February 9, 2006 | FrontPageMagazine

Symposium: Banning Sharia?

Just recently, the Australian government informed its Muslims that those amongst them who want to live under Islamic Sharia law should leave the country. In other words: if secularism is not your cup of tea, Australia is not for you.

This tactic by the Australian government is clearly designed to rid its society of radicals and to protect its people from potential future terror attacks.

Should America follow this path? How can a democracy that values tolerance take measures against those that are intolerant? Can a liberal society force certain citizens to leave, or not enter, simply if they do not believe in secular law? Have we come to the point where we have no choice but to go down this road?

Our guests to discuss this issue with today are:

Andrew C. McCarthy, a former federal prosecutor and a senior fellow at the Foundation for the Defense of Democracies. He prosecuted the Blind Sheik and his organization for seditious conspiracy in 1995;

Henry Mark Holzer, (www.henrymarkholzer.com), Professor Emeritus at Brooklyn Law School and an appellate lawyer who specializes in constitutional law. He is the co-author (with his wife Erika Holzer) of Aid and Comfort: Jane Fonda in North Vietnam. He is writing a book about the jurisprudence of Supreme Court Associate Justice Clarence Thomas. His current book, Keeper of the Flame: The Supreme Court Jurisprudence of Justice Clarence Thomas will be published in the spring. 


Cliff May, a former New York Times foreign correspondent, he is president of the Foundation for the Defense of Democracies, a policy institute created immediately following 9/11/01 that focuses on terrorism and democratization;

FP: Andrew McCarthy, Henry Mark Holzer and Cliff May, welcome to Frontpage Symposium.

Mr. Holzer, let me begin with you. What do you think of Australia's recent step and is it something we should emulate? What are the key issues/obstacles here?

Holzer: Hello, Jamie. Good to be with you three again.

As I read the press reports, the Howard government in Australia merely “invited” Muslims who do not want to assimilate to leave the country.  So far, that's it— only a “shape up or ship out” declaration.  Unfortunately, it comes late in the game, and as Howard and his cabinet expressed themselves, theirs is an empty threat.  The reports that  “later” there “might” be a “crackdown,” “hints” at “targeting” dual citizenship Muslims for deportation—“clear off” the Education Minister was reported to have said.  Too little, too late, I say.  But that's the Aussie's country, not mine.

As to mine, I begin with three premises:

[1] we are at war, just as much as we were in WWI, WWII, Korea, and Vietnam,

[2] there is a literal (not figurative as in Fonda-Hayden-Spock-type) fifth column hard at their subversive work within the United States,

[3] many, if not most of them, are Muslims.  Andy and Cliff know much more about (2) and (3) than I do.

There is an “ought” and an “is” to this analysis.

The key question is what our democracy “ought” to do with the fifth columnist in our midst.  The answer is that they must be identified, prosecuted under conspiracy and other applicable criminal statutes, and they must be neutralized in federal prisons for a very long time.  They should not merely be deported, only to show up here plying their terrorist trade yet again.  Unlike the Australians who make suggestions, we must be ruthless about eliminating these people.

As to those not yet identified as fifth columnists, they must be watched (yes, with domestic wiretaps, and every other tool available to us), and when they cross the line put away until they pose no further danger to us.  Undercover agents in mosques, surveillance, subpoenas, search warrants, grand jury investigations, use of the IRS—whatever it takes.  Once we defeat the terrorists, things will get back to normal—as they did after the Civil War, WWI, and WW II.  (Ask Lincoln, Wilson, and FDR how they would handle today's problem).

If accomplishing this requires focusing on every Muslim in the United States (“profiling” is the pejorative term of art used by the left), so be it—and no apologies, thank you.  As has oft been said, while most Muslims are not terrorists, most terrorists have been Muslims. 

But the “ought” is not the “is.”

