The following is an article by David Yerushalmi from the web site SaneWorks.us. We are reprinting it with permission.
THE QUESTION MIGHT BE ASKED: why would SANE’s president David Yerushalmi provide pro bono legal services to give Muslims a voice? The answer lies in the distinction between Islam as a personal religious faith and the religio-political ideology of traditional and authoritative Shari’a which has everything to do with the survival of the West.
The question has been asked of me by good and serious men: Why would I have undertaken to represent ABG Films, and done so pro bono, to give voice to moderate Muslims? The question appears, and I underscore appears, to take on greater import in light of SANE’s sponsorship of our Mapping Shari’a in America project and our call that historical, traditional and authoritative Shari’a amounts to a violation of 18 USC 2385, the text and discussion of which is below. So, let me begin by explaining my reasons for taking on the case of freeing the documentary “Islam vs. Islamists” from those who would suppress it and explain why it is a fit with SANE’s work.
To begin, the men behind ABG Films, Frank Gaffney, Alex Alexiev and Martyn Burke, are serious, dedicated film makers seeking to establish a discussion about the growing problem of violence and intimidation within the Muslim communities of the West. This is work we certainly support. Their motivation of course includes protecting those patriotic and westernized Muslims who call America their home and desire nothing more than to live peaceful and prosperous lives as fully committed Americans.
When I read about the controversy surrounding the film and understood that the PC Elite had effectively joined hands with those forces and institutions in the Muslim world which seek to impose traditional Shari’a (loosely understood as Islamic law since it also includes what in the West we would term customs and even preferences) as the sole criteria for what a Muslim can do and believe, I decided to offer my services as my contribution to the effort to make it possible for the patriotic Muslim voices of the West to be heard.
And the reason is because they should be heard.
American Muslims who fully reject traditional Shari’a as an all encompassing binding law and political ideology and seek to pray and raise their families peacefully and as fully committed Americans deserve that chance like all Americans. Shari’a, as it is taught in the five authoritative legal schools (4 Sunni and one Shia) and propagated most effectively by the Wahhabis of the Gulf States, notably Saudi Arabia, and the Ayatollahs of Iran, demands a political-military voice as much as a religious one – and, indeed, the Shari’a-driven war is as forcefully directed against the fully Westernized Muslims as apostates as against the rest of us as infidels. (We speak of five specific schools because there have been more than five throughout Islam’s history; some of which are no longer extant as viable schools and others which exist but are marginal with very few adherents.)
For that reason I chose to lend my legal skills and effort to the battle to free the film for a full distribution in the near term. Thankfully, we were successful and the “Second Hour”, known as “Muslims against Jihad” has already been featured on Fox News in a discussion format with my clients several times and the main film “Islam vs. Islamists” will be airing on Oregon Public Broadcasting in August and quite possibly across the country soon thereafter. A DVD deal is already in the works with a major distributor.
This film “project” was not and is not in any way contrary to our work here at SANE and our Mapping Shari’a project. In fact, they are complimentary. In both our Mapping Shari’a project and in our effort to fully expose traditional and authoritative Shari’a as the most serious contemporary threat to America’s safety, we recognize that the threat arises out of traditional Shari’a’s demand to monopolize the Muslim — his world, his national affiliation, and even his very patriotism.
It is this Shari’a — a fully developed religio-political ideology — that is used by the “traditionalists” to attack the patriotic and Westernized “moderate” Muslims as “not real Muslims”. It is our committed position that all Americans should stand in solidarity with any American Muslim who wishes to embrace Islam as a purely religious faith — practicing the Five Pillars (commitment to monotheism; prayer; charity; fasting; and pilgrimage) — as a committed American and who rejects traditional Shari’a which demands to control and not merely to inform the entire life of the Muslim, including his attitude about and relations toward his country.
Our effort to fully expose the insidiousness of the “traditionalists” or what we term the “Shari’a-faithful” can best be explained by examining the teaching of Shari’a from the perspective of treason. Today, no serious scholar of Shari’a would deny that the goal of Islam per Shari’a (again, as articulated by the five authoritative schools) is the establishment of a world wide Caliphate ruled according to Allah’s perfect law, the Shari’a. That is simply too fundamental a concept over which to quibble.
Further, all five authoritative schools of Shari’a have also codified that Jihad as war is part of that goal. It is true that a host of issues abound around this question of Jihad, such as the notion of offensive war versus defensive; who is authorized to call for Jihad; is it a collective obligation or an individual one; what kind of tactics may be employed in this war, who are legal targets of violence, and others. But one thing is agreed between the legal schools: if war is the only viable alternative to conquering the land of the infidels, if the ratio of the forces of the infidel aligned against the Muslims are not beyond the prescribed limit, if such a war would be good for the Muslim Umma or people, and if a recognized Muslim leader calls for such a war, then war it must be.
What that means of course is, that given Shari’a as it exists today and as it has existed for over 1000 years, adherents of authoritative Shari’a accept the notion of war to overthrow the US government and other Western nations given the right conditions. And, of course, we see what seems to be a never ending stream of Jihadists fully committed to this goal, which suggests that there is at least a consensus among some Muslims that the conditions have been met for war.
Now, read existing US law as codified in Title 18 (the federal criminal code), Section 2385:
§ 2385. Advocating overthrow of Government
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying 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 or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof —
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
This of course is the Smith Act of 1940, as amended. The Supreme Court has had two occasions to review cases prosecuted under the Smith Act. In the first case, Dennis v. US, 341 U.S.494 (1951), the Court heard appeals from Communist Party leaders who had been convicted of violating the Smith Act and whose conviction had been affirmed by the Court of Appeals. The Supreme Court examined the First Amendment and other constitutional challenges, was unpersuaded, upheld the statute as constitutional, and affirmed the convictions.
