ISLAM: A subversive entity?

Can We Ban Islam? - Legal Guidelines for the Criminalization of Islam in the United States

Posted: 03 May 2009 07:11 PM PDT BY SULTAN

Geert Wilders' recent call at a Palm Beach synagogue to ban Islam hasstirred up all sorts of controversy, with more "moderate" blogs speaking out in opposition to it. So let's take a closer look at the issueof banning Islam.

Banning Islam is more difficult in the United States than in Europe, because ofthe First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

On the surface of it this is a fairly straight forward formulation barring the legislative branch from taking any action to create a state religion or barring the practice of any religion.

The founders were English citizens and well aware of the way in which religion could stoke political violence. In the late 18th century, Cromwell was not ancient history, neither were the Covenanters or the Gunpowder Plot. While they did not anticipate like the rise of an Islamic insurgency in America, they understood quite well that religion and violence could and would intersect.

That of course was one of the reasons for barring a State Church, toavoid giving the government control over religion, a situation that had resulted in much of the religious violence in England. By giving religion independence, but not political power, the First Amendment sought to avoid a repeat of the same ugliness that had marked centuries of wars in Europe.

That of course is a key point. The separation of church and state was
meant to protect the integrity of both, and avoid power struggles
between religious groups. There was to be no state religion, the
government could not leverage religious authority and religious
factions could not begin civil wars in a struggle to gain power or
autonomy. For the most part it worked.

Until now the only real acid test for this approach involved the Mormon
Church, an ugly history on both sides that has mostly been buried under
the weight of time. More recently Scientology flared up as a cult
turned church that demanded its own autonomy and did its best to make
war on the government and its critics.

And then there is Islam. The first problem with using the First
Amendment in defense of Islam-- is that its goal is to violate the
First Amendment. Islam's widely stated goal is to become a State
Religion, around the world and in America as well.

Sharia has been making steady advances in Africa and parts of Asia.
Majorities of Muslims in the UK have said that they want Sharia law,
and leading British figures such as the Archbishop of Canterbury have
supported the introduction of Islamic law into the British legal
system. Domestic advocates for Sharia, such as Noah Feldman, are
pushing for the normalization of Sharia law in the United States as
well.

This would in effect turn Islam into an Established Religion in the United
States, itself a violation of the First Amendment.

Furthermore Islam abridges the remaining portions of the First
Amendment, which protect Freedom of Speech and the Press. Islam rejects
both of these. To protect Islamic rights therefore means depriving
non-Muslims of freedom of religion--- and both Muslims and non-Muslims
of freedom of speech and the press.

These are not hypothetical scenarios, the Mohammed cartoon controversy
has demonstrated exactly how this will work. So did the persecution of
Salman Rushdie. To accept Islam is to reject freedom of speech and
religion... in the same way that accepting Communism meant rejecting
freedom of speech and religion. Islam and the Constitution of the
United States are incompatible in the same way that Communism and the
Constitution are incompatible.

The Founders sought to protect religious freedoms, at no point in time
did they seek to protect religious terrorism. And Supreme Courts
throughout American history have found that the First Amendment does
not provide license for significant lawbreaking. That is why polygamy
is not legal in the United States.

Having to choose between religious freedom and the rights and dignity
of women and children-- America correctly chose the latter.

In 1785, James Madison, Father of the Constitution, wrote, "We
hold it for a fundamental and undeniable truth that religion or the
duty which we owe our Creator and the manner of discharging it can be
directed only by reason and conviction, not by force or violence."

Yet Islamic history and recent events in Eurabia demonstrate that Islam
does indeed spread by force and violence. Upholding the right of Islam
to force its statues and views on Americans, violates Madison's
fundamental and undeniable truth.

In 1802, Jefferson wrote his explanation for the First Amendment to the Danbury
Baptist Association;

"Believing with you that religion is a matter which lies
solely between man and his God, and that he owes account to none other
for his faith or his worship, that the legitimate powers of government
reach actions only, and not opinions, I contemplate with sovereign
reverence that act of the whole American people which declared that the
legislature should "make no law respecting an establishment of
religion, or prohibiting the free exercise thereof," thus building a
wall of separation between Church and State."

