IslamicLawBlog

The Wrath of Khan

2011-12-09T08:40:00.000-06:00

Tuesday, December 06, 2011

# posted by FGFM : 10:18 AM

Via our Scandinavian correspondent, Lubna Qureshi:

A few weeks ago, I reviewed Stephen Fry’s tribute to Christopher Hitchens. When I came across George Eaton’s own review afterward, I realized that he had caught an important moment missed by me:

“’More Bosnia, less Iraq,’ he [Hitchens] wrote in a text message to Fry. It felt as if he was trying to edit his own obituary. As he told the New Statesman, though he is unrepentant about his support for the invasion of Iraq and believes that history will vindicate him, he does not want to be ‘defined by it’. His reference to Bosnia was an attempt to place his support for the war in the context of a wider commitment to anti-totalitarianism. It was also a war that saved Muslim lives, rather than ended them.”

http://www.newstatesman.com/ideas/2011/11/hitchens-remembered-polemicist

If Hitchens feels guilty about his endorsement of the Iraq War, then he should extend that guilt to his support for our interventions in Afghanistan and Iraq. Recently, I read an intriguing article that suggested President George W. Bush might have incited genocide against Muslims in Afghanistan as well as Iraq. The author is Professor Liaquat Ali Khan, a scholar of international law and human rights at the Washburn University School of Law. Khan is also a native of Pakistan. I decided to interview him for Hitchens Watch.

http://www.counterpunch.org/2006/09/19/presidential-incitements-to-war-crimes/

Hitchens Watch: Two months ago, Hitchens wrote the following: “On September 12, 2001, the United Nations Security Council unanimously passed Resolution 1368, condemning the attacks on American soil and asserting the universal right of defense. The terms of the resolution explicitly state that those found to be ‘supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable’.” Does the universal claim of self-defense justify the American military campaigns in Afghanistan and Pakistan?

http://www.slate.com/articles/news_and_politics/fighting_words/2011/09/pakistan_is_the_enemy.html

Khan: The classical concept of self-defense, which is enacted in the UN Charter, which gives the right of self-defense to a nation-state. Now, under Article 51 of the UN Charter, the right of self-defense has several constraints. For example, it says that the right of self-defense can be exercised only if an armed attack occurs. So, there is the question of sequence. The second is that the temporal proximity between the attack and the exercise of self-defense should be very close. For example, if somebody attacks me, I cannot go home and think about it and then three hours later, come back to exercise the right of self-defense. So, there is a temporal proximity. There is spatial proximity. And then, the duration of the right of self-defense, is also under Article 51, is limited. That you should inform the Security Council that the armed attack has occurred, and then the Security Council takes over from the nation-state that is trying to defend itself. Now, this is the classical notion of the right of self-defense. What I have argued in my book, called The Extinction of Nation-States, that this classical right of self-defense is undergoing a tremendous transformation. And we are in the midst of making a new rule of the right of self-defense. And I think the US is trying to construct that rule. I don’t know if the US would allow this construction to every nation-state, but definitely it is using a new concept, and it is exercising on that new concept. And under the new concept that the US is using, I think the temporal proximity and spatial proximity both have been dispensed with. So, that is a big change that the United States says: “We can exercise our right of self-defense without any temporal constraint.” For example, the 9/11 attack occurred, and we can still exercise the right of self-defense because these are the same so-called terrorists who are planning another attack. And of course, the spatial proximity is that the right of exercise can be done anywhere in the world, that we are not confined to the United States if somebody comes over here, attacks, and then, we exercise this right of self-defense. We can exercise the right of self-defense in any country on this planet, and maybe even in space, if the technology allows. So, this is the fundamental change in the classical concept of self-defense, no temporal constraint, no special constraint, and number three, no reporting to the Security Council, that to continue to exercise this right of self-defense without seeking approval from the Security Council. Now, I don’t know if the US would allow this right of self-defense to other states. I doubt it.

Hitchens Watch: Was Osama bin Laden just sheltered by fundamentalists within Pakistani intelligence? Were Presidents Pervez Musharraf and Asif Zardari also aware of his presence in Pakistan?

Khan: In my opinion, I am not sure if Zardari knew that Osama bin Laden was in Abbottabad. This is my opinion. I mean I don’t have any facts to support it or to contradict it. I think my best intuition is that probably some people in the Pakistani intelligence service, ISI [Inter-Services Intelligence], knew and protected Osama bin Laden. But I am not sure if the high command actually was aware of it. And even if they were aware of it, I think maybe there was some sort of plausible deniability. You know plausible deniability. I mean that’s the doctrine that the CIA has used while giving information to the president, where the president can deny that they had information, but nevertheless, they do. So, I think that plausible deniability has become probably universal spy doctrine, that the spy agencies, they tell their superiors, but in a convoluted way, so that the high command can say “we don’t know” or can express surprise. So, I think unless that was being practiced, and I won’t rule it out, I think somebody has to know.

