by David J. Rusin
September 28, 2012
September 28, 2012
Judges' consideration of Shari'a when deciding cases may be the most alarming avenue by which Islam influences Western legal systems, but it is not the only one. With increasing regularity, Islamic practices sway the administration of courtrooms, affecting when sessions are held, who must rise, and what attire is permissible. This trend should not be overlooked. Courts that yield to Islamic norms, even in mundane matters, encourage Islamists and cast doubt on the future of equal rights and responsibilities under the law.
Ramadan. The Islamic month of fasting can require significant shuffling of schedules by devout Muslims, but are secular courts obligated to alter theirs? Some answer in the affirmative.
Muslim convert Mark Edward Wetsch is one recent beneficiary. Charged with robbing 13 Minnesota banks, he objected to a hearing set for July 20, 2012, the first day of Ramadan, and asked that it be pushed back for a month. Though Judge Jeanne Graham initially declined the request, he persisted. Ramadan means "not engaging in conflict and argument," but rather taking part in "work to reconcile differences and seek peace," according to a motion filed on his behalf. "Clearly, a contested hearing in which the government is making allegations against Mr. Wetsch and he is fighting against [them] causes him to engage in conflict and argument." Graham relented and issued the desired continuance.
The U.S. military court that will try five al-Qaeda terrorists accused of involvement in the 9/11 attacks bent to similar sensitivities this year. After turning their May 5 arraignment into a circus, the jihadists sought to postpone a hearing scheduled for the week of August 8, near the end of Ramadan. James Connell III, a government-compensated defense attorney, stressed in a filing that "the last 10 days of Ramadan commemorate the night God — Allah — revealed the Holy Quran to the Prophet Mohammed." Hence, "these 10 days are the most holy period of the Muslim calendar and are typically observed by fasting, prayer, and seclusion." Despite having previously ruled out Ramadan-related extensions, the judge, Colonel James Pohl,agreed to a delay. Connell was relieved: "It's very difficult to pay attention to sometimes intricate legal proceedings when you haven't had any sleep and you haven't had any food." (In one bright spot, Pohl rebuffed a petition not to hold hearings on Fridays, the day of communal Islamic prayers.)
Such Ramadan accommodations are not new. Four years ago, a French judge postponed a trial after a lawyer complained that "his client, a Muslim, would have been fasting for two weeks and thus, he said, be in no position to defend himself properly," in the words of the BBC. "He would be physically weakened and too tired to follow the arguments as he should." (Note that Muslims have played professional football during Ramadan fasts, so it is not obvious that ordinary Muslims are incapable of sitting in a courtroom.) A prosecutor denied that Ramadan had anything to do with the change, but others believed it to be the sole viable explanation. Fadela Amara, a Muslim then serving as urban affairs minister, decried the "knife wound" to France's separation of religion and state.
Of course, scheduling controversies are not exclusive to Islam. In 2011, the Maryland Court of Appeals ruled that a lower court had "abused its discretion" by rejecting an Orthodox Jewish plaintiff's motion to suspend a malpractice trial for two days due to Shavuot, during which his faith would preclude him from working or having work done for him. However, the decision stands out because many other U.S. federal and state courts have found no abuse of discretion by judges who did not grant similar Jewish holiday requests. If a continuance of one or two days is not automatic, then certainly the bar should be that much higher for a month-long Ramadan break — especially when its religious necessity is far less concrete than the work proscriptions characterizing strictly observed Jewish holidays.
Rising for judges. Standing when a judge enters and leaves the courtroom is a centuries-old tradition conveying respect for authority and maintaining order. Those who fail to rise may be cited for contempt, but some Muslims are challenging this point of protocol.
The most important U.S. case has centered on Amina Farah Ali, a citizen and Minnesota resident who, along with a second woman, faced federal charges of funding a Somali terrorist organization; both were convicted last autumn. After Ali did not stand at a pretrial hearing, Judge Michael Davis warned that all must do so. Unlike other Muslims present, she refused again and again for the first two days of the trial, prompting Davis to issue 20 contempt citations carrying jail time. The defendant said that because Islam's prophet had told his followers that they did not need to honor him in that way, it would be wrong of her to stand for anyone but Allah. An appeals court threw out 19 of the citations in June, determining that an ultimatum to rise "substantially burdens the free exercise of religion" for her. It instructed Davis to consider her rights under the Religious Freedom Restoration Act, which declares that religious exercise can be curbed only if the government has a compelling reason. On September 18, Davis reinstated contempt charges but then quickly "purged" them, dropping the penalties. While there are precedents for religious exemptions from the standing requirement, involving Quakers in particular, Ali's case opens the door for a very different group: American Islamists eager to thumb their noses at the secular legal system. Expect more such incidents in the U.S.
