Pacific News Service – December 1, 2005
Islam Put on Trial in Terrorism Cases, U.S. Muslims Say
By Paolo Pontoniere
Editor's Note: A growing number of legal experts and Muslim civil rights advocates say that U.S. prosecutors are using jurors' ignorance of Islam as a way to get convictions in terrorism cases.
SAN FRANCISCO--Charges recently filed against Jose Padilla have once again put the issue of American-born Muslims being prosecuted as terrorists on the judicial radar screen. But five months ago, another U.S.-born Muslim was found guilty of promoting terrorism in the United States.
On July 13 in Alexandria, Va., Ali al-Timimi, an oncologist and U.S.-born Islamic scholar from Falls Church, was sentenced to jail for life plus 70 years without possibility of parole for having solicited others to levy war against the United States and for inducing others to use firearms in violation of federal law. The firearms conviction required a mandatory life sentence without possibility of parole.
Al-Timimi, who is now waiting for his appeal to be heard and is serving his sentence in isolation at the Alexandria City Detention Center, was convicted by a jury that included no Muslims and whose members had no prior knowledge or understanding of Islamic tenets. Jurors were unfamiliar with the full meaning of Islamic terms, such as the word "jihad," used repeatedly by the prosecution during the trial to underline al-Timimi's religious zeal.
"For a growing number of legal scholars and Islamic community leaders concerned about American courts discriminating against Muslims, al-Timimi's case is a harbinger of how Muslim believers are becoming the target of a new emerging kind of civil rights discrimination," says Jess Ghannam, former president of the Arab-American Anti-Defamation League in San Francisco.
This kind of discrimination, Ghannam says, also occurred in the case of Sami Al-Arian, a Florida professor indicted in Tampa, along with three codefendants, on 51 counts of conspiring to finance the Palestinian group Islamic Jihad. Ghannam says the trial, now in the deliberation phase, is based mostly on circumstantial evidence. As with al-Timimi, he says, the defendants' religious beliefs have become a matter of debate.
[On Dec. 6, a jury in Tampa, Florida, acquitted Dr. Sami Al-Arian of eight charges, including conspiring to maim and murder people overseas. Read more)
Julie Howe, a New York-based jury consultant who's been active with the Death Penalty Project, agrees with Ghannam. "I think that there's a religious prejudice out there against Muslims," Howe said in a recent interview with a legal journal. "Some jurors are inclined to believe that Muslims are predisposed to violence."
A frequent preacher at the Dar Al-Arqam mosque and a Salafist whose lectures and writings have appeared in scholarly publications, al-Timimi has an international following, mostly in very observant Islamic circles. He was on the advisory board of the Assirat Al-Mustaqueem, an international Arabic magazine published in Pittsburgh between 1981 and 2000. But he insists he has never armed, financed or abetted any terrorist group or their actions, either in the United States or abroad, something the prosecution did not contest.
According to the prosecution, during a secret meeting held on Sept. 16, 2001, al-Timimi urged a group of young Muslims from Washington D.C., upon whom he had great influence, to leave the country to go to take up arms to fight on the side of the Taliban against the United States. The youths eventually practiced shooting with paintball guns in 2000 and 2001 to prepare for an impeding global jihad. Eleven members of the group were arrested in 2003 in connection with these episodes. Six entered guilty pleas to weapons and explosive charges, three were convicted of conspiring to aid the Taliban and two were acquitted. It was some of those who plea-bargained with the U.S. Attorney's Office who testified against al-Timimi.
Although some of the youths who ended up in Pakistan's training camps said that al-Timimi's urging had no bearing on their decision to train abroad, the prosecution cautioned the jury against believing their denials. Since al-Timimi had taught them that it would be right for a devout Muslim to lie to kefirs (non-believers), the prosecution argued, the witnesses would have had no qualms about lying to the jurors.
"Clearly the government pushed the envelope seeking to set a precedent," says Edward MacMahon, al-Timimi's lawyer, based in Virginia. According to MacMahon, al-Timimi's conviction on the ground of his religious beliefs sets the stage to use the same tactic to obtain guilty verdicts in other cases involving Muslims charged with terrorism.
MacMahon motioned for a reversal of al-Timimi's conviction based on prosecutorial misconduct and the prejudicial impact of statements against Islamic religion. Gordon Kromberg, assistant U.S. Attorney for the Eastern District of Virginia, maintained that Timimi's personal religious views were "directly relevant" to the case.
"Such an argument may be unfairly prejudicial in a case involving a typical bank robbery, drug trafficking, or mail fraud," Kromberg wrote in a statement given to the press. "Timimi was charged with much different offenses. The government's arguments were directly relevant to his prosecution and fairly made."
According to Marjorie Fargo, president and senior litigation consultant of Jury Service Inc., a jury consultant firm based near Washington, D.C., today in the United States the term "jihad" is associated with violence and terrorism.
"You can wage a jihad against anything," says Fargo, commenting on al-Timimi's conviction. "And because there was a lack of understanding on that, it could have possibly affected juror's interpretation of the evidence."
Civil rights advocate and Georgetown law professor David Cole believes that referring to a defendant's religious beliefs should be barred during a trial because it may compromise the fairness of the proceedings.
"Since Sept. 11, Islam has become a demon, and the sins of al-Qaeda have spread to the Muslim population at large," Cole says.
Detroit civil rights lawyer Shereef Akeel agrees. "Many jurors' first experience in learning about Islam is through the prosecutor," Akeel told the Legal Times. "They don't have any reference point to assess the prosecutor's credibility."
Akeel believes this was the case in a 2003 terrorism trial involving 4 Detroit-area defendants. In order to obtain a guilty verdict the prosecutor peppered his statements with the phrase "economic jihad."
Jeff Adachi, San Francisco's public defender, has also noticed a growing discriminatory attitude toward Muslims in the U.S. legal system. "It is becoming very difficult separating civil rights discriminations from racial, national and religious discrimination, especially when the defendant is a Muslim," Adachi says.
In response to this challenge Adachi's office has recently appointed an Islamic public defender to assist Muslim defendants.
Developing in-house Islamic legal expertise has become the goal of a growing number of Islamic legal scholars.
The National Association of Muslim Lawyers, which was incorporated in 2000, recently hired Farhana Khera, a former counsel to U.S. Senator Russ Feingold, as its first executive director, and launched a community outreach program. The National Muslim Law Students Association is encouraging many of its members to enter civil rights law.
"Muslim lawyers and advocacy groups can really give a voice to our community," says Asifa Quairishi, founder of NAML and professor of Islamic and constitutional law at the University of Wisconsin Law School.
Today, the Muslim Scholarship Fund offers grants to Muslim students studying law, while the Muslim Legal Defense and Education Fund helps Muslims facing prosecution.