Muslims and Religious Liberties

A commonly held belief in the United States is that serious violations of Muslim civil rights started after September 11, 2001. In fact, Muslims in this country have endured a long history of civil rights violations, especially with respect to their first freedom, the freedom of religion. The first wave lasted several hundred years and was perpetrated against African Muslims who were forcefully removed from their countries to America and enslaved. Many of them became subject to a policy of forced conversion, and some were able to generate support to regain their freedom in part by promising to go back and preach the Gospel in Africa. Those who returned tended to revert to their faith upon arrival. Those who remained behind often practiced their faith secretly.

The second wave of civil rights violations began in the 1990s, culminating in the Antiterrorism and Effective Death Penalty Act of 1996, which was passed after the bombing of a federal building in Oklahoma by Timothy McVeigh, who was associated with the Christian identity movement. The act, which applies to citizens and noncitizens, reintroduces guilt by association by making it a crime to provide any material support (except for medicine and religious material) to humanitarian and political activities of any group designated by the secretary of state as ‘‘terrorist’’—a concept broadly defined to include virtually any use of force. Since the designation by the government is based on national security considerations (another broadly defined concept), the courts are reluctant to review it. To date, almost all of the entities designated as ‘‘terrorist’’ under this act are Muslim.

According to Robert Allison, author of The Crescent Obscured, Islam was viewed in the eighteenth century as a wicked religion which had fostered bad government and indolent people. Plays featured fictional Muslim spies or oppressed Muslim women. Today, Islam is viewed by prominent religious leaders, such as Revs. Pat Robertson, Jerry Falwell, and Franklin Graham, as promoting violence, not indolence. In one ingenious stroke, this shift effectively removes First Amendment protections from American Muslims. Muslims are now portrayed by various commentators as untrustworthy spies or members of ‘‘sleeper cells’’ of terror. Bearded men and veiled women are challenged daily in the workplace, in schools, and on the street. Employment discrimination is rising, so are hate crimes. Islamic centers and mosques are being vandalized and sometimes burned. Racial profiling has taken root, and some Muslims have been removed from airplanes due to suspicion based on their appearance. Modest women have been invasively searched at airports or forced to remove their head cover. Less fortunate Muslims have been physically assaulted, raped, or killed. Those who look like them, such as the Sikh, have gravely suffered the consequences of mistaken identification.

The events of September 11 ushered in a policy that has effectively induced reverse immigration by Muslims to their countries of origin through detentions, interrogations, and deportations. Around one thousand persons were detained soon after September 11, but their names and their exact number were not released. When some were ultimately charged, most of the charges turned out to be minor criminal and immigration charges. Fear spread in the Muslim community. In 2002, the National Security Entry-Exit Registration System (NSEER) was instituted, requiring males within a specific age bracket from predominantly Muslim countries to report to immigration services for registration. When they did, there were further mass arrests and deportations, again on minor immigration charges. Those detained were often treated poorly and, in at least one case, fed pork, a religiously prohibited food. Other Muslims began leaving this country instead of reporting.

The interaction between the act and immigration laws and practices has also contributed to an erosion of free speech and the free flow of information by denying visas to attend conferences and meetings to persons associated with groups designated as terrorist, even if these persons are not involved in violence. The denial of due process to the noncitizen alien remains the most salient feature of the act. The act gave the Department of Justice the power to use secret evidence in the deportation of noncitizens, even if unconstitutionally obtained, but required the government to provide the noncitizen a summary of that evidence. The summary arrangement has many shortcomings, not the least of which is the problem of cross-examination.

The act also has a provision requiring banks to freeze assets of designated organizations and their agents. It was used repeatedly prior to September 11. But the freezing of the assets of Islamic charities subsequent to September 11 cast a deep chill over charitable giving among Muslims, even to their families abroad. In light of the fact that charitable giving (zakat) is one of the five pillars of Islam, the present situation has placed undue burden on Muslims in the free exercise of their religion. Guidelines issued by the government to alleviate this problem are ineffective because of the broad disclaimer at their conclusion. Today, a Muslim who wants to give zakat safely to a Muslim child for humanitarian aid is advised to do so through an American non-Muslim charitable organization.