Hitchens Watch: In the July 2011 issue of Vanity Fair magazine, Hitchens denied that the raid of bin Laden’s home violated Pakistani sovereignty: “Well what f-ing sovereignty? What f-ing sovereignty were these people ‘protecting’? It’s bad enough that the Pakistani army lacks sovereignty over the tribal area and can’t control it when the country’s own life depends upon it. But that bin Laden was living in the Pakistani equivalent of Annapolis, MD.” If the Pakistani government knew of the raid of bin Laden’s home in advance, was Pakistani sovereignty really violated?

http://www.vanityfair.com/politics/features/2011/07/osama-bin-laden-201107

Khan: Well, I think logically these are two separate questions because sovereignty means that a nation-state has control over the events within its national territory, therefore territorial sovereignty. I mean I think the word territorial sovereignty is a better descriptive, which means that the nation’s territory is sovereign in a sense that other countries are excluded from entering into the territory, not only entering but attacking the targets within the territory. And so I think the question of sovereignty is a more abstract legal question. It’s a doctrine of exclusion, that every other nation-state is excluded from entering the territory of Pakistan, for example, including its air space, without the permission of the government. Now, whether you can effectively control your territory is a separate question because I think no nation-state, we have close to 200 nation-states, I think most of them would be vulnerable to US invasion because they don’t have the sufficient resources to stop the United States from entering and attacking the targets within their countries, except maybe twenty countries, even let’s say fifty countries, who can put up some resistance. But I think 150 countries are open to invasion from stronger countries. So, could we say that 150 countries do not have sovereignty? No, we wouldn’t say that. We would say that legally they are sovereign, but they don’t have the resources to protect their territory against stronger states. It’s just like human beings. I have a right to physical security, but can I protect myself against every one in the United States? No. I think there would be millions of people who are much stronger than me, and if they want to attack me, I would really be harmed. So, I think the concept of sovereignty, and the resources to protect it, are two different questions, and I think Hitchens is confusing the concept with the resources needed to protect sovereignty. I think the international legal system works because the concept is strong, not because nation-states can actually protect themselves. And social structure is maintainable not because every person can protect herself or himself, but because all people agree that we should not attack each other.

Hitchens Watch: In the same article, Hitchens went on to write: “If the Pakistani authorities had admitted what they were doing, and claimed the right to offer safe haven to al-Qaeda and the Taliban on their own soil, then the boast of ‘sovereignty’ might at least have had some grotesque validity to it. But they were too cowardly and duplicitous for that. And they also wanted to be paid, lavishly and regularly, for pretending to fight against those very forces.” Does the Pakistan government really have any interest in opposing the Taliban?

Khan: Well, I think if Pakistan is sovereign, which it is, that also means positional sovereignty, and that means that the nation-state can make its decisions without foreign influence. Now, of course, the United States wants Pakistan to eliminate the Taliban, particularly those who are fighting the US. Now, the question is: does Pakistan have a similar national interest in eliminating the enemies of the United States? You cannot presume, as Hitchens does, that any person who’s the enemy of the United States is also the enemy of Pakistan. That doesn’t fit logically because there will be a lot of groups who will oppose the United States, and Pakistan will either be neutral or even more friendly to that group. Take Iran. Iran and the United States don’t get along. The United States wants to harm Iran, but that doesn’t mean that Pakistan should also try to harm Iran. In fact, Pakistan could be very friendly to Iran, just like the United States is very friendly to Israel, even though a lot of Muslim countries are not friends with Israel. I think the United States should allow Pakistan to make its own decisions, and determine that whether Pakistan wants to engage in a civil war with its people. Remember the Taliban is only one name of a very large group called Pashtuns. Even though the Taliban do not represent all Pashtuns, nevertheless, Pashtuns have a lot of sympathy for the people who are fighting against the US occupation in Afghanistan. So, to say that the Pakistanis don’t fight the Taliban and they are playing a double game, I think all these arguments are rooted in false logic. I don’t think it is in the interests of Pakistan to engage in a fight with the Taliban in Pakistan. I think Pakistan has chosen to negotiate with them, and that is the right course.

Hitchens Watch: Why did Pakistan support the Taliban in the very beginning? I have read that the Pakistanis thought that winning influence in Afghanistan would give them “strategic depth”, but I not understand what that concept means.

Khan: Strategic depth is a doctrine used to explain the India/Pakistan conflict, and strategic depth could either mean geographical depth or the depth of bringing one more country into the equation. Now, we all now that 40 million Pashtuns across the border both in Pakistan and Afghanistan, they are one people. And they have been divided into two countries. The border is fluid. The border is artificial. The border is a construct, which physically cannot be controlled, is not controlled. And people flow back and forth because family lives across borders. So, then we say strategic depth simply means that the 40 million Pashtuns living in both Pakistan and Afghanistan are one people, and even though we have divided them into two countries, actually they should be recognized as one people in two countries. That’s one. The second is that Afghanistan’s majority is Pashtuns. You cannot make a government without the majority of the people. That’s not going to be a democratic government. So, it’s natural that the Pashtuns rule Afghanistan, and when Pashtuns rule Afghanistan, they have a natural alliance with Pashtuns in Pakistan. In some sense, the union between Pakistan and Afghanistan is natural, and that unity, despite the border, is irrefutable. And India wants to create a very rigid border between Pakistan and Afghanistan, and maybe move Afghanistan to its own alliance. That’s not going to happen.

