew is dangerous, any judge will sufficiently have their sensitivities rallied up to say, "What are you saying?"
The same thing happens with spaces involving white supremacist groups. Judges have enough political capital to be able to say to the government, “You are telling me that you violated the rights of this white person, and you have national security reasons that you will not and cannot talk about? Why not?" But when it comes to Muslims, because Muslims are such a silent victim, complicit in their own miseries through their own silence and ignorance, there is no such questioning from judges. Courts do not invest much time in the social implications of the cases in which they handle. If you tell them that this is a dangerous, jihadi Muslim that should be held at black site and tortured, they will go along without question. No one is going to embarrass the judge if he says he is going to go along. It does not cost the judge anything if he says he is going to go along, so he will easily say, “Ok, I’m going to demure; I’m going to defer.”
If you tell the judge that this is a jihadi Muslim and they need to be held in Guantanamo for 10, 15, 20, 30 years without charges, the judge will go along. The judge looks around and everyone seems to hate Muslims, and no one is embarrassing the judge who is demurring so why not? If you tell the judge that Muslims are dangerous and must be banned, they will go along. After all, the judge will think, “There are even some Muslims who say that is a good idea. So, it is not like anti-Semitism. It is not like Black Lives Matter. This is a non-explosive issue - a bad Muslim. Who gets to decide who is a bad Muslim? The judiciary branch should not decide, it should be the executive branch.”
The logic is, “If you are telling me that Muslims need to be spied on and that Muslims need to be entrapped in terrorist plots and sent to prison forever, I will trust the judgment and go along. After all, Muslims themselves are not bothered if they are spied on. It is not like spying on a synagogue. It is not like spying on any actually conscious, civilly conscious people who raise hell.” Muslims cannot even file their own lawsuits. Muslims are so oblivious that they do not even have institutions that can protect them legally or that litigate their own cases. Muslims are all completely reliant on the non-Muslim other as they instead pontificate about hadiths and whether this insignificant point is legitimate or not. Judges are human beings. The judiciary branch is a human institution and so is the executive.
The CIA that grabs Muslims from all around the world and tortures them, and they know there will be no blowback. No Muslim government is going to say, "How dare you," to the FBI that spied on and entrapped Muslims. There was even a minor caveat that caught my attention about this story of the informant: every Muslim that trusted this informant and told him something about themselves and something they had done that was illegal, paid the price.
There was one guy that truly befriended this informant, of course not knowing he was an informant. When the informant started talking about blowing up stuff, this guy called up the FBI and turned in his friend, and was surprised when he saw nothing happened to this guy. But during the course of this friendship, he told the informant that he had lied on his citizenship application years earlier. So, although this was a good citizen in the sense that he turned in someone he thought was a terrorist, after the informant was fired and this lawsuit was filed, this guy found himself arrested and in denaturalization proceedings because he had lied on his citizenship application. So, for being a good citizen or turning in someone he thought was a terrorist, he was arrested, his citizenship was taken away and he was deported to Egypt. Of course, Muslims are too busy yapping about absolutely nothing on social media, engaging in pretensions of importance to even notice.
It is not only that our priorities are off. It is not only that our consciousness as Muslims is deeply affected and deconstructed. So many Muslims said, "Trump is not really an Islamophobe, he is just a politician." Imagine if they said that about anyone else. Imagine if I made grotesquely anti-Jewish statements. Can you ever imagine a self-respecting Jew would come and say, "Khaled is not really an anti-Semite, he is just pretending to be for political reasons”? What would the position of this Jew in his own community be? Imagine if I used the N word and said horrible things about black people. Would someone then say, "Khaled is not really a racist. He is just pretending to be so he can get elected”? If they did, you would look at this person and say they are disgusting. If you act like a racist, you are a racist.
But with Muslims, I have heard a million times: "Oh, they are just saying horrible things about Islam for political reasons, but it does not actually mean anything." I would not at all be surprised if there are Muslims who say, "The FBI is spying on Muslims, so what?" “Those Muslims that are grabbed around the world and tortured, they could be tortured in their own country.” How about if they were born, as many of them were, in the US? “These are just aberrations.” That is how a defeated people think. That is precisely how broken people think. But it is not just about defeatism.
One of my students showed me an article that is very interesting for just the tip of the iceberg it reveals. The article talks about how the United Arab Emirates invested an enormous amount in supporting Islamophobic organizations in Sweden. With a little research as to articles that this article references, it becomes quite obvious that the Emirates incubated information networks consisting of right-wing nationalist Islamophobes and orientalists in academia, in media and in policymaking institutions, not just in the US, not just in Europe, but even in countries like the Cameroon and other African countries.