Comparable conflicts have erupted elsewhere. Several radicals later found guilty of shouting hatred at British troops during a 2009 homecoming parade would not rise at their trial, because "in Muslim countries it is a grave and cardinal sin to show respect in this way to anyone other than God himself." Although the UK is not a Muslim country — at least not yet — the judge caved, acceding to a compromise whereby they could enter the courtroom after she did. Accused terrorists are not big fans of the standing requirement either, as seen in 2007 at the outset of proceedings against nine men from Sydney, Australia, charged with plotting attacks. According to one account, the judge "was not concerned by the refusal but suggested it might not be a wise course of action when the trial started," for jurors could take a harsher view. The jihadists got their comeuppanceregardless: all eventually pleaded guilty or were convicted.
The issue has extended to lawyers as well. Mohammed Enait, a fundamentalist attorney in the Netherlands, initiated a long dispute over his resolve to stay seated on the grounds that all are equal before Allah. Mixed messages ensued. A court in 2008 approved an exception for Enait, but it was reversed. Meanwhile, the bar association reprimanded him, but an appeals tribunal voided it, referencing his "sincere and authentic religious convictions."
Clothing. Common sense dictates that face veils (niqabs) should not be welcome in a court of law, wheresecurity is critical, participants must be identified, and some judges and lawyers use facial expressions to analyze the veracity of statements. Yet none of this has slowed the push for concessions.
The good news is that most witnesses wanting to wear niqabs are turned down, as demonstrated by examples from Australia, New Zealand, Spain, the United Kingdom, and the United States. However, the temporarily uncovered women often are allowed to testify with backs to the audience or from behind screens — an accommodation in and of itself. Also of relevance, judges have been known to expel women in niqabs from public seating areas, with recent ejections in France, where face-concealing attire is now broadly restricted, and Sweden, where safety concerns were voiced at a hearing related to a plot to kill cartoonist Lars Vilks.
The bad news is that there have been leaks in the dam, with the potential for more. Three years ago, a woman became the first in Denmark to give evidence from underneath a niqab, after briefly revealing her face to a female judge for identification purposes. A 2012 decision by Italy's Higher Judicial Council clears the way for veils to be worn as long as they "constitute a legitimate exercise of the right to profess one's own religion" and meet the subjective criterion of not "causing disturbance to the regular and correct court proceedings." Indeed, judges in most jurisdictions are not bound by rigid guidelines. For instance, following Judge Paul Paruk'sdismissal of a plaintiff's case in 2006 because she would not testify with her face showing, the Michigan Supreme Court affirmed only that lower courts are to "exercise reasonable control over the appearance of parties and witnesses." A judge more in thrall to multiculturalism could have acquiesced to the niqab — just like the Danish one did.
A Canadian case that began in 2007 is among the most pivotal. At its center is a sexual assault complainant, N.S., who wished to testify against two male relatives at a preliminary inquiry while wearing her niqab. The accused men objected, insisting that they would need to see her face to evaluate her claims, and Judge Norris Weisman noted that N.S. was not veiled in her driver's license photo. Weisman determined that she must remove the niqab, but this order was quashed by the Ontario Superior Court and the Court of Appeal for Ontario. The latter extensively acknowledged the religious rights of niqab wearers in the courtroom, though it did admit that in some circumstances a defendant's right to a fair trial could require a witness to bare her face. It sent the issue back for reconsideration and urged "constructive compromises," including such possible arrangements as a female judge and an all-female courtroom staff. The Supreme Court of Canada heard testimony last December, as N.S. was still seeking an order entitling her to take the stand covered. Its eventual ruling may shake up the niqab debate in that country and beyond.
Even the jury box can be a place of controversy. In March, a UK judge took the "extraordinary" step ofprohibiting a niqab-clad woman from serving. Muslim leaders condemned it as bias, but one could argue that she actually benefited from a new shade of courtroom accommodation that rescued her from the unpleasantness of jury duty: forget about dropping the veil and just go home. Will more Muslims be inspired to arrive in niqabs, hoping to escape their own obligations?