Hitchens Watch: In the September 7, 2009 issue of Slate, Hitchens wrote: “American drone strokes have pinpointed and killed at least one especially ghastly Taliban leader, Baitullah Mehsud, who, among other crimes, was the probable organizer of the murder of Benazir Bhutto.” Was Mehsud really a terrorist? If so, what would have been the best way to apprehend him?

http://www.slate.com/articles/news_and_politics/fighting_words/2009/09/dont_forget_why_were_in_afghanistan_and_iraq.html

Khan: Well, again, Mehsud was a part of the resistance movement, and he was a Pakistani Taliban, trying to help the Pashtuns across the border. Now, this whole business of terrorism, I think that’s another linguistic game that Hitchens and people like him, and even the West generally..I mean I’ve written about it repeatedly, that we use the word “nigger” in order to delegitimize the grievances of the black people. We have reinvented the word “savage” to delegitimize the aspirations of the Native Americans. So, I think we do the same linguistic game, that you give a very bad name to your enemy, and you create so many connotations, and so many implications for that word, that anybody who listens to that word is naturally inclined to hate that group. So, I think the United States and the West have successfully launched the word “terrorist” to describe all the people who are fighting the US imperialism. That’s my view of the word “terrorism.” Now, what on the earth could it be that the people who are fighting an occupation will be called terrorists? I mean if we apply this logic to the US, then all the people who were fighting the British were terrorists, but we remember them very fondly, and Hitchens being a Britisher, isn’t he a Britisher?

Hitchens Watch: Yeah, he just became an American citizen recently.

Khan: I think I would ask him if the people who fought the British imperialism, were they terrorists or were they freedom fighters? So, I think in one sense, the people who are fighting the US occupation in Iraq or in Afghanistan or in Pakistan, I think you can call them terrorists because you want to delegitimize them, but there could be other labels as well. So, I think Mehsud, yes, he is a terrorist from a US viewpoint because he was trying to help the people in Afghanistan who wanted to resist occupation…I think it depends what perspective you have on a given war…I think this whole notion makes me not take it very seriously, that labels can describe reality. I think labels are tools of propaganda. Labels are part of the warfare, and you just cannot invent labels and then make them arguments. So to say Mehsud, or for that matter, Mullah Omar, they are terrorists, I can understand that you are engaging in warfare, but if you’re saying you are engaging in analysis, I refuse to accept that.

Hitchens Watch: Do you think Mehsud had anything to do with the assassination of Benazir Bhutto?

Khan: He denied it, and I think these people, when they deny it, they mostly mean it. So, I take him on his word.

Hitchens Watch: If you were an advisor to Washington, would you recommend cutting off all military aid to Islamabad?

Khan: If I’m advising Pakistan, I would say get rid of the aid, and try to become self-sufficient. If I’m advising the United States, I would do the opposite, and I would say do not cut the assistance to Pakistan, because you will lose Pakistan 100%, completely. Already, the United States has lost the people of Pakistan. The United States is losing Pakistan to China. I think there is a new regional alliance that is going to emerge, and that will be China, Pakistan, Iran, and the Central Asian states, and Russia maybe. But definitely, it seems like the United States, foolishly in my view, and against its own interests, and partly driven by people like Hitchens and company… the United States fails to understand that it simply does not have the resources to make so many countries mad. I mean look at what it’s doing. It has made Iran mad. It is making Pakistan mad. It is not getting along with Russia, with all its defense missiles over there. The Congress doesn’t understand that it cannot bully China, but it regularly does. So, it seems like this US leadership is still in a mode of denial. They still think they are the only superpower in the world, and it can dictate its terms to every country in the world. I don’t think that is the case, anymore. The US is still powerful, but it’s losing its power. It is still a rich country; it is losing its richness. It’s in the process of going down, whereas India and China and many other countries are on the upswing. Pakistan would have been the same way had it not been dragged down in the last ten years. Pakistan was doing very well economically until it was dragged down to be in the War on Terror. So, I think, if I am advising Washington, I would say do not lose Pakistan, because if you lose Pakistan, you are losing a key country that would have helped you in that part of the world. But if you lose Pakistan, then you are creating a continuity of “enemyship,” if I can make that word, continuity from China to Pakistan to Iran to Afghanistan to the Central Asian states. This is a very contiguous region that is going to turn against you.

Hitchens Watch: Just after the US intervention in Afghanistan began in the fall of 2001, Hitchens rejoiced “we are rid of one of the foulest regimes on earth, while one of the most vicious crime families has been crippled and scattered.” He insisted that the US military force “remains to help the Afghan exiles to return, to save the starving and to consolidate the tentative emancipation of Afghan women.” What do you think of Hitchens’s view?

