Is being Muslim a crime? On the face of it, this question presents a clear contravention of American principles of religious tolerance. There are few principles that unite America, and religious pluralism is one of them. Another is an aversion to thought crime: we decided long ago not to punish beliefs, no matter how repugnant we might find them. However, the dogma of terrorism prevention has entrenched an idea of “radicalization,” which essentially treats the very idea of observant Islam as a criminal act.
A report published in 2007 by the NYPD asserted that “radicalization” was akin to a disease, with a clearly established progression of stages and symptoms ,which can be monitored and interrupted, thereby stopping terrorism before it occurs. Never mind that the report is thin on facts and heavy on conjecture — it has been embraced by the Obama administration, FBI and the Department of Homeland Security. One of the first supposed indications of a propensity toward eventual terrorism is “[w]earing traditional Islamic clothing [and] growing a beard”, as well as frequent attendance at a mosque — essentially any outward signs of Muslim identity. Wearing a beard or maintaining regular prayers are hardly precursors to violence, yet once the suspicions of the NYPD or FBI have been aroused by some outward display of Muslim identity, such as saying “Allahu Akbar” in front of other people or wearing a beard, a presumption of guilt quickly replaces the normal presumption of innocence.
I should take a quick step back to explain the defense of entrapment. Entrapment is a defense to criminal prosecution, available to a defendant when a government agent induces him or her to commit a crime by some dishonesty or coercion. In most courts, the state can overcome an entrapment defense by proving that the defendant was already predisposed to commit the crime. Essentially, what this boils down to is the defendant saying “I would never have been there doing x if the agent had not pushed/lied/convinced me to do so,” while the government responds that the defendant is clearly a bad seed anyway, either a criminal with a record or someone who needed no help arriving at the criminal intent required to achieve a conviction.
Muslims facing counter-terror prosecutions confront different rules than the rest of us. The first: no individualized suspicion is necessary to justify the investigation. Instead, many have been targeted for investigation because they are Muslim and they act like it. Even for those who have not confronted discriminatory prosecution, this regime of guilt by association has led many Muslims to avoid mosques and restrict their contributions to charities.
Additionally, conspiracy can be established without even proving all members of a group knew of the plot: in the case of the Duka brothers in New Jersey, one informant admitted the brothers did not know of the plan to visit Fort Dix. In this sort of climate, the informant frequently creates the “terrorist” plan out of whole cloth and then presents it to the target. Any tactful deference after that is taken as agreement to a plan the target had no part in creating.
Finally, the government can overcome an attempt to assert the entrapment defense by mere suggestion. Because the actual causes of terrorism are so diverse, opaque and difficult to understand, almost any suggestion is as valid as any other. The prosecutor can blame Islam, Muslim identity, adolescent anger or emotional instability and the jury might very well be convinced.
Courts have recognized a supposed predisposition to commit terrorism (overcoming an entrapment defense) even where the government proved only that the defendant was disturbed by Abu Ghraib and that after months of exposure to pictures of torture by American soldiers the defendant wanted “to do something”. No allowance is made for the excruciating time spent during repetitive exposure to these horrible images or the effect of heated rhetoric on young, often naive, men. By suggesting that an individual, almost always a Muslim individual, can be driven to even merely consider violence, the government can effectively prove predisposition in nearly any case.
According to standards in existence before 9-11, informants should be trained on how to avoid entrapment. Those standards are not in place anymore. Neither are the standards which would mandate oversight of informant investigations in NYC. And FBI standards were changed in 2008 to allow race and religious identification to be a factor in opening an investigation. From a single hypothesis that outward Muslim identity is a starting point for terrorism, the US government has upended the traditional belief in freedom of religious expression entirely. By equating Islam with terrorism so directly, law enforcement has made all Muslims objects of suspicion. In turn, some Muslims may well grow suspicious of law enforcement and avoid cooperation. This undermines not only the fundamental American principles of religious tolerance, due process and freedom of speech, but also our nation’s anti-terrorism efforts.
For further reading, check out the NYU Law report Targeted and Entrapped.