As soon as President Obama signed the new Health Care Reform Act into law on March 23, 2010, the Thomas More Law Center, along with co-counsel David Yerushalmi, electronically filed the first federal lawsuit challenging the constitutionality of the Act. The case, Thomas More Law Center v. President Barack Hussein Obama, was filed in federal court in Detroit, Michigan, and it was assigned to U.S. District Judge George Carem Steeh.
At the heart of this lawsuit is the question of whether Congress has the authority under its Commerce Clause power, which essentially allows the federal government to regulate interstate commerce, to mandate that private citizens purchase minimum essential health care coverage under penalty of federal law. At no time in our nation's history has Congress ever sought to exercise such power, nor, for that matter, has it ever assumed that it had the authority to do so. In fact, in 1994, the Congressional Budget Office made the following relevant observation: "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States." http://www.cbo.gov/ftpdocs/48xx/doc4816/doc38.pdf.
Shortly after filing the federal lawsuit, the Thomas More Law Center asked the court to issue a preliminary injunction, seeking to temporarily stop the enforcement of the individual mandate provision of the Act pending the final resolution of all claims asserted in the litigation. Because the question of whether Congress exceeded its constitutional authority by enacting the individual mandate is a purely legal question, the Law Center argued that the court should consolidate the hearing on the motion for a preliminary injunction with a ruling on the merits of the Commerce Clause claim. The court agreed, and the case was argued on July 21, 2010.
On October 7, 2010, Judge Steeh issued his ruling. As an initial matter, it is important to note that in this ruling, Judge Steeh found that the plaintiffs bringing the action--four Michigan residents who did not have health insurance and who objected to the federal government forcing them to purchase such insurance--had established a sufficient constitutional injury to have "standing" to challenge the law and that the challenge was "ripe" for review, that is, the judge was convinced that even though the individual mandate did not take effect until 2014, he should nonetheless decide the matter now for prudential reasons.
Having dealt with these initial jurisdictional issues, Judge Steeh then ruled on the merits of the challenge to Congress' Commerce Clause authority. In doing so, he agreed with the argument advanced by Obama's Department of Justice that the Constitution granted Congress the authority to force private individuals under penalty of federal law to engage in a commercial transaction (purchasing health insurance) that they would otherwise not engage in. Judge Steeh, acknowledging that this was "an issue of first impression," stated, "While plaintiffs describe the Commerce Clause power as reaching economic activity, the government's characterization of the Commerce Clause reaching economic decisions is more accurate." Consequently, under this view of the Constitution, Congress can regulate virtually every aspect of our lives. For example, Congress could quite literally compel us under penalty of federal law to buy certain "healthy" foods, take vitamins, exercise three times a week, or join a health club. And the "decisions" it regulates need not be conscious decisions. Indeed, many young, healthy people have not given any thought as to whether they should purchase health insurance. Yet, Congress can still regulate these economic "decisions" (in reality, non-decisions) under Judge Steeh's ruling and President Obama's view of the Constitution.
Suffice to say, this decision is ripe for reversal, and the Thomas More Law Center will be filing its appeal in the very near future.
Muise is the senior trail counsel for the Thomas More Law Center, one plaintiff challenging the new federal healthcare law known as the Patient Affordability and Protection Act.
October 4, 2010 – Washington, DC: A federal judge in the U.S. District Court in the District of Columbia has denied a motion to dismiss complaints by five former clients of the Council on American-Islamic Relations (CAIR).
CAIR is a Muslim organization previously named as a Muslim Brotherhood-Hamas front group by the FBI and U.S. Attorney’s Office in the federal criminal trial and conviction of a terrorist funding cell organized around one of the largest Muslim charities, the Holy Land Foundation, which raised funds for violent jihad on behalf of Hamas.
CAIR had asked federal court judge Paul L. Friedman to dismiss the fraud cases on several grounds, but the judge refused CAIR’s request in its entirety.
(Judge Friedman did dismiss one duplicative claim of consumer fraud based on D.C. law because he allowed an identical claim under Virginia law, ruling that Virginia law applied in the case).