http://www.thenation.com/article/ends-war

Khan: I think the United States does have things to teach to the world. I think it has many good values that it can teach to the world. For example, personally I’m a great admirer of American pragmatism. I think American culture is very pragmatic. American people are very pragmatic, and pragmatism means that you focus on the price rather than the ideology. I think a lot of countries become so ideological that they lose sight of the price, or they lose sight of the end. They become so means-focused that they forget the end. Number two, I think Americans are very practical people, which fits with the pragmatism. They are problem-solvers. They take a problem, and then they ask themselves: “How can we solve this problem?” And then they actually end up solving the problem. And I think they also believe that economic prosperity is essential for all other human values. That if you don’t have economic prosperity, the greatest human values cannot be achieved. And I think I would love Muslim countries and Pakistan and Afghanistan to borrow these ideas. They become more pragmatic. They become more practical, and they focus on economic prosperity. Now, having said that, I don’t think Muslims anywhere want American social values, unfortunately or fortunately. Nudity, not taking care of your parents, child care, problems in the United States, overindulgence in individualism, these are not social values that Muslim countries are going to accept. And I think that’s where the US people and the US policymakers fail. That American social values will not be accepted in the Muslim world. And Afghanistani women are not going to walk around with miniskirts, and throw away their families, and throw away their children, and throw away their parents, and just pursue self-development. That is not going to happen. If it happens, then I think the Muslim culture will come to an end, and it would have been completely replaced by Western culture, or American culture. And I think Hitchens should understand that Muslim countries will not import the dysfunctional American values that have actually destroyed the whole concept of family.

Hitchens Watch: The term “emancipation” can be interpreted in many ways. I do not expect to see the typical Afghani woman dancing in discos with a beer in one hand and a cigarette in the other. Emancipation can also mean essential human rights: the right to an education, the right to work, the right to choose one’s husband, the right to birth control.

Khan: Yes, I agree with you that Afghan woman have the right to education, the right to work, and the right to choose a husband, and many other rights, including the right to physical security, and equal respect. The recognition of rights comes slowly and rights have cultural variants.

Hitchens Watch: In the fall of 2001, Hitchens wrote that the Americans “had just succeeded in bombing a country back out of the Stone Age.” He also claimed “that the feat was accomplished with no serious loss of civilian life, and with an almost pedantic policy of avoiding ‘collateral damage’.” Has there been serious loss of civilian life in Afghanistan since 2011? Has the United States avoided collateral damage?

Khan: No, I think this whole idea that collateral damage does not occur, nobody believes in that. There is huge collateral damage. Now, I think I would concede that the modern warfare, in some sense, is restrained both in terms of ideas as well as in terms of values. To engage in massive, widespread destruction, I think there’s less of it. We don’t do the bombing of Dresden and we don’t see the bombing of England, as we did in the Second World War. But that doesn’t mean that the collateral damage has been eliminated, or even minimized. I think collateral damage, you can define very narrowly, and say we are talking only about lives lost. That if you can minimize these deaths of civilians, then you have minimized collateral damage. Okay, that’s a very narrow definition of collateral damage. But there’s another definition of collateral damage, and that is: How many houses have been destroyed? How many families have been broken? How many families have been displaced? How many people have become refugees? How many people have lost their income, or the source of their income? How many lands cannot be plowed? How many factories have closed? How many factories have not been built? I think if you define collateral damage in terms its social, economic, and shared cost, then you will find that collateral damage of the Afghanistan War has been huge, just like the collateral damage of the Soviet invasion was huge. Afghanistan has been economically crippled because, for the obvious reasons, that there is resistance. Even Karzai is saying I will not allow you to stay here unless you promise that you won’t raid homes at night. This is one of his conditions. Imagine you are living in a village, and you don’t know when foreign troops are going to barge into your house, and just destroy everything that you have. I mean this terror of foreign troops coming to your village, coming to your house, breaking your door, and coming into your house, not caring about the privacy of your home, this terror is collateral damage. And I hear people like Hitchens, who have not experienced in their own lives this kind of terror…he should know better because the Second World War exposed Great Britain to this kind of terror. So, to say that modern warfare and US warfare and US military, they’re very benign and they’re very careful and they’re very benevolent and humanitarian, yes, in some sense, yes. But, in the deeper sense, no. I think the US invasion of Afghanistan may be less brutal than the Soviet invasion of Afghanistan, but the collateral damage in terms of economic loss, in terms of loss of opportunity, in terms of loss of families and villages, is no less.

Hitchens Watch: Do you have any statistics for the civilian casualties from the US drone strikes in Pakistan?

Khan: Well, I think Pakistan has a figure…they say 35,000 people have been killed. I don’t know what the figures are. I have no idea. That’s another thing that the whole drone killings, they’re shrouded in mystery. Nobody knows who’s being killed. Nobody knows how many are being killed. Everything is under the dark. Pakistan does not want to disclose it because disclosure would deepen discontent, and the United States does not want to disclose it because the US wants to give the impression that they are only killing the so-called terrorists, as if no other person is being killed. So, I think both the United States and Pakistan have their own interests in hiding the true damage by drones, and therefore, we don’t know. But, again, the terror. Don’t forget the terror of drones, and the uncertainty that it causes, and the terror in the hearts of the children. You are destroying the psychology of children in Waziristan. Because remember, if you are under this fear that a drone is going to attack your village, and people are going to be killed, this will influence very negatively hundreds of children who live there. And I think Mr. Hitchens should know that this is a very brutal collateral damage of drones. You don’t know when it’s going to happen.

