11 February 2010

Crossroads: Will America One Day Consider Shari'ah Arguments as Legitimate?

America is understood as a secular law nation. Those who have and still do oppose the use of airport scanners on reasons that it violates individual rights, including image and space, argue on the basis of the First Amendment; that one's privacy shall be invaded for no certain reason, and thus the cause for such exploration is unnecessary and wrong. Those in favor, usually arguing on the stance that it is necessary for the prevention of terrorist attacks aboard planes and/or the transport of criminal and terrorist materials, including persons, also argue on the basis of the First Amendment; that it does not violate individual right, and where it does, one shall factor the need to forfeit [to a certain degree and manner] such application of rights for the time being.

*I present examples of the positive and negative arguments, which in this case happen to be of utilitarian nature; arguing what is best for the largest population. Please alter and/or add to them as you please.

Islamic law understands secular law as separate from shari'ah law, but also recognizes that a relationship does exist. What kind of relationship, you ask. I urge you to consult the various schools of thought, as they expound on varying grounds and for differing reasons. For one, the Fiqh Council of North America is now arguing that the use of airport scanners "is against the teachings of Islam..." Indeed, they go further, stating that it is also against "...natural law and all religions and cultures that stand for decency and modesty."

*Fiqh is the Arabic term for jurisprudence, which has two purposes; one, to decide on rules in relation to action, and two, to decide on circumstances in relation to action. [Secular] Jurisprudence asks two main questions; "What is law(?)" and "What ought the law be(?)."

Both Islamic law and secular law hit a crossroads at natural law, albeit their arguments are, once more, differing. The arguments steam, mainly, from the juxtaposed points of view: (a) Islamic law holds that truth which is natural and can be objective in the law is accessible through and manifested from the Divine Source, Allah; whereas, (b) secular law holds that objective truth in the law is accessible through human reason and derivative of, for example, human experience in relation to human reason. In sum, both are concerned with primary and secondary sources when issuing decisions.

*Al-Ghazali (Muslim), Moses Maimonides (Jewish), and St. Thomas Aquinas (Catholic) are well-known religious scholars who have argued based on natural law.

FCNA's statement, entitled, The Use of Full Body Scanners for Security at Airports and Other Places, states, "It is a violation of clear Islamic teachings that men or women be seen naked by other men and women." The argument is based on the following teachings:

(a) Qur'an 7:26-27: [7:26] O children of Adam, we have provided you with garments to cover your bodies, as well as for luxury. But the best garment is the garment of righteousness. These are some of GOD's signs, that they may take heed. [7:27] O children of Adam, do not let the devil dupe you as he did when he caused the eviction of your parents from Paradise, and the removal of their garments to expose their bodies. He and his tribe see you, while you do not see them. We appoint the devils as companions of those who do not believe.

(b) Qur'an 24:30-31: [24:30] Tell the believing men that they shall subdue their eyes (and not stare at the women), and to maintain their chastity. This is purer for them. GOD is fully Cognizant of everything they do. [24:31] And tell the believing women to subdue their eyes, and maintain their chastity. They shall not reveal any parts of their bodies, except that which is necessary. They shall cover their chests, and shall not relax this code in the presence of other than their husbands, their fathers, the fathers of their husbands, their sons, the sons of their husbands, their brothers, the sons of their brothers, the sons of their sisters, other women, the male servants or employees whose sexual drive has been nullified, or the children who have not reached puberty. They shall not strike their feet when they walk in order to shake and reveal certain details of their bodies. All of you shall repent to GOD, O you believers, that you may succeed.

The most pressing issue this matter presents, I think, is not the need for the de-legitimatization of Islamic law in relation to airport scanners or other issues and/or events, but the trickling effect of Shari'ah into American society and its forthcoming brace on secular law. For example, the FCNA advises that Muslims opt for pat downs over airport scanners. The scenario raises how the effect seems to be two-fold;
(1) it defines persons by their ethnic religion, i.e. Muslims, which does not define naturally established geographical boundaries because of its transcendent nature;
(2) it rests on the general and specific distinction(s) between believers and non-believers, which are defined on the basis of religious identity and its accompanying virtues/non-virtues as Muslim and non-Muslim.

On the contrary, while in the bounds of secular law established by the nation, the question in advisement ought to be, "How must Americans act when faced with such circumstances?" I am held to the same rules [and consequences if I choose otherwise] as a Muslim, or a Jew, or a Christian, or a Buddhist, etc. because we are all American.

