As we take stock of the 10 years since 9/11 and the ghastly images of those two towers crashing to the ground, one thing has remained constant since September 12th: the imperative of security. Since then, we have witnessed an immediate military strike against Afghanistan, followed by saber rattling against the Axis of Evil—Iran, Syria, and North Korea; the military invasion of Iraq, climaxing with the execution of Saddam Hussain; the reorganization of the intelligence and security communities to create the Department of Homeland Security; and Justice Department legal briefs examining the scope of permissible torture to extract information that might help us win the new but nebulous ‘war on terror.’
Ten years later, we may be soberly contented with the assassination of Osama Bin Laden, but the Hydra-like al-Qaeda remains a continued threat, with figures such as Ayman al-Zawahiri eluding detection. Regions of Afghanistan are on the verge of falling back into Taliban control. Iraq remains a post-conflict society still hoping to transition to a semblance of ordered government. To make matters worse, the end of the Bush Administration heralded yet a new challenge to Americans—the onset of a major recession that has led to setbacks for American industry and manufacturing, high unemployment rates, and bank foreclosures on the American dream. Ten years after 9/11, Americans cope with insecurity in their day-to-day welfare at home, while contending with continued warnings of an ominous threat of violence from abroad. With all this insecurity, it is perhaps quite predictable that features of the national discourse posit a crisis of existential proportion, hitting the very fabric of our being as a nation and a people.
Simply to posit that there is a crisis is not enough; a crisis begs to be resolved, to be stymied, to be put right once again. To do that, though, requires identifying and locating the source of that crisis. With al-Qaeda both everywhere and nowhere, and the challenges in Afghanistan and Iraq too complex for most of us to understand, our attention turns to the nearest, most apparent and obvious site that represents that threat.
In Europe that site has become the covered Muslim woman. Rightly or wrongly, the ethos of many European nations is construed in terms of customs, values, and ideals that are given pedigrees extending back to the medieval period. The covered Muslim women, walking amidst the relics adorning the streets of Europe, represents a roving threat to that history, which grounds the ‘general spirit’ of these nations, as Montesquieu might say.
For instance, when Switzerland held a constitutional referendum to ban minarets in the country, the propaganda posters supporting the amendment depicted the image of a niqab-clad, ninja-like Muslim woman standing next to missile-like minarets atop the Swiss flag. More recently, France has gone so far as to ban niqabs entirely, as if by doing so it can thwart the threat posed to its values of liberté, egalité, and fraternité, as long as liberty and equality do not include the freedom of all women, Muslim or not, to dress as they choose. The covered Muslim woman, of course, is not the real threat. Rather, the threat is what she is made to represent—she is not the enemy; the enemy is a tradition that makes her veil in the first place.
Across the Atlantic, the existential threat to the wellbeing of the United States is felt in a different way. The national ethos of European nations draws upon a depth of history that is not part of the American story. America, so to speak, was birthed by an act of revolution, its general spirit inked on parchments to which all can bear witness at the National Archives in Washington D. C.—the Declaration of Independence and the Constitution of the United States. In the one, a revolutionary spirit of birth and redemption. In the other, a blueprint to nurture that spirit through the institutions of government and law provided therein. Consequently, it is hardly surprising that the current insecurity of the nation—its existential threat—is identified as a tradition that is made to stand for everything America is not, namely Islamic law. Islamic law (called Shari’a in Arabic), more than any particular Muslim man or woman, represents the enemy within, the terror threat that—as security analysts, politicians, and legislators across the country have proposed—should be stymied to put America on the right course once again.
Securocrats, Shari‘a, and the Threat to America
In a 2010 report issued by the Center for Security Policy entitled The Shari’ah: The Threat to America, a team of security experts expressly reprimanded official government policy on Muslims and Islam as naïve and foolishly politically correct. The team was comprised of 19 security specialists and retired military personnel led by Lt. Gen. William Boykin (ret) and Lt. Gen. Harry E. Soyster (ret). Boykin had been Deputy Undersecretary of Defense for Intelligence, and Soyster had been Director of the Defense Intelligence Agency. Other notable figures on the team were R. James Woolsey, former Director of the CIA; Frank J. Gaffney, former Assistant Secretary of Defense for International Security Policy; Admiral James Lyons (ret), former commander-in-chief of the Pacific Fleet; and Maj. Stephen Coughlin (res), formerly a senior consultant to the Office of the Joint Chiefs of Staff. Importantly, the report reflects the work of a team of ‘securocrats’—most of whom are retired or working in the private sector—who view the world through the narrow lens of national security and threat assessment.