Hitchens Watch: In your 2006 Counterpunch article, you wrote that President George W. Bush might have incited genocide. More recently, you argued that President Barrack Obama had “morally degenerated.” Would you accuse Obama of potential genocide as well?

http://www.presstv.ir/usdetail/193802.html

Khan: Well, I think if you go by the definition of genocide, then genocide can occur in time of war. Everything can occur in time of peace. So, war is not an excuse to commit genocide. And I think I would argue that Obama has committed genocide in Waziristan, because this is one policy that he actually started, and took credit for it. Even under the Bush regime, some drone attacks were happening, but Obama made it an explicit policy within three days of taking the White House. He met with the generals, and because he came in with this platform that the real enemy is Pakistan, or in Pakistan, and therefore, I would argue that if you strictly go by the definition of genocide, that is the killing of a protected group, or an attempt to kill a protected group, either in part or as a whole, then you are committing genocide. Now, what is the group? The group is an ethnic group called Pashtun, or a religious group called Taliban. And you don’t have to wipe out the whole group in order to commit genocide, only a part of the group. It’s not one person, but I think if you begin to kill 1,000 or 2,000 or 3,000 of a protected group, and you have the intention to kill them, it’s not an accident or it’s not through negligence, I think Obama has not only continued the Bush genocide policy in Afghanistan, but he has also started a new genocide in Waziristan, if you go by the definition. But unfortunately, I think very few people would conclude that because people still think that war is an excuse, and war is exempt from genocide.

Hitchens Watch: When the war in Afghanistan was nearly one year old, Hitchens had this to say: “I was highly impressed by the evolution of military strategy and tactics since the bombs-away inglorious days of the Vietnam era. Many of the points made by the antiwar movement have been consciously assimilated by the Pentagon and its lawyers and advisers. Precision weaponry is good in itself, but its ability to discriminate is improving and will continue to improve. Cluster bombs are perhaps not good in themselves, but when they are dropped on identifiable concentrations of Taliban troops, they do have a heartening effect.” What is your reaction?

http://www.boston.com/news/packages/sept11/anniversary/globe_stories/090802_hitchens_entire.htm

Khan: Well, I think this paragraph that you just read to me, it’s written from a certain perspective. I think there is dehumanization in this paragraph. There is celebration of destruction in this paragraph, and there is moral triumphalism in this paragraph. And I think the argument is making it very simple. That when you kill your enemy, you have a moral right to be pleased. And I don’t know if this principle is also available to the groups that are fighting the US. If they kill US soldiers, or the US enemy, would Hitchens give them the same moral excuse, moral basis to celebrate, and to be happy? And for where precision bombs are concerned, I think precision is good. I mean as a logistical matter. I think if you can make precision bombs, obviously they are better than crude bombs, on the theory that crude bombs will be inefficient in killing the enemy, number one, and number two, crude bombs will kill more, and will kill people that you don’t want to kill. So, I think to that extent, precision weapons are definitely an improvement over crude weapons, but the use of those precision weapons, and the effect of those precision weapons, and who is the victim of those precision weapons, that’s very difficult to gauge. You could have precision bombs when you are taking the land from the Native Americans, and you could kill only the people that you wanted to kill in order to grab their land, but the question really was grabbing the land rather than whether you could have the precision bombs or crude bombs. So, what I think Hitchens misses in his analysis, and does not show, at least to people who are neutral, that what legitimacy does the US have to occupy Afghanistan for almost ten years now, a little more, and wage a war on a very extensive level that has directly affected millions of people in that country, and now in Pakistan. Only in retaliation to an attack on the US, where 3,000 people were killed, yes, that was not right, but where is the proportionality, and what error and what was the fault of the people of Afghanistan that they had to be punished so heavily for so many years? I think Hitchens and his company, I don’t think they have answered that question adequately.

Murder as Instrument of Foreign Policy

2011-11-05T19:08:00.000-05:00

| by Liaquat Ali Khan

(November 04,Washington DC, Sri Lanka Guardian) President Obama has openly deployed murder as an instrument of foreign policy. Soon after assuming office, Obama authorized the Central Intelligence Agency (CIA) to plan and execute the murder of terrorists and other enemies, regardless of whether they are U.S. citizens. Osama bin Laden, Anwar al-Awlaki, and Muammar Gaddafi are the prominent murder victims while numerous others in Afghanistan, Yemen, Somalia, Iran, and Pakistan have been purposely targeted and killed.

The murder policy under the CIA aegis is by no means an Obama invention. Over the decades, the CIA has spearheaded what Vice President Dick Cheney once described as the “dark side” of the United States. Previously, however, the murders were covert, not to be openly admitted.

The legitimization of extra-judicial killing is a disturbing development in international law as other nations are certain to follow suit. In pursuit of pre-meditated murders, the collateral damage (the killing of the obviously innocent) has been extensive. The claim that such murders can be executed with electronic precision, though false, serves as an incentive for other nations to develop drones to perpetrate their own surgical assassinations. For now, however, the CIA enjoys the monopoly over drone kills.

Covert Murders

The 1947 National Security Act created the CIA for the purpose of gathering and evaluating information necessary to protect the nation from foreign threats. Right from the beginning, however, the CIA assumed a proactive role in promoting U.S. economic and military interests. In 1948, the CIA was transformed into a paramilitary organization, empowered under law to engage in “propaganda, economic warfare, sabotage, subversion against hostile states through assistance to underground resistance movements and guerillas.” Ever since, the CIA has engineered world events for U.S. hegemony.