The “is,” I fear, is quite different.  Those of us who understand today's threat face a terrible confluence of factors:—the ideologically corrupt mainstream media, the ascendancy and resources of the hate-America crowd, the softness of many politicians, the short attention span of most Americans, the shallowness of the values, the lack of education, the aversion to the sight of blood, the absence of an historical sense, the mostly partisan left-democrats There is abroad in the land an anti-intellectual, anti-patriotic, anti-democratic, anti-security, and, yes, anti-freedom cancer that seems to metastasize every day.

So our “leaders” will huff and puff, take a nip here and tuck there, spend some money, act politically correct, try not to offend anyone, stroke our allies, characterize Islam as just another “peaceful religion”— while the infiltration continues unabated, while the mosques preach hatred, while the converts abound, and while the lack of awareness and weight of platitudes moves us closer and closer to being fatally undermined from within.

How then, to move from the “is” to the “ought”?

May: I'd like to draw some distinctions. Those who are agents of al-Qaeda and similar organizations must be treated as enemy combatants. There are laws about that sort of activity – as John Walker Lindh found out.

Australians – or Americans – who sympathize with the goals of Militant Islamism are free to do so. Australia and America are free countries. But none of us are under any obligation to approve of the Militant Islamists in our midst. We don't have to say it's OK to be an American Militant Islamist, just as don't have to say it's OK to be an American Nazi or Communist. 

Finally, it seems to me that America should have immigration policies in place to ensure that we welcome as new citizens only individuals who embrace the American way of life, and respect the U.S. Constitution. That would exclude Militant Islamists. 

I would recommend similar policies for Australia and other countries that value freedom, pluralism, tolerance, democracy, human rights and the rule of law. Militant Islamism rejects these concepts and indeed wage jihad against them.

FP: Ok just a second. I am all for this, but how exactly does a democracy have immigration policies in place to ensure that those it welcomes as new citizens embrace the host society's way of life? How exactly do you do this? A hearing? A test? What questions are you going to ask? What if the person just lies? How is this going to be done exactly?

May: In a time of more limited immigration —  which I think the present era needs to be — those who would like to become American citizens should be asked to apply for such status. They should be required to pass tests to demonstrate a reasonable knowledge of the English language and of American history and the principles of American government.

Their skills and employment potential should be evaluated. They should be interviewed and some effort should be made to learn about their background and beliefs.

Would some Militant Islamists get through the process nonetheless? Sure. But it would be a vast improvement over the system – it is charitable to call it that – in place currently.

FP: Ok, but I remain a bit confused as to how this would work. Especially in a democracy. Don't get me wrong, let us say an Islamist who wants to comes live here, or already lives here, is interviewed and starts saying how he supports and intends to work for a society in which women are covered up except for a slit in the eyes and the Islamic state is imposed on everyone. An individual like this, in my ideal world, would be put on the next flight out of here.

But how do we do this in a democracy? And how can this work when Islamists, for instance, can just figure out that they can pretend they are moderates when in fact they are not?

Mr. McCarthy, what do you think of all this?

McCarthy: Jamie, it strikes me that Hank, with his distinction between ought and is, and Cliff, with his separation of what people are entitled to believe versus the entitlement of the rest of society to make judgments about those beliefs, have really homed in on something that is and must remain a crucial bright line in a free society, whether its ours, Australia's or any other.  And that is:  the difference between the legal and the cultural.  The difference between the judgments we can allow our law to make, which are narrow but must be rigorously followed, and the judgments we can and should make as a society, which are much broader and must respect, but are not limited to, the legal rules.

In my mind, a good deal of the social confusion we have – and this isn't just in dealing with militant Islam – is that we have blurred that bright line as our society has become dominated by litigation.  Suing the next guy is now as American as baseball and apple pie – our most popular TV programs, movies and books often center on the legal process.  Our social and political commentary is fixated on courtroom standards of evidence and proof.  People whose preposterous arguments were once dismissed out of hand are now admired for their ability to “spin” like defense lawyers.  With all that, you've seen a change in standards – and not for the better.  People for whatever reason seem to think they are not at liberty to make social judgments until facts have been conclusively established in litigation.  So, you get socially irresponsible results – e.g., the test of fitness for public office becomes whether a person is convictable in court; “mere” indictment, “mere” shady dealings, “mere” associations with unsavory characters, we are told, is proof of nothing.  That's just inane.  We've largely relieved ourselves of the obligation as citizens to make reasoned judgments, and substituted legal processes and rules in its place.  Not surprisingly, we've thus become comfortable with judges making the final call about our important societal debates rather than having them resolved by ourselves in the democratic process.

