Islamism and America

by MICHAEL MUKASEY September 13, 2011
 
Hassan al-Banna.
 
My deep thanks to the Manhattan Institute and especially to Judith Miller, for organizing this program, and for giving me the privilege of participating in it. Thanks also to Lawrence Mone for that kind introduction. 
 
The enormity of what was done to us on September 11, 2001, deserves all the solemnity and scholarship being used to mark the tenth anniversary this week, but I think that serious distortions can result from treating 9-11 as a transformative event if doing so suggests that that was Islamism’s first confrontation with the United States, or that the country’s reaction to what happened that day somehow changed in some fundamental way and irrevocably the way our government deals with our adversaries. I think that neither is true, and I think it is useful to understand that in order to understand how it is that the country that dealt so successfully with the two “isms” that haunted the twentieth century – fascism and communism – has had such mixed success dealing with Islamism – the “ism” of the current century.  
 
Actually, as a matter of history, Islamism, insofar as it holds this country in a weird combination of awe and contempt, has been incubating for about as long as we have known about the other two isms that we successfully conquered in the last century.
 
As a movement distinct from the religion of Islam itself, Islamism traces back to Egypt in the 1920’s when the loosely organized Muslim Brotherhood was established by a man named Hassan al-Banna, a primary school teacher. Al-Banna founded the Muslim Brotherhood as a reaction to the modernizing influence of Kemal Ataturk, who dismantled the shell of what was left of the Muslim caliphate in turkey, banned fez’s and headscarves, and dragged his country by the lapels – and it had to be lapels because he wanted men wearing suits not robes – into the 20th century. 
 
Al-Banna’s principal disciple was also an educator -- a bureaucrat in the education department of the Egyptian government named Sayyid Qutb, who caused enough trouble in Egypt to get himself awarded a traveling fellowship in 1948, the year Al-Banna was killed in violence generated by the Muslim Brotherhood, that fellowship was intended to have the benign effect of getting him out of the country. 
 
It did have that effect, but regrettably for us, he chose to travel to the United States, and in particular to Greeley, Colorado. Now I think it would be hard to imagine a more inoffensive place than post-World-War-II Greeley Colorado, but for a man like Sayyid Qutb it was Sodom and Gomorrah. he hated everything he saw – American haircuts, enthusiasm for sports, jazz, what he called the “animal-like mixing of the sexes” even in church. His conclusion was that Americans were, as he put it, “numb to faith in art, faith in religion, and faith in spiritual values altogether,” and that Muslims must regard, as he put it, “the white man, whether European or American . . . [as] our first enemy.” He said Muslims must make this “the cornerstone of our foreign policy and national education.”
 
Qutb went back to Egypt, quit the civil service, and joined Hassan al-Banna’s Muslim Brotherhood. 
 
 
Sayyid Qutb.
 
Qutb and the Muslim Brotherhood continued to agitate for a return to fundamentalist Islam. They welcomed Nasser’s coup against the corrupt monarchy in 1952, but then became disillusioned with Nasser when he failed to institute Sharia law or even ban alcohol. Qutb opposed Nasser, and was arrested and tortured. However, he continued to write and agitate for Islam and against western civilization, particularly against Jews, whom he blamed for atheistic materialism and said were to be considered the worst enemies of Muslims. He was released for a time, but eventually was re-arrested, tried for conspiracy against the government and hanged in 1966. 
 
Many members of the Brotherhood fled to Saudi Arabia, where they found refuge and ideological sustenance. Qutb’s brother was among those who fled and taught the doctrine in Saudi Arabia. among his students were Ayman Al-Zawahiri, an Egyptian who would become a leading al Qaeda ideologist, and a then obscure Osama bin Laden, the pampered child of one of the richest construction families in the country. And the rest, as they say is history. 
 