The five former clients had earlier this year filed two separate lawsuits in federal court alleging common law and statutory fraud, breach of fiduciary duty, and intentional infliction of emotional distress against CAIR, a self-described Muslim public interest civil rights law firm. These two lawsuits follow an earlier lawsuit which had also alleged that CAIR’s fraudulent conduct amounted to racketeering, a federal RICO crime. In that case, the court dismissed the RICO counts concluding that CAIR’s conduct as alleged was fraudulent but not a technical violation of RICO.
The two new federal civil complaints were filed in the federal district court for the District of Columbia on January 6, 2010, and served on January 13, 2010.CAIR filed its motion to dismiss on February 26, 2010, and the matter was fully briefed by May 15, 2010.
Both lawsuits arise out of the same facts and as a result the court has consolidated the two cases.
The lawsuits allege that Morris Days, the “Resident Attorney” and “Manager for Civil Rights” at the now defunct CAIR-MD/VA chapter in Herndon, Virginia, was in fact not an attorney and that he failed to provide legal services for clients who came to CAIR for legal representation. CAIR knew of this fraud and purposefully conspired with Days to keep the CAIR clients from discovering that their legal matters were being mishandled or not handled at all.
While attorney David Yerushalmi represents the five plaintiffs in these two lawsuits, three of whom are Muslim Americans, the complaints allege that according to CAIR internal documents, there were hundreds of victims of the CAIR fraud scheme.
According to the complaints, CAIR knew or should have known that Days was not a lawyer when it hired him. But, like many criminal organizations, things got worse when CAIR officials were confronted with clear evidence of Days’ fraudulent conduct. Rather than come clean and attempt to rectify past wrongs, CAIR conspired with Days to conceal and further the fraud.
To this end, CAIR officials purposefully concealed the truth about Days from their clients, law enforcement, the Virginia and D.C. state bar assoiations, and the media. When CAIR did get irate calls from clients about Days’ failure to provide competent legal services, CAIR fraudulently deceived their clients about Days’ relationship to CAIR, suggesting he was never actually employed by CAIR, and even concealed the fact that CAIR had fired him once some of the victims began threatening to sue.
“The evidence has long suggested that CAIR is a criminal organization set up by the Muslim Brotherhood and Hamas to further its aims of stealth Jihad in the U.S.,” Mr. Yerushalmi said referring to the fact that CAIR has been named by the federal government as an unindicted co-conspirator in the Holy Land Foundation terror financing trial.
In addition, several of CAIR’s top executives have been convicted of terror-related crimes. As a result, the FBI has publicly announced that it has terminated any outreach activities with the national organization, which bills itself as “America's largest Muslim civil liberties and advocacy organization.”
“As it turns out, CAIR is America’s largest Muslim criminal organization whose criminal activities know no bounds,” Yerushalmi continued.
“According to the facts as carefully laid out in both complaints,” Yerushalmi explained, “CAIR has engaged in a massive criminal fraud in which literally hundreds of CAIR clients have been victimized and because of the CAIR cover-up they still don’t realize it. The fact that CAIR has victimized Muslims and non-Muslims alike demonstrates that CAIR is only looking out for CAIR and its ongoing effort to bilk donors out of millions of dollars of charitable donations thinking they are supporting a legitimate organization.”
The complaint also alleges that in addition to covering up the fraud scheme, CAIR forced angry clients who were demanding a return of their legal fees to sign a release that bought the client-victims’ silence by prohibiting them from informing law enforcement or the media about the fraud. According to the agreement, if the “settling” clients said anything to anyone about the fraud scheme, CAIR would be able to sue them for $25,000.
This enforced code of silence left hundreds of CAIR’s victims in the dark such that to this day they have not learned that Days was not an attorney and that he had not filed the legal actions on their behalf for which CAIR publicly claimed credit. Days has since died of a lung complication.
CAIR’s motion to dismiss argued that the failure to name Morris Days and CAIR-MD/VA as “indispensable” party-defendants was grounds to dismiss. The court saw through this ruse by noting that Mr. Yerushalmi had pointed out that Days was dead.Insofar as there was no probate of any estate, Days likely died intestate and poor. Similarly, CAIR-MD/VA, as alleged in the complaints, was shuttered and rendered defunct by CAIR to try and cover-up the crime. Unsuccessfully, CAIR’s motion to dismiss had strategically and dishonestly ignored those facts.