How is our approach to Islamism and Sharia affected by all this?  Well, the rule of the road in a free society should always be what Justice Scalia has urged in a number of cases First Amendment cases.  The law must not be hostile or promotional in an intentionally discriminatory way to religious belief, but religion can make no special claims on the law.  A law that is facially neutral toward religion (in the sense that it does not single out one sect's belief system) is valid even if it incidentally limits religious practice.  Polygamy laws, for example, are valid – they don't target any religious group, they promote an important social interest, and that they happen to ban the practices of some, say, Muslims or Mormons, is too bad.  Narcotics laws are valid even if some sects believe peyote should be used in certain rituals.  And so on. 

Any other regulatory system has twin evils:  it puts government in the position of saying what is or isn't a worthy religious belief, and it makes every person a law unto himself – able to ignore any of society's rules on the ground of subjective conscience.

But the fact that law has little to say about religion does not mean society is as limited as its laws.  If you believe jihad is a religious obligation that includes mass-murdering civilians, the law says you are entitled to believe what you like, as long as you don't act on it.  We as a society, however, are not so bound.  We can condemn that belief.  We can recognize that if a large number of people have such a belief, common sense says a certain percentage of them will act on it.  It always astounds me that, if someone invokes religion, the very same people who would be ready to condemn you for saying you believe people should be able to smoke in restaurants go into cognitive arrest.  They say, well, look, we can't get judgmental about jihad, polygamy, the subjugation of women, rejection of the right to convert away from Islam, etc., because, after all, that's a religious belief.  That ain't a law problem.  That's a dysfunctional culture.

It's easy to see how a properly adjusted attitude could help us on immigration.  You can't keep people out because they are Muslims.  Unless we are prepared to make a judgment – which this society is not close to being prepared to make about Islam – that simply being an adherent of a certain creed makes a person a threat to our safety, we cannot legally exhibit hostility to a distinct class of people by banning them.  Ultimately, the courts didn't even permit that with Communists, although there were better grounds for it.  

But there is no reason that we cannot identify and be proud as a society of the religion-neutral principles we stand for:  e.g., equal protection under the law, the proposition that the right to rule comes from the people and that they are entitled to make their own laws (without regard to any religion's laws), that no religion may ever be established as the state religion, that American law (no other law) will ever govern us, that our Republican form of government is guaranteed, etc.  And there is similarly no reason we cannot test immigrants who want to come and stay here on their understanding and acceptance of those propositions.  If they don't convince us that they accept and will abide by them – even if they tell us that they believe some of those propositions are wrong but would work to change them peacefully – I think our society has every legal and moral right to keep those people out, whether they are Muslims or anyone else.

Holzer: I want to build on my earlier “is”/”ought” distinction, and in that context make another distinction, this time between those non-citizens seeking lawful admission to the United States, and those already here.  (The subject of “illegals” is something else entirely).  It will be apparent that these thoughts are merely broad strokes, and would require refinement.  They are principles, more than practices.

As to the former — those non-citizens seeking lawful admission to the United States — we currently make no serious effort to separate the wheat from the chaff, the tourist from the terrorist.  Virtually anyone other than UBL can lawfully enter the United States thanks to the plethora of forged documents available throughout the world and the scandal of how many of our consulates continue to hand out visas like Halloween candy.  That, unfortunately is the “is,” as 9/11 tragically taught us.