The Boykin-Soyster team spent months studying and assessing the “preeminent totalitarian threat of our time: the legal-political-military doctrine known within Islam as shariah.” As a professor of Islamic law, this author can attest that it is absurd to think that a team of security and military experts could study in any comprehensive fashion a centuries-old tradition in a matter of mere months. Admittedly, the purpose of the Boykin-Soyster team had little to do with understanding Shari’a or its varying significance to Muslims worldwide. Rather, their express aim was to apply official US threat assessment doctrine to the Shari’a.
The doctrine on threat assessment requires an analysis of the precepts our enemies use to justify their attacks against us. Whether that assessment is “accurate, appropriate, or even identifiable with ‘genuine’ Islam is wholly irrelevant.” For securocrats like the Boykin-Soyster team, if the enemy who attacks and kills Americans “refers to and relies on this doctrine to guide and justify his actions, then that is all that matters in terms of the enemy threat doctrine US civilian and military leaders must roughly understand and orient upon for the purpose of defeating such foes.” In other words, the study is not, nor does it aim to be, an accurate depiction or representation of Shari’a. Rather, it views certain aspects of the historical tradition through a doomsday lens of American security policy.
Certainly, I can appreciate the desire to examine and understand the doctrines that our enemies invoke to justify their violence against us. It makes sense to want to know what our enemy thinks and how he justifies his attacks against us. If that were the only aim of the study, then admittedly, it’s hard to find fault with that approach.
However, the problem is that the report attempts to go further. The Boykin-Soyster team concludes that since our enemy cites doctrines from within the rich tradition of Shari’a, then Shari’a (whatever that might be) is the problem. “Shariah is the crucial fault line of Islam’s internecine struggle.” Indeed, in a particularly rhetorical passage, the report proclaims: “7th Century impulses, enshrined in shariah, have reemerged as the most critical existential threat to constitutional governance and the freedom-loving, reason-driven principles that undergird Western civilization.”
The troubling implication of this position is that if the Boykin-Soyster version of Shari‘a poses an existential threat to our constitutional governance, and if Muslims within the United States adhere to Shari‘a, albeit their own versions, it necessarily follows that there are enemies among us. But how do we identify the enemy among us without simultaneously casting indiscriminate aspersions against all Muslims in America? In France, the enemy is targeted by constraining what Muslim women can wear. In the United States, the Boykin-Soyster team proposes that the enemy can be identified by examining any given Muslim’s attitude toward so-called Shari‘a. The Boykin-Soyster team goes so far as to say that “conformance to shariah in America constitutes as great a threat as any enemy the nation has ever confronted.” The greatest enemy to America, therefore, is no longer the ever elusive al-Qaeda. It is not the Taliban, with whom we are beginning negotiations over the future of Afghanistan. It is not Iran, despite our best efforts to prevent their nuclear capacities. Rather, the greatest enemy to the United States is our Muslim neighbors who adhere to Shari‘a.
What follows from this threat assessment? As various Republican state legislators demonstrated in January 2011, one response is to legislatively ban any and all recourse to Shari‘a in our legal system. Indeed, a Tennessee Bill introduced by state senator Bill Ketron and state representative Judd Matheny initially proclaimed: “The knowing adherence to sharia. . . is prima facie evidence of an act in support of the overthrow of the United States government. . . by the likely use of imminent criminal violence and terrorism with the aim of imposing sharia on the people of this state [Tennessee].” The Tennessee bill has since been amended to remove all references to Shari‘a. Nonetheless, the legislative bills and statutes that have targeted foreign law, international law, and Shari‘a law share a peculiar animating characteristic: they all seek to prevent the onset of ‘other’ legal traditions from threatening the ongoing existence of the American spirit as found in its legal tradition. The titles of these bills evince a crisis of existential proportion, such as Oklahoma’s “Save Our State Amendment.”
At the time of writing, approximately seventeen states have either proposed or passed legislation aimed at banning Shari‘a, or in less direct fashion, ‘foreign law.’ The bills beg a variety of questions, not all of which can be addressed herein. I will divide the bills into three categories. The first category includes bills that refer to Shari‘a (and notably international law) specifically. The second category includes bills with language and structure that mirror the model statute promulgated by lawyer David Yerushalmi in his special continuing legal education course entitled “American Laws for American Courts.” The third and final category is composed of bills calling for a ballot initiative to amend state constitutions.
An American Existential Crisis?
The first set of bills includes those that take issue with both Shari‘a and international law. These bills either amend existing state statutes, or provide ballot initiatives in an upcoming general election to amend state constitutions. The states with such bills include Arizona, Missouri, Oklahoma, Tennessee, and Wyoming. Other bills in this category do not specifically mention Shari‘a, but instead make reference to ‘foreign religious or moral’ codes or ‘religious or cultural law’ (S. Dakota, Texas), though comments from the bills’ sponsors, such as Texas legislator Leo Berman, make evident that fear of Shari‘a is at the heart of the matter.