That history did not come to these shores on September 11, 2001, or even on February 26, 1993, when a truck bomb went off in the basement of the world trade center, killing six, wounding hundreds, and causing millions of dollars in damage in what would eventually come to be known as the first world trade center bombing. rather, it came at the latest in the 1980’s, when a couple of FBI agents spotted a group of men taking what looked like particularly aggressive target practice at a shooting range in Calverton, Long Island. 
 
When they approached they were accused of what we now call racial profiling and backed off. In November 1990, one of those men, El-Sayid Nosair, would assassinate a right-wing Israeli politician named Meir Kahane, in the ballroom of a Manhattan hotel. The case was treated by the Manhattan DA Robert Morgenthau as the lone act of a lone gunman.
 
When the 1993 World Trade Center bombers demanded freeing Nosair from jail, it became apparent that the Kahane assassination was not the lone act of a lone gunman. In fact, when authorities reviewed the amateur video of Kahane’s speech the night he was killed they discovered that one of those 1993 bombers had been in the hall when Kahane was shot in 1990, and further investigation disclosed that another was driving what was supposed to be Nosair’s get-away vehicle. 
 
The man who served as the spiritual advisor to Nosair and the 1993 trade center bombers, Omar Abdel Rahman, the so-called blind sheikh – who later would issue from jail the fatwa that authorized the 9/11 attack -- along with Nosair and several others, were tried before me and convicted for participating in a conspiracy to conduct a war of urban terror against this country that included the Kahane murder, the first trade center bombing, and a plot to blow up other landmarks around New York, and to assassinate Hosni Mubarak when he visited the united nations. The list of unindicted co-conspirators in that case included Osama bin Laden, the pampered rich kid who had studied at the knee of Sayyid Qutb’s brother in Saudi Arabia. 
 
All of this was treated as a series of crimes – unconventional crimes, maybe, but merely crimes. In 1996 and again in 1998, Osama bin Laden declared that he and his cohorts were at war with the United States, a declaration that got little serious attention. 
 
In 1998, our embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania, were almost simultaneously bombed, and again the criminal law was invoked with the usual mantra of bring them to justice, this time in an indictment that named bin Laden as a defendant.
 
Apparently he was unimpressed, or at least undeterred, because in 2000 his group, al Qaeda, bombed the USS Cole in Aden, Yemen, killing 16 US sailors, and would have carried out the bombing of another naval vessel, the USS The Sullivans, but for the fact that the barge carrying the explosives was over-loaded and sank. 
 
And then of course came September 11, 2001, and to the call bring them to justice was added the call bring justice to them, and we were told that we were at war, which was more than 50 years after Sayyid Qutb determined that Islamists would have to make war on us, about 15 years after Islamists had made it clear that they were training for war with us, and five years after Osama bin Laden made it official with a declaration of war.
 
Apart from military action in Afghanistan, the administration sponsored, and congress passed, the often derided but rarely read USA Patriot Act, a series of provisions that applied to terrorism cases measures that were already in place with respect to other kinds of crimes, including roving cell phone wiretaps that had been used for years in narcotics cases, and authorized the gathering for intelligence purposes of documents records that could already be gathered in criminal investigations by young government lawyers with the simple and unsupervised expedient of a grand jury subpoena. It also helped break down the wall of separation between intelligence gathering and law enforcement that had prevented law enforcement and the intelligence community from sharing information.
 
The administration also responded with at least the beginning of a recognition that we were facing not simply a law enforcement problem but a war. The means to fight the war had to be suited to the enemy who confronted us. Islamists did not occupy a country that could be conquered and subdued, or indeed any particular territory. The main weapon to defeat them was and is intelligence. The Bush administration undertook two programs that became topics of controversy. One was an electronic intelligence gathering program that targeted the communications of foreign terrorist organizations and their adherents, at first outside and then within the terms of the foreign intelligence surveillance act. That program has been authorized and reauthorized by congress and remains in force to this day; it is one of the main reasons why terrorists have had at best limited success in mounting attacks in this country in the decade since 9/11. The second was an interrogation program run by the CIA and since abandoned amid claims, which are demonstrably untrue, that it involved the use of torture. 
 