CAIR also argued that it could not be held liable for Days’ criminal behavior. The Court dismissed this defense as well pointing out that there was more than enough evidence to show Days acted for and on behalf of CAIR.
Over a lengthy 24-page opinion, the Court surgically dissected and dismissed CAIR’s arguments for dismissal on all counts.
Mr. Yerushalmi made clear that “the evidence in this case will finally put to rest the myth that CAIR is a legitimate Muslim American civil rights organization when in fact it is little more than an agent of the Muslim Brotherhood and a recipient of huge donations from operatives of the Organization of Islamic Countries (OIC).”
Mr. Yerushalmi concluded, “Why this organization is allowed to exist as a non-profit, tax-exempt organization at all is mind-boggling.”
For those interested in a fact-intensive tutorial on CAIR’s foreign government agency connections in the context of possible violations of the Foreign Agent Registration Act, the same law used recently to arrest and deport a large sleeper cell of Russian spies, they need only visit www.CAIRObservatory.org, where the actual documents evidencing potential crimes are on full display for the reader to judge for him or herself.
About David Yerushalmi, Esq.:David Yerushalmi has been practicing law for more than 26 years. He is a litigator specializing in securities law, public policy relating to national security, and public interest law. Mr. Yerushalmi is licensed and practices in Washington D.C., New York, California, and Arizona and currently serves as General Counsel to the Center for Security Policy in Washington, D.C., one of the nation’s leading national security think tanks founded by former Reagan administration official Frank J. Gaffney, Jr., and has been Of Counsel and Senior Legal Advisor for Policy Affairs to the Institute for Advanced Strategic & Political Studies (Potomac, Maryland) since 1988.
For a copy of the court’s opinion, click on the pdf link above.
For earlier reports and copies of the pleadings, gohere.
At the recent press conference on Team B II’s report,Shariah: The Threat to America, a reporter from UPI asked the following question:
I’ve always thought Shariah was a body of Islamic religious law much like Jewish Halacha, governing peoples’ personal affairs. So I’m wondering, what is it in your view? What is Shariah, and why, specifically, is it a threat to our country?
Below, you can see my response.
This line of argument follows a long tradition of Muslim Brotherhood agents in the West and other apologists for the brutality of Shariah. For example, just recently, many of the press reports announcing that England has recently granted Shariah courts on its home soil formal authoritative status as a recognized arbitration panel concluded identically as follows: “Inayat Bunglawala, assistant secretary-general of the Muslim Council of Britain, said: ‘The MCB supports these tribunals. If the Jewish courts are allowed to flourish, so must the sharia ones.’”
Consider this, then, a tutorial on why the active and purposeful pursuit of Shariah in the U.S. has implications for the federal criminal law of sedition (notably Title 18, Section 2385 of the U.S. Code) and why Jewish law and Christian dogma or Catholic canon do not. Specifically, I present here a brief discussion of whether such application of federal criminal law to Shariah would have an impact on the practice of Jews who observe Jewish law and the private adjudication of religious and commercial matters before a bais din or Jewish court of law (or, for that matter, Christians or Catholics submitting arbitral matters before private ecclesiastical boards or panels).
To begin, by Shariah we mean the authoritative and authoritarian corpus juris of Islamic law as it has been articulated by the recognized Shariah authorities over more than a millennium. The term Shariah as used herein, therefore, does not refer to a personal, subjective, pietistic understanding of the word or concept of Shariah. This latter understanding of the word Shariah is closer to its literal meaning in Arabic without any of the legalistic connotations it has developed as an authoritative institution in Islamic history; as it is currently practiced in such countries as Iran, Saudi Arabia, and Sudan; and as it is meant when referred to in the various laws and constitutions of most Muslim countries.
I have written extensively on the question of the practice or advocacy of Shariah by Shariah authorities as a violation of the primary federal sedition statute (i.e., 18 U.S.C. § 2385) on the grounds that throughout the long 1200-year history of the development of Shariah, and across all five major schools of Shariah jurisprudence, five salient facts are embedded in a deep consensus among all authoritative Shariah authorities:
The telos or purpose of Shariah is submission. Shariah seeks to establish that Allah is the divine lawgiver and that no other law may properly exist but Allah’s law.