The Shari'ah effect juxtaposes the Law of the Land of the United States of America, put forth by the hands of the Founding Fathers before us in the Constitution which rests on Divine Providence, because;
(1) it does not define persons under the rule of law as who they are in their country of citizenship, Americans, bound by geographical longitudes and latitudes;
(2) it does not recognize the distinction between the separation of Church and State, i.e. Mosque and State, and its limits.

The Council on American-Islamic Relations issued a press release supporting the FCNA statement, in which it re-iterated the need to alter airport scanner software to "produce only an outline of the body." Their follow-up statement raises, again, questions that has been visited before: What is FCNA's agenda, led in part by a member of the Executive Council, Jamal Badawi, and who are they connected to? The same will continually be asked about CAIR, especially in light of this intelligence:
I propose beginning with the following questions:
(a) How else can Shari'ah be applied in America, and subordinately;
(b) What is the next situation that will arise that will generate positive and/or negative Islamic arguments in alignment with Shari'ah?
Concerning these points, we can analyze cases which have occured in Europe, specifically England, France, and Germany. If we understand Shari'ah's application to religious and legal action and circumstance, then we can understand its implications culturally and socially.
This can provide us with insight into how to prevent jihadi infiltration in and throughout the US and to protect the foundation of fundamental legal values and traditions.



  2. I admire Dan P’s erudition, but I am increasingly concerned with the “rigor issue”.

    Once again I am coming down on fuzzy Threat Identification, TI. If we are doing TI on AQ, or any opponent, we want to select targets that are of real Value so that the enemy is well and truly damaged. I am concerned here with the possibility that this post fails at rigorous TI, and it potentially degrades legitimate legal discourse in the U.S.

    Examples of fuzzy TI are numerous here, but I will point out only two:
    1) Shari'ah Law is the most highly articulated legal code that has ever been created that is based on a religious document, the Qur'an. It is NOT the Qur’an, by the way … as the post seems to infer. Shari'ah is very precise, based on Reason by Analogy; and because Western legal personal are also trained in analogical techniques, Shari’ah will be understood by U.S. courts. But most importantly, Shari’ah is so vast and tightly reasoned that American Muslims will be quite careful in exposing it to the aggressive scrutiny given to religious assertions made in American Courts. In its many forms, the American religious community spends a lot of time in Court, as did the American Pilgrims in England before leaving for Holland. Shari’ah is probably a zero threat to American jurisprudence, but the fuzzy TI in this post is clear.
    2) Throwing Hamas into the mix here concerns me more than the fuzzy TI re Shari’ah. Hamas is indeed on the US terrorist list, but Hamas is manically scrupulous about avoiding ANY appearance as a threat to the United States. Like the IRA upon which Hamas went to school, Hamas is very sophisticated in its international outlook. It certainly threatens a U.S. ally, and this ally pressed the U.S. to get aggressive with Hamas …thus the list. But Hamas “threatening” the U.S.? No evidence.

    Precise Threat Identification, TI, is absolutely critical in S2; so we need to question any TI process that seems less than rigorous. This post could be unpacked much further, but I hope that is not necessary. I do not wish to discourage Dan P, but rather to elevate the discussion’s precision.

  3. A problem with it is simply that Sharia (or whatever variation of spelling you like) has established laws based on religious principles and not the Constitution of the United States. Constitutional law can allow judgement based on international law when it is an international matter, it can allow a citizen to be tried by another country by that country's laws, but within territory recognized as the United States of America public officials cannot agree to recognize or enforce any decision made by another court. That is not to say that private citizens cannot ask someone else (say a rabbi or an imam) to arbitrate a dispute, simply that public officials could not enforce the decision made.
    In my opinion the best solution is to write into law or craft a series of procedures and guidelines that are compatible with Sharia even if they are enforced by Constitutional law. Of course these laws, like all others, could be and probably would be subjected to challenge in the courts but I have far more faith in that strategy than in recognizing two legal systems in the U.S.

  4. I have been too indirect?

    Sharia is a trivial issue within the context of U.S. common law.

    Sharia, like any other legal concept or set of practices, can find a place in the United States only to the extent that this place strictly conforms to the Constitution of the United States.

    This will be a very small place.

  5. @MC. I should have read more closely.

  6. Mike:
    Sometimes it is not easy to pick up on tone via the Internet. If you are using "fuzzy" to mean unclear, I agree that the message can be that way. If you wish to use stronger language - perhaps you think I am overbearing or even wrong - I encourage you to use it.

    My approach is that we (i.e. al Sahwa, those who comment regularly) are a team, and I only want to arrive at the right and useful answer. We need book knowledge and experience, and since I am a young man I think we need to learn from one another. If you think it worthy to elaborate on the numerous examples of fuzzy TI to dig for the answer, I really do welcome it.

