Sixth public hearing of the National Commission on Terrorist Attacks Upon the United States

Statement of Khaled Medhat Abou El Fadl to the National Commission on Terrorist Attacks Upon The United States
December 8, 2003

Some American Muslims come to the United States in pursuit of the economic dream; they aspire to fulfill the sense of dignity that comes from a higher standard of living. However, as with all of the immigrant groups, many American Muslims bring with them dreams of liberty and justice. Many immigrant Muslims come to the United States with elevated expectations of liberty and justice, and for them, our country is the symbolic beacon of freedom in the world. We must also recognize that other than immigrant Muslims, there is an ever-increasing population of native-born American Muslim citizens. For these Americans, the United States-with its values of liberty and justice-is the only country they know. For this sizable portion of the population, the moral and political values of the United States are not a matter of elective choice-they are an absolute imperative.

Muslims have succeeded in becoming a significant part of the fabric of America, and they contribute to the progress and development of this country at every level of society and industry-from medicine, engineering, and the sciences to business and law and beyond. Despite popular perception, terrorists and fanatics are a small minority of the Muslims in the United States. These extremist fanatics rarely emerge from the native American-Muslim context. In most cases, they do not grow out of the natural processes of native American-Muslim communities. Rather, in most cases, they are outsiders that exist on the margins of American-Muslim society. They cling to the margins of American-Muslim societies until they create the opportunity for terrorism. Terrorism, however, endangers the life and well being of every American Muslim. Statistically, after the attacks of 9/11, Muslim and Arab terrorism was responsible for 2% of the sum total of terrorist incidents taking place in the United States. Nevertheless, the disastrous consequences of terrorism fall disproportionately upon American Muslims and Arabs. Terrorism and its aftermath have the effect of dismantling and gradually obliterating American Muslim and Arab dreams of financial and political security, leave alone dreams of finding dignity and liberty in the United States. The primary effect of the frustration of these expectations and dreams is the socio-political alienation of our Muslim and Arab citizenry.

An important part of winning the war against terrorism is actively resisting and guarding against the alienation of any part of our citizenry, and we are the stronger for it. It is elementary that the more united our stand against terrorism, the more effective we will be. When comes to this protracted war against terrorism, we can ill afford even the appearance that the United States has turned against a segment of its own citizenry. It is worth emphasizing that the Muslim and Arab citizens of the United States are an extremely valuable asset in this war, and that while terrorists desperately seek to exploit the most alienated elements of this population in furtherance of their criminal conduct, we, on the other hand, must make every effort to draft and mobilize this population by consistently communicating to this segment of American society that they are integral part of what defines us as a nation and people.

At a broader level, it is of crucial significance that we remind ourselves that our practice of democracy in the United States often has a defining impact upon the fate of democracy around the world. What we do here in the United States in terms of our democratic practices goes to the credibility of democracy at the international level. It is empirically observable that our own domestic laws and policies do promote or hurt the cause of democracy by demonstrating the willingness of the world's largest democracy to live by democratic principle even when seriously challenged. If our conduct appears to betray the principles of democracy, dictatorships jump on this to impeach the credibility of democratic systems, and justify despotism. I have observed this unfold in international media venues. Typically, apologists for dictatorships produce a list of alleged civil rights abuses that took place in the United States, and then use this to argue that American demands for democracy around the world and especially in the Middle East are just hypocritical and politically motivated posturing.

Assessing the state of democratic practice towards Muslims after 9/11, there are several points of major concern:

1. Summary Detentions: There is a widespread perception in the American Muslim community that many Muslims who were lawful permanent residents or even U.S. citizens were detained preemptively in order to investigate vague and unspecified suspicions against them. Depending on their immigration status, these individuals were detained as purported material witnesses, for technical immigration violations (such as the failure to notify INS of a change of address), or on some other security grounds. The widespread perception is that these individuals came to the attention of the Department of Justice because of their social and political activism on behalf of the Muslim community, and that they were detained on vague and non-specific suspicions or as a part of a fishing expedition for possible leads on matters related to National Security. A sizeable number of these individuals were released from custody without ever being charged with unlawful conduct. On the issue of summary detentions, it is important to distinguish between the detaining of aliens for immigration law violations, such as being out of status or for unauthorized employment or for visa overstays; and the detaining of lawful permanent residents, for minor immigration law violations; and the detaining of U.S. citizens for purportedly being material witnesses or some other ill-defined security concern.