Although most wrangling has focused on face veils, mainstream Islamic attire occasionally stirs the pot. Allowing judges to wear headscarves (hijabs), which could preempt the desired image of religious neutrality on the bench, is an issue in Europe. A state-appointed body recently recommended that Norwegian judges be permitted to don them, while the topic formerly roiled the Danish government. Lawyers also have been involved in such disputes. In 2009, an appeals panel of the Dutch bar association ruled that the same Mohammed Enait introduced above could wear a "Muslim hat." As for others with business at the courthouse, the U.S. state of Georgia has led the way in officially relaxing restrictions on headgear to accept apparel worn for religious reasons, following the 2008 arrest of a woman who refused to remove her hijab at a security checkpoint; the shift has aided Muslim men as well. Finally, no discussion would be complete without mentioning Cheryl Bormann, a Pentagon-paid civilian attorney who has covered her hair when representing one of the accused 9/11 planners. She requested that the court order modest dress for all women participating in the Gitmo legal process — "out of respect" — so pious terrorists are not compelled to look away "for fear of committing a sin under their faith."
Additional concerns. Prayer-related concessions are a source of growing discomfort. A court building in Düsseldorf, Germany, ditched crosses but installed footbaths for ritual washing; the need is said to have arisen because Muslims were cleansing their feet in toilets. The anti-military protesters who managed to remain seated at their UK trial "were given an extra 20 minutes on top of their lunch break to go to pray at a mosque," according to a Daily Mail article, and "a separate 'quiet' room [was] set aside for their regular prayer intervals." Early this year, the Associated Press noted in passing that a federal judge presiding over a sex trafficking case in Tennessee was "allowing the defendants to take scheduled Muslim prayer breaks during the proceedings." Deferential inaction also assisted the alleged 9/11 conspirators in using prayers to disrupt their arraignment.
Another jihadist testing the limits of accommodation is Nidal Malik Hasan, the U.S. Army psychiatrist facing a court-martial for murdering 13 people at Fort Hood. Contrary to Army regulations, Hasan began sporting a beard at pretrial hearings in June, sparking a protracted legal battle. "In the name of almighty Allah, I am a Muslim," Hasan explained to the judge, Colonel Gregory Gross, on August 30. "I believe that my religion requires me to wear a beard." However, prosecutors suspect that he simply intends to make it harder for witnesses to identify him. Gross ruled on September 6 that Hasan will be forcibly shaved if he does not shave himself — a decision that has been appealed, thus further delaying his trial and, with it, justice for his victims.
Last but not least, recall the infamous, decade-old British case in which a judge banned Jews and Hindus, as well as anyone married to them, from sitting on the jury that ultimately convicted Muslim cleric Abdullah el-Faisal for promoting the murder of those religions' followers. Though the bizarre move was more of an insult to Jews and Hindus, portraying them as completely emotional beings, than a sop to Islam, nobody should assume it to be the only time that a court will employ creative means to segregate Islamists from the groups they despise.
Demands for courtroom accommodations of all types show no signs of diminishing. Given their success in advancing the Islamist cause, why would they?
Unlike believers of various faiths who aspire to fulfill purely personal religious needs, Islamists view concessions as stepping stones to supremacy. Practitioners of cultural jihad understand how obtaining special privileges that appear minor on an individual basis can yield fundamental transformations in the aggregate, eating away at the bedrock principle of equality under the law and establishing that adherents of Islam are more equal than others. This phenomenon is particularly damaging when it takes place inside the courtroom, the venue in which that law is administered most visibly.
Judges must be mindful of this Islamist campaign of inches. Deference to Islam in any aspect of the legal system calls into question its impartiality as a whole, thereby sapping public confidence in the institution and making it an even more attractive target. Excessive accommodations also communicate a troubling message beyond run-of-the-mill weakness. Professor Barry Rubin's remarks on the Amina Farah Ali case put it best: "If Muslims are told that the state accepts the argument that Islamic law is recognized as superior to state law … they are being taught to be political Islamists."
Surely we have enough political Islamists dreaming of our defeat and dhimmitude as it is.
David J. Rusin is a research fellow at Islamist Watch, a project of the Middle East Forum.
September 30, 2012, Update: Middle East Forum president Daniel Pipes points out another interesting example of accommodation not included above. In 2004, a federal judge in New York allowed a Muslim, Rafil Dhafir, to avoid a strip search before entering the court for his trial. Dhafir had argued, in the words of theSyracuse Post-Standard, that "Muslims must never appear naked in front of anyone except their spouses." Read about the details here at the update for October 19, 2004.
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