The murder policy under the CIA aegis is by no means an Obama invention. Over the decades, the CIA has spearheaded what Vice President Dick Cheney once described as the “dark side” of the United States. Previously, however, the murders were covert, not to be openly admitted. In the 1960s, the CIA planned the murders of “communists who threatened the free world,” including those of Patrice Lumumba of Congo and Fidel Castro of Cuba. Researchers dispute over whether the CIA participated in Che Guevara’s murder. The evidence is mounting, however, that the CIA head in Bolivia had a “prior agreement or understanding with the Bolivians that Che would be killed if captured.” (See Ratner & Smith, Who Killed Che?: How the CIA Got Away with Murder).

Covert murders were planned to shield the President from the attendant foreign policy fallout and the moral discomfort emanating from cold-blooded strategies. Notably, the President chairs the National Security Council (NSC), the supreme body that empowers the CIA to conduct covert operations. In the early decades, intelligence experts instituted the doctrine of plausible deniability under which the facts of a covert operation were reported to the President in a way that he could deny the knowledge of a murder. The words “killing” or “murder” or “assassination” were rarely used in oral and written memos to the President. For example, Che’s murder was reported to President Johnson as a “stupid murder.” Such wink, wink linguistic deceptions allow the President to occupy the high moral ground and deny that the U.S. “murders” foreign enemies or “tortures” detainees. The President’s veil of deniability was considered necessary to safeguard America’s image as “the city on the hill,” “the beacon of liberty,” “the greatest nation in the world,” etc.

Audacity of Murder

Since the 9/11 attacks, the policy logistics of murder have been dramatically transformed. The doctrine of plausible deniability has been discarded. Moral constraints on killing enemies, including heads of states and governments, have been cast away. The notion of the U.S. as a “moral nation” is now viewed as an impediment in the conduct of international relations. The “dark side” freely informs the foreign policy. The audacity of murder has gained depth and momentum. The President does not think twice about the moral implications of boasting a drone kill.

In a major policy shift, the murder has been institutionalized. Now, the NSC may itself approve a pending murder. Remember the President and statutory members of the NSC (including Secretaries of State and Defense and the CIA Director) watching bin Laden’s murder as it was happening. The NSC released the picture for public consumption, implying that watching the murder of a noted enemy is morally acceptable. Imagine barbarism if this practice is writ large in the world. No one would be surprised if the NSC itself has authorized the murder of Anwar Awlaki, a U.S. citizen or if the NSC itself has authorized the drone attack on the Gaddafi motorcade to flush him out for murder in public view.

These and similar international murders are no longer the CIA secrets that the Senate needs to investigate as it did in the 1970s. This time, the fascination with murder has metastasized. It is bipartisan. Except Ron Paul, Republican Presidential candidates endorse the murder of “terrorists” who threaten “our way of life.” (Juxtapose the historical massacres of Indian “savages” who too threatened “our way of life.”). Upon the execution of a successful murder, President Obama walks to the podium to express joy in a causal tone of voice. Many politicians join the happy hours. Congratulations are exchanged. The corporate media invites the public to celebrate the great news. This is the most vivid moral collapse of a nation that brazenly talks about human rights and universal values. The American people cannot choose to be silent. They must restore the nation’s moral dignity.

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Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas and the author of A Theory of International Terrorism (2006).

Pakistan's Nuanced Duplicity

2011-10-06T17:39:00.000-05:00

By Liaquat Ali Khan

After unsuccessfully cajoling for more than a year Pakistan’s military and civilian leaders to attack the Haqqanis (a fierce subgroup of the Pashtun Taliban), an aggravated Admiral Mike Mullen, days before retiring, accused the Pakistani Inter-service Intelligence (ISI) of sponsoring terrorism against the U.S. Armed Forces. The accusation struck a chord with American exceptionalists who cannot bear the writing on the wall that the U.S., much like prior invaders, has been defeated in Afghanistan.

They indict Pakistan as “duplicitous,” “unreliable,” “an enemy in disguise,” etc. Congressional leaders threaten to cut off economic assistance to Pakistan; intelligence experts advocate the escalation of drone attacks; and war hawks propose the introduction of U.S. boots into the Waziristan tribal areas. A U.S. security official describes Pakistanis as “the most difficult people in the world to deal with.”

The American perceptions of Pakistan as a duplicitous ally are far more than mere pressure tactics. Indeed, Pakistani negotiators are frequently so complex and multi-dimensional that no linear equation can capture the behavioral dynamics of their motive and intention. Summoning insights from prior dealings with the U.S., Pakistani policymakers blend trust with skepticism and transparency with thickness. They tenaciously hold on to the bottom line but show extreme flexibility, even inanity, while negotiating the top line. For straightforward, binary, and self-righteous Americans, Pakistanis behave as reluctant allies. On binary matters, Pakistanis refuse to say yes or no. On terrorism, they are neither hard nor soft. On defeating the Taliban, they are neither committal nor non-committal. Holding on to the moving edge, Pakistanis are prepared to fall on both sides of the blade. This skill set, which may be called nuanced duplicity, exasperates Americans but not enough to drive them crazy. The war in Afghanistan has exposed wide open the skill set that Pakistanis have been developing and practicing over the decades.