    Having said that, I want to make one main point absolutely clear: This post, and all posts from my hand, DO NOT TARGET RIGHTEOUS MUSLIMS, who are commonly called moderate. Shari'ah (Sharia) is good and true, just as Leviticus is in the Torah, and it undoubtedly has virtuous meaning and legal use in society.

    I agree that analysis can be fuzzy, because it is not similar in nature to threats like the use of IED's, PETN, direct propaganda (like that used after Hasan and Abdulmutallab), etc. I am speaking here of the connections and implications of the encroachment of Shari'ah on US secular law BY THE USE OF extremists who want an Islamic State. Often, it is an undercurrent, and I want us to know how to swim out of it when it hits us - or, for that matter, prevent it from hitting us.

    I do not intend to degrade discourse, but merely make it as precise as you; for the purpose of projecting forthcoming [cultural and societal, and as follows, economic] issues we may face.

  7. Mike and Gyre (one of two),
    I keep a CFR article in my bookmarks to remind me of the framework of Shari'ah, at least from US perspective. I think you should read it: http://www.cfr.org/publication/8034/, entitled "Islam: Governing Under Sharia.

    Islamic law uses the Qur'an and Sunnah as its main sources. They are the sayings and deeds of Allah and the Prophet. It was developed as Muslims expanded their empire (Caliphate) towards what is now territories threatened by AQIM and AQAP, and beyond.

    I understand its fine attention to human reason and experience (which is most identified in your comments, known as the liberal Hanafi School), but I think its use by these affiliates - along with the Taliban (orthodox Hanbali School) - who want an Islamic State is a threat to US interests. Of concern to me is North Africa, East Africa, and Yemen (Maliki School).

    Furthermore, a threat to a US ally, Israel, is, as far as I am concerned, a threat to the US. Transnational terrorism is directly connected to domestic terrorism.

    I included Hamas because of the connections to FCNA and CAIR, as well as MAS. I am not concluding that these organizations themselves are a front or that their employees are engaged in a conspiracy theory, but simply presenting introductory research that raises the questions (as I said) that need to continue to be asked.

    Shari'ah at the hands of terrorists, especially ones who formally state in their mission to seek the destruction of Israel and form an Islamic State, is a threat. We must consider the interconnecting relationships between Hamas and the Muslim Brotherhood, as well as the tensions between Hamas and Hezbollah.

  8. Mike and Gyre (two of two),
    One last point for discussion: interpretation and application.

    Mike, you raise an interesting perspective about religious groups spending a lot of time in court. It makes me think of how we ought to integrate Shari'ah (as it is good for society) into US secular law as Gyre advocates.

    Vriens, author of CFR article, presents the possibilities:
    (a) Dual Legal System, which I do not think Americans will go for;
    (b) Government Under God, which I think will draw arguments on "which God;"
    (c) Completely Secular, which I think can create barriers to grow for Muslim leaders because of probable "minority status."

    So, this leaves a small place like you say (Mike), and creates further boundaries to Shari'ah-secular compatibility like you say (Gyre). There is one more possible solution, one I am not in favor of myself but think will eventually be a part of the arguments; namely, to provide geographic, legal, cultural, and religious space for Muslim societies such as those begun and operated by Amish.

    From the many interviews (and friendships) I have had with American-Muslims, I do not think it speaks to their character, passions and/or intentions. American-Muslims are just as much American as I. Returning to my original thoughts, and our original discussion, the question remains whether extreme jihadi terrorists are even Muslim. One more use Shari'ah has is to clarify and classify takfiris in a "counter narrative" coalition campaign.

  9. Well, to move on:

    1. I simply do not think the original post is rigorous in arguing its most incendiary point, "the trickling effect of Shari'ah into American society"

    2. Bringing Hamas in starts to bring in Israeli politics, and I do not think that this supports al Sahwa's objective of exploring advanced intelligence techniques. But Dan even goes further in his Comment, by asserting his belief that an attack on Israel is an attack on the U.S. This "belief" is directly counter to U.S. foreign policy which has been to support Israel but not to allow it NATO-like mutual defense status.

  10. edit error above... not "attack". substitute "threat"

  11. @DP One of my colleagues pointed out to me that I might serve the discussion more expertly by explaining what is necessary to make the RIGOROUS argument that there is a "trickling effect".


    1 - On what Entity(s) is the effect operating?

    2 - Explain what changes in the Entity(s) you observe.