The “ought” requires a very different view of sovereignty, and national self-interest and security. The short of the “ought” is that no one should be allowed to enter the United States (a privilege, not a right) any longer without at least two prerequisites being satisfied: (1) an impeccable verifiable recommendation, and (2) a serious interview by an American consular official (similar to that required of those boarding El Al flights).  

Yes, that won't nail every determined terrorist, it will be expensive and time consuming, and some legitimate immigrants might not make the cut.  But on a cost/benefit basis, the latter, for us, far outweighs the former.  We must work diligently to keep potentially dangerous people out of this country, and that is one way.  More “ought”: once here, the immigrant must be kept on a very short leash, akin in principle though not necessarily in practice, to someone on probation.  Whereabouts always known.  Unscheduled checking on them.  

As to non-citizens already here, they too must be kept on that very short leash, the authorities must know where they are, and there must be a mechanism to spot check them.  Well founded suspicion must result in surveillance.

Finally—and this is a crucial point—at the slightest step over the line of legality that in any manner whatsoever implicates national security, immigrants in the United States must be either deported after a speedy, conclusive administrative proceeding with no judicial recourse (if the crime is not too serious), or imprisoned (in a worse case).  The word must go out that we are serious about who is allowed into the United States, and what the strict conditions are to remain here.  And we must act accordingly.

Some of us—Jamie, Andrew, Cliff, Horowitz, Ledeen, Gaffney, to name but a few—live in the ether of “ought,” which these days is a lonely place. If enough of the American people, and thus their elected public officials, really understood the grave dangers we face from deadly hostiles, they would join us.  Regrettably, I am not optimistic about that happening any time soon.  How much time is left for them to wake up is anyone's guess.

One last point.  I am in complete agreement with Andrew's point about the abdication of judgments in a social context, but would emphasize one aspect differently.  I don't think the litigation of which he speaks is the cause of the judgmental problem, but rather the effect of something else: subjectivism and relativism.  Too many people, largely I think because of the moral and intellectual corruption of the Sixties, are unwilling to make a judgment about anything.  Indeed, many are now incapable of doing so.  Contra our President, taken as a whole Islam is not a peaceable religion.  It has not been hijacked by radicals, who have perverted its noble, humane tenets.  It is a religion that explicitly brands unbelievers as “infidels” and demands their conversion or death (or worse).

Although scholars of Islam have proven this beyond argument, most Americans (including most of our leaders) seem not to believe it.  Why?  Because that would require making a judgment.  Because that would require eschewing notions like “who am I to say,” and “everything is relative.”  Because that would require them to be Aristotelian, and accept that “A is A,” and that things are what they are, not what they wish (or don't wish) them to be.  The tree does fall in the forest, even if we are not there to see and hear it—and the Islamofascists are trying to murder us.  And that's not a matter of opinion.

FP: You are right Mr. Holzer but there is also a catch to this problem with Islam. We cannot go to war with an entire religion and with a billion people. It makes absolutely no sense. Tactically it would be suicidal, especially when there are many Muslims that despise the extremists and terrorists within their own religion and want to work with us and fight against them. Surely we must be wise and not alienate those Muslims who are our allies in this terror war.

That doesn't mean, of course, that we don't speak the truth about what Islam is and what it teaches. But we must reach out to those Muslims, like Sheikh Prof. Abdul Hadi Palazzi and Irshad Manji, who are fighting for the soul of their religion and trying to bring it into the democratic and modern world. We have a huge stake in their battle.

Sorry Mr. May, this is another debate of course. Please return to the main subject at hand but feel free to comment on this issue as well — since it is interconnected with the courage we need to actually identify a threat before we can fight it.

May: I agree with most of what I've been hearing. Regarding the nature of Islam, I'm with Jamie. The point is not that “Islam is a religion of peace.” On the face of it, that's an odd claim to make about a religion founded by a warrior and empire builder – one of the most successful in history. But religions can and do change.

Judaism is not the same today as it was when David fought the Jebusites and Philistines. Christians today do not share the perspectives and practices of Torquemada. 