   In my experience I have found that American Muslims appreciate the need to enforce immigration laws and, in fact, the need to be serious about such enforcement. A very large number of Muslims have expressed their belief that consistent and systematic enforcement of our immigration laws creates a sense of predictability, reliability, and even security. Most Muslims, however, were opposed to the selective and perhaps politically motivated enforcement of our laws. This, they felt, helped undermine the credibility and predictability of the system. The overwhelming majority of Muslims that I either spoke with or helped represent in legal practice did not contest the need to detain and deport people who are in this country unlawfully, or people who have violated their visa status by seeking unauthorized employment, for instance. What did create considerable dissatisfaction in the Muslim community, however, is the detaining of lawful and law-abiding citizens and permanent residents on the basis of vague and non-specific suspicions. When it comes to dealing with permanent residents and U.S. citizens, I believe that it is erroneous to adopt the attitude of: "when in doubt, detain first, and then figure out the grounds later." In the case of detentions that exceed a very limited span of time, it is imperative that there be a probable cause hearing, and that even with such a hearing, if charges are not brought, it is imperative that the detainee be released within a very limited span of time. Due to the unique challenges that confront us in the war against terrorism, it might be necessary to consider creative, but constitutionally sound, options that would not have been possible in the past. For instance, perhaps in exceptional cases involving serious national security threats, where the government is unable to bring formal charges but the government can demonstrate a continuing security danger-perhaps under these exceptional circumstances instead of continuing detention, the person would be placed under a special reporting and monitoring system. The point is to avoid the destructive effects of prolonged preemptive detentions, while serving the national security interests of the country.

2. Secret Evidence: There seems to be an urgent need to find a better way of protecting the national security interests of the country by not having sensitive evidence become public, but at the same time, subjecting secret evidence to enough judicial scrutiny to insure its credibility and to prevent innocent lives from being destroyed. There is a widespread perception in the Muslim community that in a significant number of cases the use of secret evidence proved to be unreliable and unjust. My own experience in legal practice is consistent with this widespread view. In a several cases, detainees were not able to challenge the accuracy to the secret evidence used against them, and therefore, effectively were denied the opportunity to vigorously defend themselves. Detainees were provided a cryptic summary of the evidence available against them only to find later that the source of the evidence, such as a business competitor or vindictive ex-spouse, was unreliable or that the evidence was simply inaccurate. For instance, in some cases the name of the organization that the detainee allegedly belonged to was simply erroneous (for example, al-Jama'a al-Islamiyya instead of al-Jama'at al-Islamiyya). Part of the difficulty with the use of secret evidence is that this practice damages the credibility of the legal system by feeding into conspiracy theories and fears about religiously or ethnically based persecution. It would seem that the reliance on secret evidence, especially when permanent residents are involved, should be the exception and not the rule.

3. Moving of Detainees: There are a large number of reports about the purported practice of frequently moving detainees from one detention center to another. This alleged practice effectively cuts detainees off from their families and support groups in their local communities. In addition, it seriously interferes with access of attorneys to their clients, and with the ability of the detainee to communicate with his or her lawyer, as well as the detainees' ability to receive consistent and reliable legal representation. In my own experience, I have observed detainees shuttled around different detention centers in the United States often without informing either the attorney or the detainees' families. This practice is quite devastating, especially in the case of permanent residents, who usually had become rooted in a particular community. The frequent moving of detainees from one place to another does have the effect of contributing to suspicions of persecution, and does harm the credibility of the justice system. It contributes to a pervasive sense in the Muslim community that the government is trying to hide something, and is primarily interested in winning its case rather than in finding the truth and achieving justice.