The pairing of Shari‘a and international law suggests that these bills cannot be easily reduced to mere hostility to Islam. These bills ban both Shari‘a and international law, identifying the latter with institutions of global reach and significance such as the UN, European Union, IMF, or World Bank (Arizona, Missouri, Oklahoma, South Dakota, Wyoming). Shari‘a may offer the site of greatest polemic and fear, but its pairing with international law betrays a deeper fear and anxiety that has swept the American legislative sphere.
If we accept that the general spirit of America is made manifest in its founding documents and the democratic processes that arise therefrom, then recognition and enforcement of a legal tradition that does not bear the vestiges of an American democratic process strikes at the heart of our national identity. In other words, the more American law represents the general spirit of the nation, the more it must be protected from external influences. If we accept this logic of existential crisis, to allow external, foreign sources of law to infiltrate our legal system would be tantamount to national death. In his recent book Political Theology, Paul Kahn of Yale Law School observes that Americans remain reluctant to make domestic space for international law, especially if that might mean displacing our own law. As Kahn writes, “Americans have a problem imagining international law: if law is an expression of popular sovereignty, how can a system of norms that has no source in that sovereign constitute law?”
International law is not simply a source of alternative legal doctrines. Its claim to authority runs counter to the popular revolutionary fervor that made the general spirit of the nation possible. To introduce international law into American courts, given the logic of existential crisis, would be to betray the popular, representative, democratic spirit that made the American sovereign state possible. The founding revolutionary history consecrated America, giving it a sanctity that reverberates in almost religious tones. Indeed, Kahn writes that the “state creates and maintains its own sacred space and history.” If that is so, then any foreign influence on American institutions and law is tantamount to an impurity that threatens to contaminate the foundations of the state. International law is such an impurity. When juxtaposed with international law, Shari‘a appears as simply a more extreme, undeniable threat to our nation’s general spirit, given the attacks on 9/11. Today’s American political imagination gives the state a sacredness and sanctity that many today believe is under threat from external forces, and which demands vigilance lest we let pass the death of the state itself. To ban Shari‘a and international law in a legislative enactment is to use the rituals of domestic law to exorcise the general spirit of the nation.
Regulating ‘Foreign Law,’ Staging Legislative Theater
The second category of bills makes no mention of either Shari‘a or international law. These bills only regulate the use of ‘foreign law’ to govern a dispute between parties to a contract, where the contract stipulates that foreign law governs. The bills generally provide that, despite a commitment to freedom of contract, such freedom is and can be limited if it means applying a ‘foreign law’ that would not grant the parties the same liberties they enjoy under the US constitution and the relevant state constitution. The bills authorize judges and adjudicators either to ignore the choice of foreign law or even to invalidate the entire contract if necessary. Bills that fall into this second category have been introduced in Alaska, Indiana, Kansas, Mississippi, Nebraska, South Carolina, and South Dakota. Tennessee already passed a similar bill in 2010.
Importantly, choice-of-foreign-law provisions are not unusual in contract disputes. Their proliferation attests to the influence of globalization on American corporations and manufacturers. Perhaps for that reason, the bills do not (and could not) go so far as to outright ban recourse to foreign law in any and all cases. Not only would such a blanket ban run afoul of the freedom to contract, but it would also straight-jacket American businesses operating internationally. Furthermore, it’s not clear if the proposed legislation will have much effect. They only limit recourse to foreign law when the foreign law would not grant the ‘same’ rights provided by federal or state constitutional rights regimes. But what does ‘same’ mean, given that no two legal systems are ever identical? The language of ‘sameness’ creates considerable space for judicial interpretation at the interstices of different legal systems.
Ironically, despite their silence on Shari‘a, this particular category of bills is premised upon a particularly visceral reaction against Shari‘a as a threat to the nation. Despite the neutral tone of the phrase ‘foreign law,’ a historical analysis of these bills reveal that they are very much directed against what some have called the ‘creeping’ influence of Shari‘a in American courts. Indeed, this depiction of Shari‘a has become part of the Republican presidential primary contest.
A close reading of the bills reveals a rather startling coincidence: they are nearly identical in terms of structure, organization, and wording. Of course, this is no mere coincidence. The bills take as their model a proposed draft bill available online at the website of attorney David Yerushalmi’s continuing legal education course entitled “American Laws for American Courts.” A comparison of Yerushalmi’s draft bill and those introduced in state legislatures around the country shows that the state legislatures virtually copied Yerushalmi’s draft bill from his webpage. On that same webpage, Yerushalmi explains his motivation for proposing such legislation: “The essence of this draft legislation is to provide a baseline law that provides a statutory framework for precluding constitutionally objectionable foreign laws and legal systems from finding their way into the state judicial system. One example of an offending transnational law is sharia—authoritative Islamic law that is applied as the law of the land in many countries around the world. ” The legislators who have sponsored the Yerushalmi Model Bill have parroted the same argument to explain the purpose of their bills, in some cases even poaching the language word for word, as in the case of Alaska’s Rep. Carl Gatto.