    3 - Explain the process(es) that are causing these changes.

    4 - Explain the positive or negative Value changes associated with these changes.

    5 - What is the probability that all of the above is known to be true?

    6 - Finally, cite the time line over which the Effect is operating.

    When we teach this kind of stuff, we do not recommend Natural Language as the analytical medium, but this is probably what is in your present analytical tool kit... so go ahead and use it.

    Sorry for dragging this out.

  12. Mike,
    I share your pursuit of precision, and agree that the questions posed will formulate a more rigorous argument to establish the trickling effect.

    It requires further research, as I only sought out (originally) to pose perspective of the connections associated with reports and research. If done efficiently and effectively, it may result in a whitepaper. I am interested, as you are, in what has been in order to establish via empirical evidence either what is and/or what is coming.

    The "dragout" is necessary to do it right. I hope to put our heads together down the line.

    Please allow me, in light of this dialogue, to clarify my stance on Hamas and US-Israel relations. I made my statement from a US standpoint, with US interests in mind. The establishment of states in that region holds political and thus economic implications of the change of influence that will occur. Recognizing an organization as "legitimate" who seeks the destruction of the zionist being seems to be a threat to the best interests of the US because of the implications it holds for future strategic negotiations of political and economic matters. How will this effect transnational terrorism, which is connected to domestic terrorism?

    The establishment of a joint peace is sought above all else to preserve all interests involved. But I have not offered a conclusion on this matter: As I originally said, and followed with in my subordinate comments, the questions need to continue to be asked in light of the connections between Hamas and FCNA and CAIR (as documented), and further questions need to be raised given the relations between Hamas and Iran.

    Please read analysis on the Israel-Hamas War, and note the connection with Zawahiri and Osama Bin Laden's messages:

  13. I can provide some further insights, but we are now approaching very deep waters.

    Intelligence organizations around the world are battling the "Complexity Problem" presented by the new knowledge environment combined with rapid planetary integration, i.e. the real world is complexifying at a growing rate so that knowledge in-hand ages evermore rapidly.

    Give me a day or two to think through some basic ideas as they relate to this particular post.

  14. The primary problem with the post is that it does not make a case for a strong “effect”, and even seems to mislead. It is misleading for example, when it states that the “effect” is “two-fold” and then discusses CLASSES of believers. This same set of “class” arguments could be rightfully raised if some Lubavitch Jews go to court and argue over whether a Chabad Menorah should be displayed in a public park… so now there is a Lubavitch Effect?? Who cares? However in the body scanner case, NO ONE is even in court, yet you use the phrase “now arguing” in the third paragraph… implying that a legal dispute is underway.

    More importantly to the integrity and veracity of the post, and thus to the reputation of the Blog and the writer, are the tenuous connections drawn between CAIR and FCNA. So CAIR issues a press release and you quickly connect CAIR’s charity work with Hamas to FCNA. This is pretty weak stuff. What if you could show that CAIR is hiring lawyers to get rid of Body Scanners? Now that would be strong stuff.

    I suggest you read the first Sherlock Holmes story… seriously! Learn about intellectual rigor. In that story Dr. Watson states his shock when he learns that Holmes does not know that the Earth circles the Sun, yet Holmes possesses the largest collection of “crushed cigarette butts” in England. The point is that Holmes is RUTHLESS in his rejection of Junk Knowledge. Holmes is interested in the “case” and only the case… read “analysis”. Holmes would love the six steps that I gave you. Don’t feel badly Dan. Your post is no less rigorous than a lot of stuff that passes for “analysis” at elite intel agencies.

  15. Finally: I have seen many analyses where the analyst, who is using his Concept Mapping software many hours each day, casually explains the many "connections" that exist in this or that enemy or ally system. These mapping software packages are analytically dangerous if misused.

    Analysis should focus on Causal Connections. Simply showing Connections can be a real waste of time.

  16. The question has been posed, WILL America one day consider such arguments? The statement concerning the effect supports a claim of a probable forthcoming scenario:
    (a) secular law identifies and holds persons to account as citizens of the sovereign nation; whereas,
    (b) shari'a identifies and holds persons to account as Muslims, including boundaries for non-Muslims as well.

    The classification within each framework of law is clearly different. As such, jurisprudence follows respectively. The FCNA statement (Feb. 10) is quoted as saying that the use of body scanners "violates Islamic teaching..." By definition, a fatwa is an Islamic religious ruling, a scholarly opinion on a matter of Islamic law; therefore, it seems they are arguing based on their traditions, virtues, and values.