Shariah seeks to achieve this goal through persuasion and other non- violent means. But when necessary and under certain prescribed circumstances the use of force and even full-scale war to achieve the dominance of Shariah worldwide is not only permissible, but obligatory. The use of force or war is termed Jihad.
The goal of Shariah is to achieve submission to Allah’s law by converting or conquering the entire world and the methodology to achieve this end (by persuasion, by force and subjugation, or by murder) is extant doctrine and valid law by virtue of a universal consensus among the authoritative Shariah scholars throughout Islamic history.
The doctrine of Jihad is foundational because it is based upon explicit verses in the Qur’an and the most authentic of canonical Sunna and it is considered a cornerstone of justice: until the infidels and polytheists are converted, subjugated, or murdered, their mischief and domination will continue to harm the Muslim nation. And,
Jihad is conducted primarily through kinetic warfare but it includes other modalities such as propaganda and psychological warfare.
Much of my work in this area has drawn upon original Shariah-based works and the academic scholarship relating to that body of work, but also includes the scholarship of others. I especially owe much to Stephen Coughlin (Major U.S. Army Reserves, military intelligence) and his work for the Joint Chiefs while assigned to USCENTCOM.
Because Jihad necessarily advocates violence and the destruction of our representative, constitution- based government, the advocacy of Jihad by a Shariah authority presents a real and present danger. This is sedition when advocated from within our borders; an act of war when directed at us from foreign soil.
This is especially true because a Shariah authority commands the absolute allegiance of the Shariah faithful Jihadist. As Professors Frank Vogel and Samuel Hayes explain, both distinguished professors at Harvard University and proponents of Shariah-compliant finance, Shariah is not some personalized, subjective, pietistic approach to Islam but an institutionalized legal-political-normative doctrine and system:
Islamic legal rules encompass both ethics and law, this world and the next, church and state. The law does not separate rules enforced by individual conscience from rules enforced by a judge or by the state. Since scholars alone are capable of knowing the law directly from revelation, laypeople are expected to seek an opinion (fatwa) from a qualified scholar on any point in doubt; if they follow that opinion sincerely, they are blameless even if the opinion is in error.[1](Emphasis added.)
Shariah, as it is described on its own terms, is fundamentally and critically unlike Jewish law and any form of Christian canon or ecclesiastical law. Specifically, because neither Jewish law (halacha) nor Christian canon or ecclesiastical law obligates the Jew or Christian, respectively, to violently impose theo-political tenets in lieu of the Constitution, there is simply no basis to apply the laws of sedition to the application of Jewish law or Christian dogma within private religious or commercial contexts. While Jews and Christians may advocate and petition their government for laws that reflect their moral and theological worldview (as may Muslims or atheists), neither Jewish law nor Christian dogma permits the forceful imposition of a theocracy in lieu of representative government or the replacement of our constitution with theocratic legislation.
The contrast between Jewish law and Shariah makes this point vividly. After the fall of the Jewish Commonwealth and the dispersion of the Jews into lands ruled by non-Jews following the Roman destruction of the Second Holy Temple (the current Exile, which includes the modern State of Israel), Talmudic and Jewish legal authorities developed several fundamental principles of Jewish law. The first is dina d’malchuta dina – or, the law of the land in commercial matters is the law (see, e.g., BABYLONIAN TALMUD, Baba Kama 113a, Baba Basra 54b, Gittin 10b, and Nedarim 28a). In other words, the sovereign’s secular commercial laws control Jewish law.
The second post-Exilic legal ruling which separates Jewish law from traditional and still quite contemporary Shariah is that Jewish law on its own terms no longer grants jurisdiction over criminal matters or any form of civil or administrative penalty to a Jewish bais din or court. At best, a Jewish court established by the community may render decisions about money judgments for actual damages as a kind of private arbitration (see, Rabbi Joseph Caro, SHULCHAN ARUCH, Choshen Mishpat, Chapter 1:1-2.) Thus, Jewish law does not allow a bais din, even in modern Israel, to issue a ruling that could have any penal or even compensatory function for non-money damages – such as embarrassment or shame.