There is a key phrase in this statement, which is that the legitimate
powers of government reach actions only, and not opinions. This
statement was used as a legal principle by the Supreme Court in 1878 in
the case of Reynolds vs the United States. Reynolds had been charged
with bigamy and claimed that his faith required him to engage in
polygamy.

The Court found that while Reynolds had the right to believe that
polygamy was his duty, he did not have the right to practice it-- thus
upholding Jefferson's distinction between action and belief.

As the court put it;

In our opinion, the statute immediately under consideration is within
the legislative power of Congress. It is constitutional and valid as
prescribing a rule of action for all those residing in the Territories,
and in places over which the United States have exclusive control. This
being so, the only question which remains is, whether those who make
polygamy a part of their religion are excepted from the operation of
the statute. If they are, then those who do not make polygamy a part of
their religious belief may be found guilty and punished, while those
who do, must be acquitted and go free. This would be introducing a new
element into criminal law.

Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifices were a necessary
part of religious worship, would it be seriously contended that the
civil government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was her duty to burn
herself upon the funeral pile of her dead husband, would it be beyond
the power of the civil government to prevent her carrying her belief
into practice?

So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? [98 U.S. 145, 167] To permit this
would be to make the professed doctrines of religious belief superior
to the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under such
circumstances.

The outcome then was that we could not have a situation in which crimes
could be committed in the name of religion and protected by the First
Amendment. Belief could not be criminalized, but practice could be.

But what does that actually mean and how exactly do we distinguish
between action and practice? Does it merely mean that it is legal to
believe in seizing America in the name of Islam, but not to practice it.

We can begin by pointing out that any number of Islamic practices which
violate American law or promote an unhealthy social consequence can be
banned, for much the same reason that polygamy was. In Reynolds vs the
United States, the Court upheld the right of the Utah legislature to
brand the spread of polygamy as a threat to innocent women and
children, that had to be arrested through strong measures. The spread
of Islam's practices can be seen in the same way.

France has treated the Hijab in a similar way. The United States can
too, if it finds any abuse or violence associated with its enforcement
or use. Honor killings over the Hijab demonstrate that this is the
case. State Legislatures can then move to ban the Hijab.

Thus while we cannot charge someone with believing in Islam, we can
stamp out many Islamic practices that are dangerous or abusive. The
First Amendment does not protect religious practices that are illegal
or made illegal, it protects only the beliefs themselves.

And we can go much further at an organizational level, based on the Sedition
Act of 1918 and the 1954 Communist Control Act , which give us some guidelines
for cracking down on Islam.

Sec. 2. The Congress hereby finds and declares that the
Communist Party of the United States, although purportedly a political
party, is in fact an instrumentality of a conspiracy to overthrow the
Government of the United States. It constitutes an authoritarian
dictatorship within a republic, demanding for itself the rights and
privileges accorded to political parties, but denying to all others the
liberties guaranteed by the Constitution. Unlike political parties,
which evolve their policies and programs through public means, by the
reconciliation of a wide variety of individual views, and submit those
policies and programs to the electorate at large for approval or
disapproval, the policies and programs of the Communist Party are
secretly prescribed for it by the foreign leaders of the world
Communist movement. Its members have no part in determining its goals,
and are not permitted to voice dissent to party objectives

This applies to Islam just as much as it applies to Communism. And this
preamble was part of a passage demonstrating the fundamental
distinction between Communism and legitimate political parties.

The assumption of the Communist Control Act was that the First
Amendment did not apply to the Communist party or to Communist
controlled parties... because they did not fit the democratic template
of the First Amendment. As such the Communist party was not a
legitimate party, but an overseas directed conspiracy to overthrow the
United States and replace it with a Communist system.

Not only can this same argument also apply to Islamic organizations
such as CAIR, but Islam can be distinguished from other religions on
similar grounds. The following phrase from the original document
represents the key point here;

It constitutes an authoritarian dictatorship within a
republic, demanding for itself the rights and privileges accorded to
political parties, but denying to all others the liberties guaranteed
by the Constitution.

And that is the core of the problem. While we cannot criminalize
individual beliefs alone, we can criminalize organizations dedicated to
overthrowing the United States and replacing it with a totalitarian
system. An organization is not merely "belief", it also represents an
attempt to put those beliefs into practice.