This program yielded enormously valuable information even though of the thousands of terrorists captured by US forces, fewer than 1,000 were detained by the CIA. Of those, fewer than a third were subjected to any harsh interrogation technique, and of those, three – Abu Zubaydah, who gave up information leading to the capture of Khalid Sheikh Mohammed, known as KSM, KSM himself -- the mastermind of the 9/11 plot – and Abd Al-Rahim-Al-Nashiri – who organized the attack on the USS Cole – were ever subjected to the harshest of those techniques – waterboarding. In fact, it’s been pointed out that when you consider the number of journalists who claim they subjected themselves to waterboarding, it seems apparent that more journalists have been waterboarded than terrorists. As is apparent from the detailed memos improvidently released by the justice department, which disclosed those techniques in detail, none of them violated the torture statute. 
 
The CIA program, as I said, has been scrapped, and we have told the world – including our adversaries – that the limit of what is permitted to anyone acting under the authority of the United States – from the most carefully trained and supervised CIA employee on the most urgent intelligence gathering mission, to the rawest recruit in the armed forces confronting someone captured in battle – is the army field manual, which is designed for the rawest recruit, has been available on the internet for years, and has been used by terrorists for years as a training manual. 
 
As I said at the beginning, our success has been mixed. Osama bin Laden is assuredly dead. we have had in ten years no repetition of an attack on the scale of 9/11, although the now abandoned CIA interrogation program disclosed that there were follow-up attacks planned, including on the library tower in Los Angeles and the Canary Wharf complex in England, attacks thwarted because we were able to find out about them and stop them. 
 
We have, however, had attempts, and some successes. Umar Farouk Abdulmutallab, trained by al-Qaeda in the Arabian Peninsula, tried to detonate a bomb aboard an airplane over Detroit in December of 2009 and failed only due to the bravery of the crew and fellow passengers. In May of 2010 Faisal Shahzad, supported by the Pakistani Taliban, tried unsuccessfully to detonate a car bomb in Times Square. One terrorist murdered an army recruiter in Little Rock, Arkansas. Another, an army major, murdered 13 of his fellow soldiers at fort hood in November 2009. 
 
And of course, after ten years, during most of which we have had in custody the planners of 9/11, we appear to be nowhere near trying them. 
 
We are also completely wound around the axle when it comes to answering basic questions. Questions like who is our adversary? What do we do with people we capture? are we in a war, and if so, must we know from the beginning what victory will look like or else refuse to fight?
 
How come?
 
I would suggest that a clue to how come can be found in the response of our government to September 11 and its anniversary, and its response to the near misses and the hits I mentioned a moment ago. 
 
Lest anyone think I believe the administration I served is blameless in all of this, recall that the president told us within days of the attack that Islam is a religion of peace, and that it had been hijacked by extremists. Imagine, if you will, President Roosevelt telling a joint session of congress on December 8, 1941, that the peaceful Shinto religion had been kidnapped by extremists. 
 
Fast forward to last week, when the white house issued talking points about the 9/11 anniversary, urging that those inclined to repeat them suggest to their listeners that 9/11 wasn’t simply an American experience, that “citizens of over 90 countries . . . perished in the 9/11 attacks” and that “we honor all victims of terrorism in every nation around the world. We honor and celebrate the resilience of individuals, families and communities on every continent.” there followed a list of eight cities around the world, including Belfast, which as far as I know hasn’t had a terrorist attack since 9/11, and certainly none related to Islamist terrorism. And oddly, not one of those cities was located in the one country that has contended with terrorism from the first day of its existence. 
 
 
Umar Farouk Abdulmutallab.
 
Although Umar Farouk Abdulmutallab was sent here by foreign terrorists to blow up an airliner on Christmas day, and although his principal value at the time of his capture was as a source of intelligence and it would have been useful to find out who sent him, something that must have been sensed at the time but was confirmed later when we found that package bombs that were the same type as he was carrying started appearing in packages headed for this country, nonetheless he was treated as an ordinary criminal defendant and read his Miranda rights. 
 