It is also worth noting that there is no Jewish legal or normative doctrine for taking lives – others’ or one’s own – as a martyr in fulfilling Jewish law. Specifically, Jewish law requires a Jew to violate Jewish law and to follow the law of the land rather than suffer death except in three cases[2]: (i) if the local law requires a Jew to murder someone (fighting and killing in a legal war of the nation is of course not murder so Jews have no basis for resisting a military draft); (ii) if the local law requires the Jew to engage in some sexual perversion (incest, rape, or homosexuality); and (iii) if the local law requires the Jew to worship idols. But even in these three cases, a Jew must simply allow himself to be punished or martyred by the authorities for his refusal to violate one of these fundamental sins. That is, Jewish martyrdom is a passive act of resistance. There is no concept of a Jewish martyr who dies murdering his enemy.
Shariah turns the Jewish legal doctrine of martyrdom on its head. As noted above, Shariah demands that its law dominate and it is a fundamental crime under Shariah for a Muslim to adhere to a secular law that does not make clear that Shariah is the “highest law of the land”. If a Muslim adheres to a secular constitution deemed the “highest law of the land”, even if the secular constitution and the laws of the land allow for Shariah adherence, the Muslim is considered a Mushrik or polytheist – subject to capital punishment because he has implicitly acknowledged a law giver higher than Allah.[3] Moreover, according to Shariah, a Muslim is a martyr when he dies killing/murdering the infidel. There is nothing passive about the act which awards the Jihadist this appellation.
And, returning to the Jewish legal concept of “the law of the land is the law”, this Jewish legal doctrine is true according to most authorities precisely because a legitimate sovereign acting as a representative of its people passing laws for just and peaceful relations is participating itself in the divine plan for human existence. Jewish law recognizes this divinity and does not seek to deligitimatize secular or foreign law by rendering it, as Shariah does, an affront and illegal challenge to supreme divine law and punishable by death.
Further, the only method available to the contemporary bais din to enforce its rulings is by the imposition of a kind of communal excommunication (i.e., herem, niddui, or nezifah).[4] As a practical matter, because the post-Exilic Jewish legal structure is not hierarchical, no bais din can force its ruling on any other and this leaves even this enforcement action as little more than local, voluntary censure.
To a Shariah-adherent Muslim, however, contemporary Shariah has lost none of its political clout and continues to have the power of state action. Thus,
Since Islamic law reflects the will of [Allah] rather than the will of a human lawmaker, it covers all areas of life and not simply those which are of interest to a secular state or society. It is not limited to questions of belief and religious practice, but also deals with criminal and constitution (sic) matters, as well as many other fields which in other societies would be regarded as the concern of the secular authorities. In an Islamic context there is no such thing as a separate secular authority and secular law, since religion and state are one. Essentially, the Islamic state as conceived by orthodox Muslims is a religious entity established under divine law.[5]
To conclude, it should be clear with but a cursory analysis, because Shariah calls for the destruction of our constitutional republic and for our conversion, subjugation, or murder it is criminal. There simply is no basis to suggest that either Judaism or Christianity, or in fact any other well-known religious dogma or doctrine, falls within the statutory coverage of our extant laws criminalizing sedition.
References
[1] Frank E. Vogel & Samuel L. Hayes, III, Islamic Law and Finance: Religion, Risk, and Return 23 (1998).
[2] Excepting a case of general oppression of the Jewish people qua Jews or the requirement for a Jew to publicly desecrate Jewish law because he is a Jew. In these two cases, a Jew is also required to passively resist violating Jewish law, even to the point of suffering death. See, generally, Maimonides, MISHNE TORAH, Chapter 5 in the Laws of the Foundation of the Torah.
[3] See, e.g., the newly minted constitutions of Iraq and Afghanistan. Crafted by U.S. “Islamic law scholars” who insisted on the importance of inserting a Shariah-supremacy clause, these constitutions provide explicitly that no state law may contravene Shariah.