War is Over

Barely five or six more weeks are left in the active war in Afghanistan. Before the November snow covers the battlefield and the U.S. begins to withdraw troops, the Taliban are determined to inflict the last-minute damage on the fleeing occupying forces. Mullen’s complaint that the Haqqanis are killing American soldiers was a bit disingenuous because the Admiral knows that the enemy does kill in the battlefield. But that’s not what Mullen meant. Mullen, as the military head of the U.S. Armed Forces, was summoning, using sticks and carrots, Pakistan’s coordination with the U.S. military in decimating the Haqqanis. This Taliban defeat, had it occurred, would have given something tangible for the U.S. military historians to write a face-saving chapter in the failed Afghanistan war. Pakistan refused to oblige, primarily for domestic reasons. By lashing out at the ISI, Mullen was making a simple point that the Pakistani military, which has received millions of dollars in cash and hardware from the U.S., could have offered a helping hand in closing an otherwise disastrous war with a small final victory. Therefore, under Mullen’s transactional logic, Pakistan has been an ungrateful ally.

Exit Strategy

President Obama and his cabinet, however, politely declined to tether Mullen’s wrath to any punitive policy toward Pakistan. This response has nothing to do with Pakistan’s tough stand against Mullen’s statement. A cosmetic departure victory over the Haqqanis is not as critical to the Obama administration as it has been to Mullen. Even the Pentagon is not soliciting any such departure victory because the stakes of taking on the Haqqanis are high and the outcome is uncertain. In this sense the U.S. and Pakistan governments are on the same page. Yet the retiring Admiral was allowed to vent his heartfelt anguish against Pakistan’s betrayal in refusing to join the battlefield against the Taliban.

The Obama exit strategy, though not looking for a closing ceremonial victory, is a bit confused. The Obama administration continues to see the Taliban as the enemy. But the hard reality is that no durable solution in Afghanistan is obtainable without negotiating with the Taliban. A stable Afghanistan peace without the Taliban is impossible. President Karzai understands the ground reality and has been wooing the Taliban as “brothers.” Pakistan knows for sure that the Taliban, whose leadership is tucked away in Quetta, are the natural heirs of Afghanistan. The Obama administration, though aware of the logic of options, cannot bring itself to swallow the bitter pill that it will be leaving Afghanistan to the same people, the Taliban, whom the U.S. forces drove out of power and with whom a failing war was fought for over ten years.

At the end of the day, a negotiated peace with the Taliban with the assistance of Pakistan is the only way forward in ending this unfortunate war that has drained billions of dollars from the American coffers; a war that has killed thousands of Afghan and Pakistani civilians and American soldiers. Killing the Haqqanis, or not talking to the Taliban leaders, cannot be the exit strategy. Pakistan must recognize that the U.S. is leaving Afghanistan not as a wounded superpower, but as a conscientious nation that was attacked out of the blue on 9/11 and a nation that means well and holds few permanent grudges against the peoples it invades in folly. The U.S. must also recognize that Pakistan’s nuanced duplicity may indeed be required in bringing peace to the region.

President Obama Abandons the Muslim World

2011-08-13T18:59:00.001-05:00

U.S. drone attacks in tribal areas of Pakistan is “an unfortunate chapter” in Barack Obama's presidency, says Professor Liaquat Ali Khan of Washburn University.

“Unfortunately President Barack Obama, despite getting a Nobel Peace prize very early in his presidency… has morally degenerated,” Professor Khan said in an interview with Press TV's U.S. Desk on Saturday.

“(This drone war) is very unpopular in Pakistan and the people of Pakistan oppose these drone attacks by the U.S. So I don’t think this drone war is doing anything for the U.S and is tarnishing the moral integrity of President Obama.”

Despite his pledge of reaching out to the Muslim world, President Obama has made no effort to connect with the Muslim world.

According to a report by the London-based Bureau of Investigative Journalism U.S. drone attacks in Pakistan have killed up to 168 children over the last seven years. However the CIA claims that not a single civilian has been killed as the result of drone strikes.

HJ/KA/DB

Rising anti-Americanism in Pakistan

2011-06-12T11:25:00.000-05:00

Shrouded in secrecy, drone attacks have turned into propaganda tools for both defenders and critics. Because the international and Pakistani media are denied access to the tribal areas, the target territory of drone attacks, the precise count of casualties remains unclear, writes Liaquat Ali Khan.

Middle East Online

On May 14, after deliberations of over 10 hours, the democratically-elected Pakistan Parliament in a joint session of both houses passed a unanimous resolution to reclaim Pakistan’s sovereignty, territorial integrity, and national security against US military actions. Invoking the U.N. Charter, international law, and humanitarian norms, the resolution specifically condemns “the continued drone attacks on the territory of Pakistan,” which have increased manifold under President Obama. The resolution empowers the Pakistan Government “to consider taking necessary steps including withdrawal of transit facility allowed to NATO/ISAF forces” in case the CIA-operated drone attacks are not “stopped forthwith.” The Parliament also expressed “its deep distress” over “the campaign in certain (US) quarters” to malign Pakistan as a nation that secretly supports terrorist outfits.

The US National Security Council (NSC), the President’s principal forum for considering national security and foreign policy matters, should take notice of the rising anti-Americanism in Pakistan. It must review the policy of drone attacks and find ways to establish rapport with the Pakistan Parliament. Failure to do so would most likely harm US strategic and foreign policy interests.