The UAE has spent millions of dollars on civil rights organizations in Europe, like the Swedish Civil Contingencies Agency, to make these organizations who are supposed to be focused on civil rights, instead focus on Islamophobic discourse; in other words, convince Europe and the US of the danger of Islamists. The UAE funded the Center for Asymmetric Threat and Terrorism Studies, which is headed by a notorious man named Magnus Ranstorp. Ranstorp is identical to Robert Spencer and Daniel Pipes in the amount of anti-Islamic garbage he spews out.
The logic of the UAE is bizarrely simple. The Islamic institutions and academic Islamophobic institutions funded by the Emirates started pushing something called the conveyor belt theory. The conveyor belt theory is identical to Daniel Pipes and Robert Spencer's sleeper cell theory. What it says is that Islamism, which according to the UAE-funded organizations is any Islamic institution that is interested in any civil rights issue, international issue or any political issue; as well any Muslim intellectual who writes, teaches or speaks about Shari'a, acts like a gateway drug, according to the conveyor belt theory.
All Islamic institutions are gateway drugs to jihadism. Someone starts out interested in the Qur'an and in the Sunna, they start out interested in prayer and fasting and before you know it, they are on the conveyor belt to becoming a jihadi. So, the solution, with remarkable regularity for every institution funded by the UAE anywhere in the world, is that they have to control what occurs in Islamic centers. They have to control all Muslim civic society organizations. They have to carefully navigate and engineer the way Muslims think, the way Muslims talk, the way Muslims teach, and the way Muslims learn.
Ironically, all of this is done in the name of the Western values of freedom, democracy and, believe it or not, religious liberty. The UAE spends millions of dollars disseminating this message in the name of religious tolerance. There is a word for this, and that word is colonialism. They are colonizing the Muslimmind.
What is the UAE's incentive? After the Arab Spring, Muhammad bin Zayed became convinced there is one real threat to his despotic, authoritarian system of governance in the Emirates. He believed that if there was ever a populous threat against the legitimacy of his government and the way that he unilaterally controls the untold wealth of the Emirates; that would threaten the fact that he gets to spend whatever he wants of his country's wealth without oversight, it would come from an Islamically animated people. If there was any danger, secularism would not get these Muslims animated. Communism is not going to do it. Socialism is not going to do it. There is only one real threat, and that is an Islam that cares about human rights, human dignity and democracy. So, his response was to disseminate an Islam around the world that is thoroughly controlled and regulated.
I will go back to where I started. As a Muslim, the pretense is that you are discovering things about a religion that are making you doubt. The pretense is that Muslims are played, but in reality they are holders of power that manipulate and engineer everything we know about our own tradition and even our attitude towards us defending ourselves against oppression. If the ACLU stands up to defend Muslims because their civil rights have been violated, it is one thing. But if CAIR does it, according to the UAE and UAE-funded organizations, CAIR is a terrorist organization.
So the average Muslim, in light of this Islam that is pushed and propagated everywhere by the Emirates, learns to steer away from trouble; and not to build institutions that can leverage power in favor of Muslims; and not to engage civil society in a serious constructive way, but to simply do what courts do: to defer and to demure. Even courts are influenced by the Emirate's Islam, because courts do not have the time and expertise to develop counter narratives to the narratives they hear from power. If people in DC and Sweden and Oslo, and all the people that have the titles are telling them Islam is dangerous, only to be followed by the government telling them, "I have to do what did because these are dangerous people. I cannot tell you why they are dangerous, but just trust me.” That is exactly what courts have done and will do. They tell the government, “We trust you. Go ahead, abuse these people because we do not know better.”
It has become a moral obligation for every Muslim to divorce any Islam, any Muslim institution, any Muslim individual that is complicit in accepting Emirati money, or complicit in being part of the extremely insidious program that the Emirates have spread around the world. Just this week, the Emirates have again held Bahrain military exercises with Israel.
Last year, the Emirates hosted a conference in which representatives from all religions signed an agreement where they agreed to defend each other against prejudice. The remarkable thing is that the Emirates, who hosted and sponsored this conference - a conference in which, of course, Hamza Yusuf and Bin Bayyah were the Muslim representatives - did not apparently include the expectation of either Muslims, Christians or Jews defending Muslims when they are persecuted in India or China or America, although by the terms of this agreement, it would seem to be that is what tolerance is, according to Emirates. No, according to this agreement, Muslims should defend Christians and Jews if they are persecuted, but it does not work the other way.