    (*Aside, it is another point of discussion as to whether or not the statement is binding. I raise it simply because some Muslim sects (i.e. Sunni) may not accept based on either the issue or scholar.)

    Of course, Muslims are also citizens of the sovereign nation, America; but the post is not concerned with righteous Muslims who adhere to the law. Accordingly, the First Amendment rights of public space are rightly shared by all (i.e. Christmas tree just as much as a Jewish Menorah; the law recognizes also atheist statements).

    I am focused on the trickle of influence due to the fact that it is being witnessed in other regions, such as Europe (England, France, Germany) - which is why my subordinate comments highlighted the possible threat to the homeland, IF extremists co-opt the process.

    There are Shari'a courts operating in England now, but I am unsure what system will work in America (if considered). Thus, I stated;
    "Vriens, author of CFR article, presents the possibilities:
    (a) Dual Legal System, which I do not think Americans will go for;
    (b) Government Under God, which I think will draw arguments on "which God;"
    (c) Completely Secular, which I think can create barriers to grow for Muslim leaders because of probable "minority status."

    So, this leaves a small place like you say (Mike), and creates further boundaries to Shari'ah-secular compatibility like you say (Gyre). There is one more possible solution, one I am not in favor of myself but think will eventually be a part of the arguments; namely, to provide geographic, legal, cultural, and religious space for Muslim societies such as those begun and operated by Amish."

  17. Pointing to the connection sought only to "raise, AGAIN, questions which have been visited before." Here is another example:

    I am not advocating a conclusion based on the information, but a further examination. Moreover, should we not consider these historical connections as part of the process(?):
    (1) Muslim Brotherhood;
    (2) Yousef al-Qaradhawi;
    (3) European Council for Fatwa and Research;
    (4) Sheikh Faysal (Faisal) Mawlawi.

    There have been connections, also, to Stockholm, which happens to be experiencing a "little Mogadishu" (Al Shabaab):
    (a) http://al-sahwa.blogspot.com/2010/02/terrorists-dream-about-islamic-state-al.html;
    (b) http://www.euro-islam.info/2010/01/12/al-shabaab-recruiting-in-sweden-swedish/.

    For one, I take issue with the title of the above video, "Radical Islam Taking Over Europe and West." When formulating a counter-narrative strategy, it is one question whether or not extremists are even Muslim:
    (a) http://al-sahwa.blogspot.com/2010/02/possible-home-grown-radicalization-ties.html.

  18. Lastly, examining the connections [and their implications] provides avenues for establishing causal relationship - perhaps leading to causal action. It requires more worthwhile time of hard work, with the [hope] of possibility of it leading to a dead-end. Nonetheless, a dead-end would be a positive.

    As a boy, my father placed a child window decal in my room, known as a "Tot Finder." It served as an indicator to notify responders of location, and implies as we hold dear that children are first and foremost. The post, in raising issues and questions attached, serves to notify professionals and citizens of indications, signs, cursors relating to the co-opted use of Shari'a.

    Yes, the decal does not prevent the fire and its spread, but it enables professionals to protect the child from [further] harm. The duty to prevent is a proactive method of protecting; e.g. Aristotle's infamous discussion on the cargo ship in "Nicomachean Ethics."

    The focus is on nothing other than (and no one other than) jihadi infiltration in the US homeland. Therefore, matters abroad concern the US because (as I have said repeatedly) transnational terrorism is linked to domestic terrorism:
    (1) Minnesota with Somalia,
    (2) Virginia with Pakistan,
    (3) Queens and Colorado with al-Qaeda,
    (4) Arkansas and Yemen,
    (5) Fort Hood lone-wolf and AQAP,
    (6) Abdulmutallab and AQAP,

  19. Readers:
    Please also see this link from NEFA on the connection between transnational and domestic terrorism:

  20. Dan, I just do not think you can do a Post-Out on this one. You have shown substantial domain expertise, but, as most Intel Analysts will tell you, Domain Knowledge is not the major Kill Zone in today's Intel battle. There are fundamental Analytical defects in the original post that "knowledge additions via Comment" won't cure. (although it might be interesting to try to reason by analogy that what is happening in the UK will happen here... not suggesting this though.)

    I hope to have some time tomorrow to show how you could have, and should have, done a "Negative Evidence" process on this very important post. Then I will address the Meta Structure of the post.

    This is not a good week for me.

  21. http://online.wsj.com/article/SB20001424052748704398804575071173912460414.html.

  22. Paris has begun to use full-body scanners; http://www.breitbart.com/article.php?id=D9E1CE1O0&show_article=1.