So who is David Yerushalmi? He is a lawyer in Washington, D.C. specializing in national security law. He is also general counsel to the Center for Security Policy, which published The Shari’ah: The Threat to America. In fact, Yerushalmi was a member of the Boykin-Soyster team that authored the report. Many have speculated about Yerushalmi’s motivations: the Anti-Defamation League has held him out as holding hostile views against Muslims, blacks, and immigrants, while he vigorously defends his actions on his website SANE (Society of Americans for National Existence). While many debate Yerushalmi’s motives, what remains clear is his trenchant hostility to his version of Shari‘a. Critical of Shari‘a compliant financing, for instance, he complains in an unpublished paper that international financial institutions do not adequately appreciate the violence and criminality that he believes are endemic to Shari‘a. As a warning to finance executives offering Shari‘a-compliant financial products, Yerushalmi asserts that to be oblivious to the underbelly of Shari‘a, namely “its intimate connection to Islamic terror and holy war against the non-Muslim world[,] amounts to corporate recklessness.” Legislators across the United States have willy nilly sponsored bills that they cribbed from the website of an individual who, far from having recognizable scholarly credentials in the field of Islamic law and history, is a well-known conservative securocrat in the Washington beltway.
Angst and Identity in Law and Politics
The final category of bills goes beyond mere changes to state statutes. They call for a popular referendum to amend state constitutions. The proposed amendments vary from state to state. The 2010 Oklahoma amendment proposed that “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” The same language appears verbatim in Missouri’s proposed amendment, and in slightly modified form in Wyoming’s. The Texas amendment does not specifically mention Shari‘a; instead it reads: “A court of this state may not enforce, consider, or apply any religious or cultural law,” though, as noted above, its sponsor Leo Berman identifies Shari‘a as the amendment’s prime target. South Dakota goes one step further and states: “No such court may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.” The reference to “foreign religious or moral code” is curious—on the one hand being neutral, yet on the other hand begging questions about how a religion can be ‘foreign’ in a country like the United States, whose population represents the religious diversity of the globe. Indiana’s proposed amendment draws almost entirely from the Yerushalmi Model Bill already discussed.
By proposing to amend the states’ constitutions, these bills are designed to shield the heart of the states’ legal systems from external influence, thus manifesting the logic of existential crisis. The problem, though, is that they may very well violate other constitutional protections. For instance, Oklahoma voters approved the proposed amendment in 2010. But a federal court viewed the amendment as violating the Constitution and enjoined its effect. The court reiterated that the First Amendment requires the government to avoid both endorsing and disapproving a religious tradition, such as Shari‘a. The Oklahoma amendment, the court held, denounced Shari‘a, and thereby demeaned the Americans who adhere to it.
Knowing the outcome of the Oklahoma referendum, other states will nonetheless submit their own proposed amendments for voter approval in the next general election. For Texas, that election will be held in November 2011. For Missouri and Wyoming, the election will be in November 2012, on the same ballot as the election for President. That contest will presumably pit the incumbent President Barack Obama against a yet-to-be determined Republican candidate. At a time when the United States is divided between red states and blue states, when ‘birthers’ have questioned the Americanness of President Obama, when nearly 20% of Americans believe President Obama to be Muslim, and when Republican candidates such as Michelle Bachmann pledge to oppose Shari‘a, various states will feature a referendum that makes Islam, Shari‘a, and the ‘foreign’ threat to America a key point of political contestation. From a political perspective, it matters little whether the ballot measures pass or not. They will at the very least provide the necessary kindling for a political firestorm about American identity, American existence, and the enemy among us.
Securitization and the Threat to American Political Culture
Targeting President Obama and now Shari‘a are simply two different manifestations of an angst that plagues many sectors of the American political landscape. That angst is the legacy left by 9/11. Ten years later, in a state of insecurity and with terrorist leaders eluding our detection, it is easy if not natural to want to make sure our own borders are secure from both external and domestic aggressors. Yet, identifying who the threats are and deciding what to do with them are entirely different matters. For securocrats, the doctrine of threat assessment is their playbook, and the logic of existential crisis is all they need to transform the trauma of 9/11 into a cancerous securitization of political culture and debate. As legislators across the country sponsor and support bills that fall into one or more of the above categories, they exacerbate the logic of crisis and the culture of securitization on the basis of ‘research’ and rhetoric that have no pretensions to being responsible, exhaustive, or scholarly. Considering together the Boykin-Soyster study, the Yerushalmi Model Bill, and the logic of existential crisis, we can appreciate (and rightfully worry about) how legislative branches are slowly becoming the new theater of a war managed by securocrats who are politically accountable to no one.