The problem is — and has been that for decades – that medievalist, utopian, aggressive versions of Islam have held sway in the oil-rich areas of the Broader Middle East. The Saudis have spent more money to spread their radical Wahhabi doctrines then the Soviets spent to spread Communism. The Iranians spread their version of Militant Islam through proxy terrorist organizations (e.g. Hezbollah and Hamas) and satellite broadcasting (e.g. al-Manar).

Moderate Muslims have few resources and are targeted by the Militant Islamists as apostates – they are more threatened than Jews and Christians. What's more, the media have no interest in the war being waged against moderate Muslims. In southern Thailand for example, moderate Muslim clerics are being killed and replaced by radicals in a concerted campaign to replace indigenous, tolerant Thai Islam with Militant Islam. There is little about this in the media, little concern on the part of human right organizations and the U.N. 

Publish a cartoon insulting to Militant Islamists in Europe? Big news. Put up a fence to keep suicide bombers from entering Israeli communities? A huge controversy.  Assassinate moderate Muslim clerics in Thailand and menace them in Bangladesh and Indonesia? That gets a big yawn from the “international community.”

FP: True, true, and gentlemen I am not arguing here that Islam is a religion of peace. We must absolutely point to all the reasons why Bin Laden and Al Zarqawi get the inspiration for their terror from the Koran and the hadiths. I am just saying that we are not going to get anywhere in this terror war by going to war with all of Islam. We have to be smart and ally ourselves with those Muslims who are fighting to bring Islam into the modern and democratic world.

In any case, I don't want us to stray here. Let's get back to how we go about getting rid of intolerant elements while we try to remain a tolerant society.

Mr. McCarthy, what do you make of the comments in this round?

McCarthy: Well, Jamie, without careening too far away from the main topic, I essentially agree with Cliff, and with what I take you to be saying, about Islam and reformation.  It is in our national security interest that the moderates prevail in their struggle against militant Islam.  I am probably less optimistic about their chances than you guys are, for a few reasons.  

The most important is doctrinal.  This is an over-simplification, of course, but the problems that required change over centuries in the Judeo-Christian traditions were more about human nature and core assumptions about the role to be played by religion in the state.  The Inquisition, for example, was about power and corruption, and ran against the basic Christian tenet that the ecclesiastical and the secular, while they reside together, create obligations that are severable:  Render unto Cesar what is Cesar's, and to God what is God's.”  Judeo-Christian scripture, moreover, is deemed to be “inspired,” not dictated by God Himself.  

So, from the Christian perspective for example, not only are you starting with a philosophy whose central commands are “love thy neighbor,” “turn the other cheek,” and “forgive them seventy times seven”; you are also dealing with scripture that is amenable to revision and reinterpretation as times change.  The core principles don't change, but our understanding of how they apply does.

Islam, to the contrary, not only proceeds from quite different premises and contains a core obligation, jihad, which is so troublesome reformers have to spend most of their time and energy trying to bleach out its military component (hard to do with a concept that is, at root, military); you also have the difficulty that the words in the Qur'an (including the ones promoting violence against unbelievers) are deemed to be the words of Allah Himself.  That makes the challenge for reformers all the more profound because they are not at liberty to say Allah was wrong, and much of the scripture we're talking about is sufficiently clear that it's hard to say He was misunderstood.  What this all ends up meaning is that it is very, very hard – both for textual reasons and because Islam lacks a central authority – to marginalize the radicals on the ground that they are perverting scripture.

On the legal immigration front, I think it's not enough just to investigate and question people who want to come here and stay here.  We need a clearer idea of what our questioning is designed to learn. 

I refer back to the basic American principles I outlined before.  If you are an American citizen, it is your right not to believe those principles, and even to work to change them as long as you do it peaceably, within the political system.  I personally find such attitudes abhorrent, but I can't claim they are illegal.  Immigrants, though, are a different matter entirely.  