After September 11, 2001, the USA PATRIOT Act was hastily passed in Congress. Its enhanced surveillance provisions have caused great concern. It permits significant delay in the notice of execution of search and seizure, severely limits habeas corpus petitions, and does not require agents to demonstrate ‘‘probable cause’’ to believe that a person is engaged in terrorist activity. After its passage, law enforcement in northern Virginia raided many homes, a school, and places of business owned by Muslims. Those present were interrogated and restricted in their movement for hours. Computers and other items were confiscated, but no charges have been made so far. Many women subjected to these searches have received trauma counseling.

Under the USA PATRIOT Act, law enforcement has also acquired authority to search library and bookstore records relating to citizens as well as noncitizens, as well as to issue a gag order on the owner not to reveal these searches. Most recently, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act has been proposed; this gives local police the authority to enforce civil immigration laws or risk losing federal funding. If passed, this act would have an adverse impact on Muslim women in particular, who would then refrain from reporting Domestic violence for fear of deportation. More importantly, two events that took place in December 2004 raise the concern of American Muslims about their civil liberties to a new level. They are the Intelligence Reform Bill, signed into law by President Bush in December 2004 and the results of a Cornell University poll indicating that 44 percent of all Americans are in favor of curtailing the civil rights of American Muslims.

AZIZAH Y. AL-HIBRI

References and Further Reading

• Akram, Susan M., and Kevin R. Johnson, Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy: Race, Rights and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, N.Y.U. Annual Survey of American Law 58 (2002): 295.
• Alexander, Scott, Inalienable Rights? Muslims in the U.S. Since September 11th, Journal of Islamic Law and Culture 7 (Spring/Summer 2002): 103.
• Al-Hibri, Azizah Y., Islamic and American Constitutional Law: Borrowing Possibilities or a History of Borrowing? University of Pennsylvania Journal of Constitutional Law 1 (1999): 492 (describes a hostile climate towards Islam in eighteenth-century America).
• Allison, Robert. The Crescent Obscured. 1995. Austin, Allan D. African Muslims in Antebellum America. 1997.
• Chang, Nancy et al. Silencing Political Dissent: How Post- September 11 Anti-Terrorism Measures Threaten Our Civil Liberties. 2002.
• Cole, David. Enemy Aliens. 2003.
• ———, The NewMcCarthyism: Repeating History in theWar on Terrorism, Harvard C.R.–C.L.L.Review 38 (2003): 1.
• ———, et al. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. 2002.
• Council for American–Islamic Relations, www.cair-net.org (detailed up-to-date information on discrimination against Muslims).
• Diouf, Sylvia A. Servants of Allah: American Muslims Enslaved in the Americas. 1998.
• District of Columbia, Maryland, and Virginia Advisory Committees to the U.S. Commission on Civil Rights, ‘‘Civil Rights Concerns in the Metropolitan Washington, D.C., Area in the Aftermath of the September 11, 2001, Tragedies.’’ https://www.usccr.gov/pubs/sac/dc0603/main.htm.
• KARAMAH: Muslim Women Lawyers for Human Rights, ‘‘Liberty, Security, and the Constitution: A Town Hall Meeting for the Muslim Community,’’ www.karamah.org/news_town_hall_mmeting.htm (discusses the raids in Northern Virginia).
• Muslim Public Affair Council, A Review of U.S. Counterterrorism Policy: American Muslim Critique and Recommendations, https://mpac.org/home_article_display.aspx?ITEM=600.
• Shaheen, Jack G. Reel Bad Arabs: How Hollywood Vilifies a People. 2000.
• Weikel, Dan. ‘‘INS Judge Frees Iraqi Dissident Held for 4 Years.’’ Los Angeles Times, August 19, 2000, B1, B5.

Cases and Statutes Cited

• Al-Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir 2001)
• American-Arab Anti-Discrimination Comm v. Reno, 70 F. 3d 1045 (9th Cir. 1995), 119 F. 3d 1367 (9th Cir. 1997)
• Kiareldeen V. Reno, 71 F. Supp.2d 402 (D.N.J. 1999)
• Matter of Ahmed, No. A90-674-228, slip op. At 20 (U.S. Immigration Ctr. May 5, 1997)
• Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989)