At the time of the near miss in Times Square, before we knew who had planted the bomb or why, the mayor of this fair city offered to bet the princely sum of a quarter on the proposition that whoever had done it was angry about the health care legislation. He too was treated as an ordinary criminal rather than interrogated as a potential intelligence source. 
 
And after Major Hasan’s murder of 13 of his fellow soldiers at fort hood, preceded by a history of expressions of Islam-inspired opposition to the United States, and of course the cry “Allahu akhbar” before he started shooting, the Army Chief Of Staff said afterwards that the principal tragedy he was concerned with was injury to the army’s diversity program, and the official report about the incident nowhere mentions Islam or Islamism as Major Hasan’s motivation. 
 
Finally, in August, the White House issued a paper styled “empowering local partners to prevent violent extremism in the United States.” It runs to eight pages, and tells us that the principal challenge we face is remaining united and avoiding anti-Muslim backlash as ideologically motivated followers of al Qaeda – we aren’t told what is in the ideology – try to radicalize members of the Muslim community. The way we do this, according to this paper, is through community-based initiatives and grassroots partnerships with what is referred to as local stakeholders in the affected community. small wonder that such stakeholders as the council on American Islamic relations – CAIR, affiliated with Hamas and the Muslim Brotherhood and named as an unindicted co-conspirator in the leading terrorism financing case in this country, and others of like mind, have announced their support for it.
 
For a wide variety of reasons, whether because of our experience with the treatment of people of Japanese ancestry in this country during World War II, or because we have a reluctance that is in many senses of the word constitutionally based to talk about other people’s religions, there has been a prevailing refusal to identify and understand what motivates our adversaries. 
 
As to the question of what we do with the terrorists we capture, according to congressional testimony by General William Mcraven, the head of special operations command, we have no coherent policy on what to do with the people we capture. The administration refuses to send anyone to Guantanamo, although it is in fact a state of the art facility. I have visited it, and had occasion when I was a judge to visit various US prisons, and it compares favorably with medium security facilities in the federal system. so we can either bring them to this country for trial in an Article III court, with the perverse effect of rewarding people who refuse to follow any of the rules of war – to wear uniforms, carry their arms openly, to follow a recognized chain of command, or to refrain from targeting civilians – with better treatment than they would be entitled to as prisoners of war. The alternative to that, he testified, is turning them over to another country, at which point we lose control over any information they provide as well as how they are treated, or releasing them.
 
Of course, that pertains only to those we capture. We have the alternative of killing them with drones, which of course yields no intelligence and may be considered in some quarters less humane than capture.
 
In a target-rich political environment like the one we live in, it’s pretty easy to stand up here and skip rocks off several of those targets. But how does one really focus the discussion?
 
I suggest we start by identifying Islamism as our adversary, and then try to understand it, and by understand it I mean not only its manifestation as terrorism, but its entire anti-western and anti-democratic agenda. 
 
Understanding basics like that will allow us at least not to empower our adversaries. I am not suggesting that we can bring about some fundamental change within Islam; that kind of change in fact will have to come from reformist elements within Islam, and they exist. 
 
I recognize also that if the Establishment Clause of the First Amendment to our Constitution means anything it means that our government cannot go around picking winners and losers in theological debates. But we can certainly defend ourselves, and when fund- raising for Muslim charity, a religious duty called zakat, becomes fund-raising for organizations that support terrorism, that behavior should be prosecuted under statutes that criminalize material support for terrorism, rather than encouraged in the guise of facilitating charity. We should not have prosecutors being told, as they are, not to bring such cases for fear of giving offense to people who are bent on our destruction. We should realize that cultivating them not only endangers us, but also endangers and silences people in the Muslim community with moderate views, and there are many such people.
 