[4] See, e.g., Maimonides, MISHNE TORAH, Chapter 6 of the Laws of Talmud Torah, Halacha 14; Rabbi Joseph Caro, SHULCHAN ARUCH, Choshen Mishpat, Chapter 334:43.
[5] Mervyn K. Lewis & Latifa M. Algaoud, Islamic Banking 24 (Edward Elgar ed., 2001). The authors of this important text are two prominent advocates of Shariah-compliant finance, one a leading professor of finance in Australia and the other a senior official in the Bahrain Ministry of Finance and National Economy. While the authors attempt to “tone down” this absolute statement of Shariah by suggesting that as a practical matter Shariah has in fact lived side-by-side with secular law and in some cases even incorporated it into Shariah, they honestly but almost unnoticeably add the following to their effort to soften Shariah: “The continuation of a custom of a particular place or community is allowable under Islamic law, and may in fact be assimilated into the law, as were many of the customs of the Arabs. To be permissible a custom must not be contrary to revealed injunctions, and this point remains highly controversial in some areas, for example the treatment of women.” Id. at 25 (emphasis added). What the authors mean by “revealed injunctions” are any legal ruling of Shariah authorities where there is consensus among the authorities that the ruling is based on an explicit verse in the Qur’an or Sunna. What is intriguing is that of all of the fixed unalterable laws of Shariah, the authors are concerned about the treatment of women. While many certainly argue that Shariah demeans and subordinates the Muslim woman, one might have thought that the fixed death penalty for an apostate (i.e., a Muslim who wishes to leave Islam) or the infidel (the non-Muslim) would have captured their concern sufficient for articulation. Apparently, it is not, in the authors’ views, “highly controversial” among the Shariah faithful.
Moderate Muslims Must Confront Institutional Shariah
In "What Is Moderate Islam?" (op-ed, Sept. 1), only Tawfik Hamid speaks to the role of an institutionalized Islam. He clearly designates extant and authoritative Shariah as the institutional source of what is wrong with Islam today. The problem with the other five voices on the page is that they ignore the foundational institutional role Shariah has played in the life of Islam.
Even the sage of Islamic history, Bernard Lewis, is really only telling us how the political leadership of the historical Islamic Caliphate often ignored Shariah for personal reasons or political expediency. No one gainsays the obvious historical fact that Muslim leaders—both those of antiquity and of a more contemporary period—have diced and sliced the hegemonic and harsh rulings of Shariah in an effort to exploit the institutional hold Shariah has over most Muslims while applying it in a rather subjective or exploitative fashion. But this says nothing about what institutional Shariah tells the people through the voices of the authoritative Shariah scholars regarding apostasy or the infidel or jihad.
Akbar Ahmed confronts the reality of Shariah as well—he terms Shariah adherents as literalists. He notes properly that they are a present reality in the Islamic world, but what is lacking in his analysis is his failure to weigh the potential for one or more of these realities to dominate the landscape.
The problem is that Shariah controls essentially all of the Islamic institutions in the world. The Sufi mystic is a marginal reality—at least the non-Shariah Sufi. The modernists are fast losing ground because they seem to refuse to confront Shariah head-on and would rather ignore it or deny it has any historical and theological legitimacy. Only Mr. Hamid seems to understand what the Muslim world confronts in its internal struggles.
David Yerushalmi
Washington
Muslims in many Muslim countries have the excuse that their lives and those of their families would be put at risk if they were to speak out against the radicals in their midst. What exactly is the excuse for the complacency of the normative American Muslim? While the American Muslim might suffer somewhat socially or economically within the Muslim community, the size and diversity of the U.S. offers so much opportunity that the average Muslim here is completely without excuse. While there are a few brave American Muslims who speak out against radical Islam, the vast majority of American Muslims are deafeningly silent.
I write in response to Naajid Nawaaz’s oped in Saturday’s WSJ (pasted below) in which he attempts to draw a distinction between Islam and Islamism. While there may indeed be such an argument if “Islam” means any given Muslim’s personal, subjective approach to the divine and “Islamism” means Sharia-adherence and –advocacy, this is not the argument Nawaaz presents. In fact, Nawaaz never really tells us what he means except to slide into an argument that Islamic “traditionalists,” impliedly devout and even Shariah-adherent, reject the political and hegemonic aims of the “Islamists.”