4. Refoulement of Detainees and Proxy Torture: Most alarming are some reports mentioned in the international and national press, as well as widely circulating in the Muslim community that the government deports individuals to countries where they are highly likely to be tortured. Some of the reports allege that the government refouled individuals to countries with abysmal human rights records as means of extracting confessions from these individuals or as a means of obtaining information. According to these reports, the U.S. would hand over a detainee to the torturing country, and after being tortured for information, the individual would be extradited to U.S. custody once again. If these incidents actually took place they would constitute a violation of our treaty obligations under the Refugee Convention and the Convention for the Protection from Torture, both of which the United States has signed and ratified. Other than the horrendous impact of torture upon its victims, this purported practice deals a severe blow to the efforts of the United States to promote democracy in the world because it makes the U.S. a participant in the offenses of despotism. I have worked on one case involving a Canadian citizen who was refouled by the U.S. to Syria where he was severely tortured before he was deported from Syria to Canada. Other than this case, I do not have direct knowledge as to the veracity of the purported so-called proxy torture. As noted earlier, allegations of proxy torture abound in the Muslim community. To my mind, there is no doubt that this if this practice does exist it is immoral and should be strictly outlawed.

5. Surveillance and Monitoring: There have been reports in the Muslim community that the FBI regularly conducts surveillance against all mosques and Islamic centers in the U.S. It is believed that the FISA courts liberally grant the Federal government the right to monitor all Islamic institutions. However, even if true, I believe that the majority of Muslims in the U.S. accept these surveillance policies as a necessary cost of the war against terrorism. Some community leaders, however, protested these policies as intrusive violations of the right to privacy, and that aggressive surveillance policies are prone to be exploited in an abusive fashion. On the other hand, other leaders argued that widespread surveillance protects the Muslim community from speculative suspicions unfairly directed at Muslims and that such surveillance assures the public that Muslims in the U.S. have nothing to hide. Federal surveillance helps Muslim centers and organizations guard against becoming infiltrated by terrorists and acts as a deterrent against criminal elements.

9/11 and its aftermath challenged our society and in fact the whole world in profound and fundamental ways. It bears emphasis, however, that the war with terrorism is a war of propaganda. Terrorists seek to contaminate the world with a sense of cynicism about all moral and democratic values. Terrorists, through acts of violence and provocation, seek to convince the world that democracies are not morally superior to the totalitarian and despotic systems that terrorists believe in and espouse. In the war against terrorism, we need to preserve the moral integrity and the credibility of democracies, and we also need to insure the loyalty and trust of all the segments that constitute the rich fabric of our pluralist society. Addressing the concerns raised above will go a long way towards maintaining unity and liberty for all and towards winning the war against terrorism.

Professor El Fadl was born in Kuwait and raised in Egypt and Kuwait. He was awarded a Ph.D. from Princeton University, Department of Near Eastern Studies; a Masters Degree in Islamic Law, also from Princeton University; a J.D. from the University of Pennsylvania Law School; and a B.A. in Political Science from Yale University. He is currently a Distinguished Fellow in Islamic Law, UCLA School of Law, where he has taught courses on Islamic and Middle Eastern Law, Islamic Law and Human Rights, Investment Law in the Arab World, and Immigration Law. Professor El Fadl is currently a Visiting Professor at Yale Law School teaching National Security Law.

Some of Professor El Fadl's published books include: Jihad in Islam, Islam and the Challenge of Democracy; Rebellion and Violence in Islamic Law; The Place of Tolerance in Islam. He has published many articles including: "9/11 and the Muslim Transformation;" "The Human Rights Commitment in Modern Islam;" "Human Rights Must Include Tolerance;" "Moderate Muslims Under Siege."

Professor El Fadl has served as a consultant to the Texas Department of Criminal Justice, Austin, Texas in cases involving Muslim prison inmates. He is regularly retained by a large number of law firms, both pro bono and as a paid expert consultant, on a wide range of cases involving Islamic law, political asylum law, and Middle Eastern commercial, criminal and family law. He has served as a legal consultant and expert witness for the U.S. Attorney's Office, Eastern District of Michigan in the first terrorism case to be prosecuted post 9/11 against an Al-Qaeda cell in Detroit, Michigan, and for the Office of the Attorney General, State of Florida in a case involving a Muslim woman seeking a driver's license in Florida while wearing a full face veil.

Professor El Fadl was appointed by President Bush to serve a two-year term on the United States Commission on International Religious Freedom.