The Internal Security Act of 1950, along with the 1954 Communist Control Act
provides extensive legal grounds for criminalizing organizations
dedicated to the overthrow of the United States, as well as membership
in such organizations-- and even provides for the removal of
citizenship from members of such organizations.

While succeeding courts have thrown out many portions of these laws,
had the United States truly gotten serious about the War on Terror, it
could have passed a real Patriot Act that would have clamped down on
Islamist organizations in a similar way.

The bill could have easily retrofitted some of the language of the Communist
Control Act as follows;

Sec. 3. Islamic organizations, regardless of their assumed
name, whose object or purpose is to overthrow the Government of the
United States, or the government of any State, Territory, District, or
possession thereof, or the government of any political subdivision
therein by force and violence, are not entitled to any of the rights,
privileges, and immunities attendant upon legal bodies created under
the jurisdiction of the laws of the United States or any political
subdivision thereof; and whatever rights, privileges, and immunities
which have heretofore been granted to said party or any subsidiary
organization by reason of the laws of the United States or any
political subdivision thereof, are hereby terminated:

Sec. 4. Whoever knowingly and willfully becomes or remains a member of
such organizations, or (2) any other organization having for one of its
purposes or objectives the establishment, control conduct, seizure, or
overthrow of the Government of the United States, or the government of
any State or political subdivision thereof, by the use of force or
violence, with knowledge of the purpose or objective of such
organization shall be subject to all the provisions and penalties of
the Internal Security Act of 1950.

The question then becomes one of defining what exactly an Islamist
organization is. If we define Islamist under the same guidelines as
Communist, but specifically modified as representing a belief in the
overthrow or takeover of the United States or any part of it, thereby
placing the United States under Islamic law... we already have a very
broad net to work with.

Or to simply quote the Internal Security Act again.

Sec. 4. (a) It shall be unlawful for any person knowingly
to combine, conspire, or agree, with any other person to perform any
act which would substantially contribute to the establishment within
the United States of a totalitarian dictatorship.

Since Islam represents a totalitarian dictatorship, any organization or
individual seeking to establish Islamic Law or Sharia within the United
States, can be held liable and charged over its violation. This would
apply to both Muslims and non-Muslims.

And the Koran or Quran itself represents a volume whose contents implicitly
call for the violent overthrow of the United States.

Consider Chapter 9 of the Koran, which governs the interaction between Muslims
and non-Muslims. Particularly Sura 9:29

[9.29] Fight those who do not believe in Allah, nor in the
latter day, nor do they prohibit what Allah and His Apostle have
prohibited, nor follow the religion of truth, out of those who have
been given the Book, until they pay the tax in acknowledgment of
superiority and they are in a state of subjection.

There are numerous other verses in the Koran which similarly call for
Muslims to subjugate non-Muslims and take power. This parallels the
charge against the Communist party and places Muslims who believe in
the Koran on the same level as Communists who believed in the overthrow
of the United States.

Participation in any Muslim organization therefore becomes the
equivalent of participating in a Communist organization-- and can be
banned.

So back to the original question, can we ban Islam? While we cannot ban an
individual from personally believing in Islam, we can ban Islamic
practices and organizations-- which would effectively ban any practice
of Islam in an organized way.

While the First Amendment does not permit a ban on any specific
religion, this is limited to religious belief, not religious practice.
And the laws enacted against Communism in the 1950's demonstrate that
organizations aimed at the overthrow of the United States can be banned
and membership in them can even be criminalized.

Thus we can ban Islam from the public sphere, ban Muslim organizations
as criminal organizations, criminalize Muslim practices and even
denaturalize and deport Muslims who are United States citizens. The
legal infrastructure is there. Despite the fact that the United States
is far more protective of political and religious rights, within a
decade every single Muslim organization, from the national to the
mosque level, can be shut down... and the majority of professing
Muslims can be deported from the United States regardless of whether
they are citizens or not.

We can do it. Whether we could or will do it is another matter. It
would require rolling back a number of Supreme Court
decisions that are a legacy of the corrupted Warren Court.
But it was possible post 9/11.

It may yet become possible again.