In other words, Nawaaz wants us to believe that there is a good “traditionalist” Shariah and a bad, modern (20th century) “Islamism” that has perverted Shariah by its demand to control the political institutions of state power.
Nawaaz seeks to prove that this “traditionalist” Shariah-adherence never sought political power by calling upon what he calls “the social sciences.” You know you’re in trouble when the answer lies in the “facts” of “social science,” notorious for its inability to discover any truth other than there is no truth.
So, Nawaaz tells us that these social sciences demonstrate that throughout the more than millennium of a hegemonic Islamic empire known as the Caliphate, only rarely was Shariah imposed as state law and typically only used as a rationale for religious wars. Even if this statement were entirely true, and it is not, it would simply mean that Muslim political leaders are as subject to debauchery and the exploitation of religious fervor as the next tyrant. It does not tell us what Shariah demands.
Indeed, even Nawaaz concedes that there were times when Shariah was state law. The question of course is how could that be if Shariah demanded as a theoretical matter to be separated from the political sphere. Does the Islamic traditionalist’s Shariah adopt the extant Christian doctrine of “render unto Caesar” or does it not? Anyone who would argue publicly that doctrinaire “traditionalist” Shariah demands anything other than political power in a hegemonic Caliphate either knows literally nothing of Shariah or is engaged in deception and propaganda. All one needs to do is open up the most authoritative text on Islamic law available in English today, Reliance on the Traveler. It has the imprimatur of Al-Azhar University in Egypt, the Harvard of Shariah. Turn to the Book of Justice—where else? Once there, turn to the sections on Jihad. There you will learn the when, where and how of the law. It isn’t what Nawaaaz says it is by a quite lengthy stretch.
Moreover, the argument can be made persuasively that only since Ataturk’s now failing Turkish experiment to secularize the remnants of a dismantled Ottoman Empire and the manifestly dismal autocracies created by the Muslim nationalists who took power after the end of colonial rule in the Near East and South Asia was there any hope of defanging Shariah and its lust for political, indeed, hegemonic political power. That experiment in secularism is failing in Turkey as the Kemalists are on the run and it is also collapsing in the rest of the Muslim world as the “traditionalists” flex their muscles in Iran, Pakistan, Afghanistan, Iraq, the Gulf region, Gaza, Hezbollah-controlled Lebanon, Egypt, North Africa, East Africa, Indonesia, the Philippines, Bosnia, Chechnya, and even in Europe. It is no coincidence that when given a chance to really vote, whether at the polls or in surveys, Muslims in the Muslim world overwhelmingly embrace a very strict and very political Shariah. (See World Public Opinion Poll: http://www.worldpublicopinion.org/pipa/pdf/apr07/START_Apr07_rpt.pdf.) This table speaks louder than Nawaaz’s assertions:
If Nawaaz wants to make an argument that there is an “Islam” residing in the hearts of hundreds of millions of individual pietistic Muslims embracing a kind of Islamic version of Protestantism, fine. But the “traditionalists” within the islamic religion go back to Mohammed and the Four Righteous Caliphs and the Shariah law which developed out of a very political, very militaristic tradition. That political, imperialistic tradition was codified within the ijma (consensus) of all of the legal schools we know as Shariah. “Traditionalist” Muslims know this quite well, which suggests a rather dubious motive behind Nawaaz’s subterfuge.
August 9, 2010 – New York, New York: When the American Freedom Defense Initiative sought to run a bus banner advertisement on New York Metropolitan Transit Authority buses (available here), the MTA decided it was “not appropriate.”Our client, Pamela Geller, director of AFDI, asked MTA through the MTA advertising agency, CBS Outdoor, what was the problem with the advertisement as proposed.The answer: the plane shown flying in the TwinTowers improperly suggested a link between the proposed Ground Zero Mosque at the heart of a heated national public debate to the Islamic terrorists who attacked America, and specifically New York.Ms. Geller attempted to revise the ad to satisfy the P.C. police at the MTA, but to no avail.