When our government does outreach to the Muslim community, as it does constantly, there is no reason why that outreach cannot go to reformers, and why we cannot avoid going to organizations that are affiliated, whether directly or indirectly, with the Muslim Brotherhood, the organization founded by Hassan al-Banna in Egypt in the 1920’s, whose representatives were invited to attend president Obama’s speech at Al Azhar university in 2009, and an organization that continues to this day to function actively in Egypt and through affiliates in this country, including such organizations as ISNA – the Islamic Society of North America, which was proved during the terrorist funding trial of an organization called the holy land foundation to be affiliated with the Muslim Brotherhood and involved in funding Hamas, and other similar organizations that have been the objects of outreach by the government. We should recall that the motto of the Muslim Brotherhood, which one director of national intelligence testified was largely a secular organization: that motto is, “Allah is our objective; the prophet is our leader; the Koran is our law; jihad is our way; and dying in the way of jihad is our highest hope.” 
 
We can ask congress to face the fact that we have to detain people, and pass a statute that defines who is subject to detention, and with what safeguards, and make intelligence gathering a principal and not a secondary goal following capture. I don’t know whether it will come as a surprise to you that the only authority the government relies on now to detain people is the authorization for the use of military force passed by congress in September 2001, and that statute does not even mention the word detention. 
 
And it may well be that if detainees must be charged with war crimes on an ongoing basis – and we don’t have a large number of them in custody now, but that could change – in that event, we may have to ask ourselves whether the military, which is in the business of winning wars not running a parallel justice system, should be asked to shoulder a burden it may not really be suited to carry. 
 
I say that most respectfully of the military, knowing that we have had military commissions before in our history – many times. But only on an episodic basis; never long term. 
 
It may well be that what is needed is a national security court to replace military tribunals, presided over by article iii judges but staffed perhaps from the military. Many people have written extensively about what such a court might look like. 
 
Some of these steps need to be taken immediately – recognizing the danger, and prosecuting material support cases instead of worrying about the sensibilities of people who mean to destroy us are at the top of that list. Serious efforts at intelligence gathering from all terrorism detainees is a close second.
 
I think it would be helpful at least to start the discussion about a viable detention statute. We are holding people in custody now at Guantanamo who are not charged with war crimes and will not be so charged, but are deemed too dangerous to release or cannot be released to any jurisdiction where they will be safe. There are about 100 such people, and the Supreme Court in the Boumedienne case said they had to be able to file habeas corpus cases, but left it to individual judges to devise the rules for conducting such cases. Those cases are being filed in the District of Columbia where the judges, being human, are coming up with different standards and differing results in factually similar cases. 
 
It may be that all of this will sort itself out in the usual mess of appeals and remands and so forth, but if the numbers of prisoners for some reason goes up sharply, or if there is pressure for uniformity because divergent results that were only a mild irritant until now come to be regarded as intolerable, then at least such a discussion will have generated proposals, and we will have something at hand.
 
A national security court is even further on the horizon, and so perhaps we don’t have to start actively talking about that yet.
 
Procrastination is generally regarded as a bad thing, but when it comes to answering the questions we have refused to face in the last ten years, a bit of triage is in order. We can’t take on all the questions at once; triage means dealing with what you have to deal with first. 
 
And so far as the ultimate question is concerned, what will winning look like, I would prefer to worry about that when the time comes to worry about it. Winston Churchill said in November 1942, after the British victory at El-Alamein, “Now this is not the end. It is not even the beginning of the end.  But it is perhaps the end of the beginning.” So long as the issues I have mentioned remain open, I do not think we can treat even the death of bin Laden, as welcome as that is, as even the end of the beginning. I think we can do that when there are more Islamists who are concerned that their movement is giving up the goal of imposing their will on the west than there are Islamists who dream of achieving that goal. I don’t think we are quite there yet.
 
Again, thank you very much for organizing this symposium, and for the privilege of speaking to you. 
 
 
Family Security Matters Contributor Michael Mukasey is a lawyer and former judge who served as the 81st Attorney General of the United States. This speech was presented at the Manhattan Institute on September 7th, 2011.
 

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