The second time the Court took a look at the Smith Act was six years later in the case of Yates v. US, 354 U.S. 298 (1957). By this time, however, the Court was now under the spell of Chief Justice Earl Warren and the other liberal Justices of the time. They had already tested their mettle in Brown v. Board of Education some three years earlier. The question might have been reasonably asked, would the Court sustain the legislation in the face of a First Amendment challenge and effectively overrule Dennis?
The Court delivered its answer by not even addressing the First Amendment issue. What the Court did do was to limit the Smith Act to cases where the advocacy for the overthrow of the government was more than merely theoretical and to require a real nexus between the advocacy and some action that was being urged to achieve the treasonous goal.
Now, if we were to take into consideration that the Jihadists who cite Shari’a do so to advocate the violent overthrow of the US government, one might well argue that this alone satisfies the condition under the Smith Act for a criminal conviction even under the Yates holding. The argument is fairly straightforward.
The Jihadist, following Shari’a, teaches that the purpose of Islam is the submission of the world to Allah’s will as expressed in his perfect law, the Shari’a. Further, anyone who teaches that the Muslim must be faithful and adhere to the traditional and authoritative Shari’a is advocating in effect precisely the same thing. Jihad, which most certainly includes the use and the advocacy of the use of violence in the effort to overthrow the infidel government, is an obligation on the Muslim, either as part of the collective or as an individual. By virtue of the fact that this is a religious instruction and understood to be a call to action — to live by the Shari’a fully and faithfully — and not merely some theoretical theological or political discussion, the call to observe traditional and authoritative Shari’a is the call to arms in a clear and decisive way. It would be hard to understand how this would not be a prima facie violation of the Smith Act.
And, it would seem that for the patriotic and peaceful Muslims, the application of this statute to Shari’a would be welcomed. Once the government announced its intention to use this legislation or something similar to it (such as the SANE Immigration Proposal), the religious, moral, and institutional sway of the traditionalists demanding strict observance of Shari’a would come to an end. This would certainly be true in countries that took this approach.
No more would “moderate” Muslims have to compete for the pulpits in their mosques. No more would they have to suffer the political tirades during Friday prayers, the explicit threats or even the implied threats. They would have total freedom of movement to claim their religion from the Shari’a advocates and demand a new understanding, a wholesale reformation, fully in line with the US Constitution and our representative government.
While this would not arrest the call for Jihad in the Middle East and other Muslim countries, it would certainly clean things up in the Homeland. Without the mosques and the Islamic day schools at their disposal, the Jihadists would be forced underground and with very little room for da’wa or outreach. It is not difficult to build Jihadist cells and even networks when you can openly send your preachers from one mosque to another and when you can teach young Muslim children in private day schools to reject the law of the land and to embrace Shari’a. If that were to be illegal, the Muslim-American landscape would change almost overnight. The Shari’a-advocacy organizations like CAIR could be shut down on the spot. The Fiqh Council of North America would have to reject traditional Shari’a, renounce the very notion of a world under the control of Shari’a, and begin building a new fiqh based upon Western principles. The alternative: face closure and even prosecution.
Will this proposal be controversial? Of course. But it will be for two reasons. One, people of good will might very well react negatively to the idea that you could outlaw anything to do with religion. But this objection need not be given much weight if these same good people think through the proposal. Private, peaceful religious faith is untouched. A Muslim who wishes to pray toward Mecca or even a women who wishes to cover herself with a hijab would be free to do so. What would be illegal would be the advocacy or teaching of these acts of religious faith as a legal obligation arising out of traditional Shari’a as we have defined it.
Two, people of bad faith, both those Muslims with a Shari’a-driven agenda and the Open Society PC Elite who advocate “tolerance” to the point of self-destruction would join hands in the convergence we already see at work today and which I contend was at work with the suppression of the ABG Films documentary.
At the very least, the proposal deserves a fair and considered hearing since there appears little the West can do given its current approach to multi-culturalism and the Open Society. As we see so vividly in Europe, the Jihadists know full well how to exploit this national self-destructiveness. In America, we can witness the same modus operandi with CAIR. Even as the organization’s genesis arose out of terrorist links, and even as one after another of CAIR’s key people were sent off to jail or deported on terrorist-related charges, and even as it now stands as a named unindicted co-conspirator in a federal trial alleging illegal funding of a front group for Hamas, one of the world’s most murderous terrorist organizations, CAIR is given leave not only to exist, but to sue John Doe citizens for doing what patriotic citizens ought to be doing, to agitate for the insertion of Shari’a in all kinds of settings, and to issue press releases after every terrorist act against the West claiming that the only real danger is the danger of a backlash against Muslims – a backlash of course that never materializes except in isolated incidences of hooliganism.
It is time to confront the source of the violence in Islam and to root it out. All Americans should join in this effort willingly and with the best of civil intentions. What is needed in this effort is dialogue but also action. It is not enough given the threat we face merely to talk about these things. It is for this reason that those Americans directly involved in SANE — Christians, Jews, and yes, some very high profile reform-minded Arab Muslims, are engaged in actually Mapping Shari’a. It is for this reason I offered my services as an attorney to ABG Films and why I represent other Muslim reformers, always pro bono, in their efforts to free the patriotic faith-based Muslim from the tyranny of a legalistic political ideology. This murderous ideology was used to organize the native populations of Arabia, Damascus, and Baghdad one thousand years ago into one of the fiercest fighting forces the world has ever seen but is quite obviously a threat to the very existence of the West and the Muslims who wish to live here as patriotic and contributing members of this great nation.