The Law Offices of David Yerushalmi, P.C., joined by Robert Muise, senior trial counsel to the Thomas More Law Center, filed suit against the MTA in federal court in New York on Friday, August 6, 2010, for violating AFDI’s and Ms. Geller’s Free Speech rights.That same day, David Yerushalmi issued this statement:
The complaint against the New York Metropolitan Transportation Authority has now been filed. It alleges violation of the American Freedom Defense Initiative’s(and Pamela Geller’s and Robert Spencer’s) Free Speech rights under the First & Fourteenth Amendments to the U.S. Constitution.
In essence, and it is laid out clearly in the complaint (available here) with clear illustrations in the exhibits, the MTA decided that it was going to accept the “viewpoint” of Imam Rauf and his Islamist co-conspirators who have proposed the mosque – to wit, that their plan to develop the Ground Zero Mosque has nothing to do with marking the “victory” of the destruction of human life and property on 9-11.Literally, the MTA made it its business to decide which of many viewpoints it would deem politically correct speech for advertisements on its buses.In so doing, the MTA refused to run a bus ad critical of the Ground Zero Mosque literally because the ad did not accept Rauf’s deceit that this obscenity is “brotherly” and “interfaith outreach.” The only outreach our clients see is a slap in the face of the 9-11 families and those New Yorkers whose memories remained charred.
What makes this jihad against free speech so egregious is that the MTA has run any number of controversial religious and political ads without batting an eyelid. But as soon as the Shariah-faithful cowed Mayor Bloomberg and the MTA into dhimmi-like submission, the First Amendment to the Constitution gave way to Shariah’s blasphemy laws. How long before the Mayor’s office begins issuing fatwas against those who dare counter the “noble and peaceful outreach” narrative?
Mr. Mayor and your colleagues at the MTA and the Landmark Commission: New Yorkers will not forget 9-11 and we will not be cowed into submission or silence. You might not want to hear our voices, but the federal courts will require you to listen. You claim the mantle of the Constitution as a basis for supporting a Shariah-Islamist mosque at Ground Zero, yet the MTA—a government agency of the City—cavalierly denies “infidels” freedom of speech. Enough is enough.
By Monday, the complaint and summons was served on the MTA, together with a proposed Order to Show Cause requiring the MTA to stand before a federal judge to explain how the MTA decision was not a violation of the First Amendment.By mid-afternoon, the MTA and CBS Outdoor had thrown in the towel: the original Ground Zero ad would run.
While the MTA claimed that they had never nixed our clients’ advertisement, blaming it on CBS Outdoor, the emails and evidence suggest otherwise.Indeed, the email from CBS Outdoor’s general counsel, David Posy, evidences who in fact determines which advertisements run on MTA buses:
From: Posy, David H
Sent: Monday, August 09, 2010 5:03 PM
To: david.yerushalmi@verizon.net
Cc: jhenly@mtahq.org
Subject: American Freedom Defense Initiative
I understand that our business people have spoken to your client who asked that I communicate directly with you. I would like to confirm that we have been directed by the MTA to take the ad that was the subject of the suit filed by AFDI against the MTA in accordance with the terms of the Agreement dated 7/20/10, subject, to placing an appropriate legend on it that says; “Paid for by the American Freedom Defense initiative.”
David H. Posy
Senior Vice President/General Counsel
North American Operations
CBS Outdoor
405 Lexington Avenue
New York, NY10174
Tel: (212) 297-6508
Fax: (212) 297-6552
Mr. Yerushalmi noted: “This is a victory not just as a defense of the First Amendment. But also a victory against the Bloomberg-style bullying meant to shut down full-throated public debate over the connection between the existential jihad threat this country faces and Islamic terrorists who engage in both violent and stealth jihad to impose Shariah on the infidel.
The legal documents filed in the federal lawsuit are all available here.
About David Yerushalmi, Esq.
David Yerushalmi has been practicing law for more than 26 years. He is a litigator specializing in securities law, public policy relating to national security, and public interest law. Mr. Yerushalmi is licensed and practices in WashingtonD.C., New York, California, and Arizona and serves as General Counsel to the Center for Security Policy in Washington, D.C., one of the nation’s leading national security think tanks founded by former Reagan administration official Frank J. Gaffney, Jr.
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