There is no constitutional right to come to the United States.  Even less is there a right to come here believing our nation needs fundamental altering.  I think we only want new people here who are truly faithful to the ideals I mentioned earlier (and those people we should welcome with open arms).  We do not want people who disagree with those principles – even if they say they would work to change them peaceably as U.S. citizens are entitled to do.  If our questioning and investigation reveals such attitudes, those people should be precluded from entry or not permitted to become permanent residents or citizens.  They do not have a fundamental right to immigrate regardless of their views, and, as I discussed earlier, neither do they have a right to say:  “You can't impose those principles on me because they are inconsistent with my religious beliefs.”

The principles I outlined are what America is.  They are not just a current snapshot in some evolutionary process.  If you don't accept them, you don't belong in our country.  We can't expel citizens with such attitudes, but there's no reason we need to swell their ranks from without.  People should come to America because they want to be part of what is, not because they want to change us into something we are not.

FP: Thank you Mr. McCarthy. In terms of Islam, I agree with everything you say and I never said that I was optimistic about an Islamic reformation. My only point is that we cannot make an enemy out of 1 billion people and it makes no sense for us not to ally ourselves with those Muslims who reject extremism and terrorism and who wish to rehaul their religion. This will be no simple task for them, but we must support them and they are in this battle with us against the same enemy.

Mr. Holzer, go ahead.

Holzer: I'll have to defer to others, like Cliff, on the historical discussion of Islam and the darker corners of today's war on terror and how to deal with a billion Muslims—they are much more knowledgeable than I.  

But I can comment on, and agree wholeheartedly with, Andrew's observations about immigrants.  My guess is that most people, including unfortunately many in public office, do not understand that there is no constitutional right for non-citizens to enter the United States. This is our country, and “multiculturalism,” “family reunification,” and other such liberal-left criteria for admission to the United States be damned.  Perhaps if we are able to make that clear to most Americans, they will in turn insist that their elected representatives act accordingly.  Indeed, as Andrew in effect says, we do not want immigrants here who don't want to become “Americans”—in every sense, historically, ethically.

FP: I think this is a crucial point. America is held up to some crazy utopian ideal by everyone in the world and then found wanting and lacking. There is some kind of premise people have that every human being in the world has a constitutional right to enter the United States. This is so bizarre as to leave one speechless. How does a non-American have any relationship to the U.S. Constitution? Incredible.

Mr. May, this is your final comment, summarize your thoughts for us.

May: Non-Americans deserve human rights. But by definition, non-Americans do not enjoy the rights guaranteed to Americans by the U.S. Constitution – essentially a contract between American citizens and their government. 

American citizenship is a privilege that can not be shared with everyone in the world. So those who are American citizens must determine who is eligible to join this unique nation. That is our right. It also is our responsibility, and it is one we must exercise with caution because America's future depends on it. I would argue that, in the 21st century, America citizenship should be offered to a select few who love freedom, who are willing and able to contribute to America's democratic experiment, and who will not hesitate to defend America from her enemies. 

FP: Mr. McCarthy, final word goes to you.

McCarthy: I agree.  Americans believe in freedom, openness, equality and tolerance.  But that is very far from meaning that we are standardless, that we suspend all judgments, and that there is not a distinct cultural “American-ness” to which we have a right to expect adherence as the price of entering our community.  That American-ness is based on a number of core precepts – the right of the people to govern themselves through accountable political leaders, rather than be dictated to by creeds, courts or supranational bureaucracies; equality of opportunity but liberty to achieve according to merit; respect for other cultures and traditions, but liberty to make informed judgments about whether those cultures and traditions are likely to blend or clash with our own; and so on.

Because concepts like freedom and equality are so broad, there are some who undertake to define them in an Orwellian way because they want to change what America is.  As a distinct culture, we need to be more sure and confident about what we are.  Only that will help us strike a sensible immigration policy – one that constantly reinvigorates and enriches us; not one that abets a larger project to undermine our ideals.

FP: Andrew McCarthy, Henry Mark Holzer and Cliff May, thank you for joining  Frontpage Symposium.


Read in FrontPageMagazine


Al Qaeda