Drones as Propaganda Tools

Shrouded in secrecy, drone attacks have turned into propaganda tools for both defenders and critics. Because the international and Pakistani media are denied access to the tribal areas, the target territory of drone attacks, the precise count of casualties remains unclear. Furthermore, no one knows with certainty whether drones kill more militants or civilians. Defenders, mostly in the US, support drones as efficacious machines to fight militants lodged in inaccessible mountains. Critics, mostly in Pakistan, condemn drones as lawless gadgets that kill innocent men, women, and children, the indigenous population of tribal areas.

The Pakistani electronic media, exercising its newly-found freedom of expression, is the greatest critic of drone attacks. Day after day, Pakistani anchors, sitting among politicians, government officials, and opinion makers, condemn drone attacks, reinforcing the unprecedented anti-Americanism throughout Pakistan. Even pro-Western elites, educated in American universities and trained in military academies, are disappointed with the US disrespect for Pakistan as a nation. The NSC must not underestimate the fallout of these negative sentiments.

Silk-Route Alliance

The NSC is reported to have examined the Parliament’s resolution and the rising anti-Americanism. Some in the NSC oppose the frequency, and perhaps the wisdom, of drone attacks, particularly at the eve of Afghanistan war. All in the NSC, however, know that Pakistan has few operable options to stop drone attacks. Pakistan cannot shoot down drones for such countermeasures would invite the US Congress to impose economic and military sanctions, in addition to withholding billions of dollars in assistance. Pakistan is also unlikely to withdraw transit facilities for fear of jeopardizing trade and diplomatic relations with NATO states. In no way can Pakistan afford a dramatic breach with the US

Nonetheless, a helpless Pakistan, under intense anti-American pressure at home, may begin to take small steps to drift away toward China, the so-called all-weather friend, and possibly woo Russia, modifying its pro-US foreign policy. A Silk-Route alliance, including China, Pakistan, Afghanistan, and Central Asian states, is unlikely to forge anytime soon, but Pakistan, more than China, will be the key to such an alliance. Central Asian states, rich in natural resources, will find the alliance economically appealing. The alliance with Muslim states will effectively eliminate the Uighur secessionist threat in the Xinjiang province, a huge benefit to China. India too is unlikely to fully embrace the US as a counter-weight to the Silk-Route Alliance. India cannot trust the US after the US brutally degrades and abandons Pakistan, a sixty-year old subservient ally. The Silk-Route alliance may thus expel the US from the region.

Courting Pakistan’s Parliament

If the NSC wishes to retain Pakistan as an ally, it must take immediate steps to demonstrate that it respects Pakistan’s democratically-elected Parliament. The NSC may consider the following steps in mending the breach with the Parliament:

1. The NSC should invite influential members of the Parliament to the US to meet with members of Congress for meaningful exchange of views. Members of Congress must also visit Pakistan to make the case for the US national security. This democratic bilateralism will deepen mutual understanding of elected institutions.

2. The NSC should dissuade government officials and members of Congress from issuing provocative statements that paint Pakistan as an unreliable or duplicitous ally. Such degrading rhetoric is more appropriate after the NSC decides to ditch Pakistan as an ally.

3. The NSC should stop drone attacks forthwith, meeting a key demand of Pakistan’s Parliament. Killing a few more militants cannot change the ground realties of the Afghan war. In alienating the people of Pakistan and its Parliament, the drone attacks cause more harm than benefit to US geostrategic interests.

These and similar steps will launch a pragmatic policy of treating Pakistan as a dignified ally, which recognizes Pakistan’s sacrifices in supporting the US campaign against terrorism. With the rising anti-Americanism, Pakistan will no longer remain a slave state.

Liaquat Ali Khan is professor of Law at Washburn University School of Law and the author of A Theory of Universal Democracy (2003).

Pakistan Forfeits National Interest for US

2011-05-28T07:29:00.000-05:00

The US has reportedly asked Pakistan to provide intelligence on people listed as most wanted terrorists.

The list is to include Osama bin Laden's deputy and Taliban leader Mullah Mohammad Omar.

Press TV interviewed Liaquat Ali Khan, author and Professor of Law at Washburn University in Topeka, Kansas, regarding the Pakistan-US relation and Pakistan's further risk of an internal unrest as a result of US affiliation.

Press TV: Since [Osama] bin Laden's death, the Pakistan-US relation can best be defined as a whirl-wind. Does the US really expect Pakistani co-operation after continued violation of sovereignty?

Ali Khan: Yes, I think that's a very difficult question for the Pakistani leadership, because the people of Pakistan are very angry over the violation of their territorial integrity and sovereignty. But it seems like the Pakistani government is still willing to listen to the United States and do what they are asked to do.

Press TV: Is the US putting Pakistan at a further risk of an internal unrest, considering the people, the government, and the army seem to have their own opinions about what should happen?

Ali Khan: Yes, I think when [President Barack] Obama took over the Whitehouse, I wrote very clearly that the Obama policy is going to generate a civil war in Pakistan, And I think that is exactly what is happening. And the continued policy of putting pressure on Pakistan to kill its own citizens in North Waziristan and other federal areas, I think that is not going to be good for Pakistan, even though it is not good for the United Sates, because the Unites States is losing this war in Afghanistan, and so I don't think this continued policy of killing people is helping either the United States or Pakistan.

Press TV: When all is said and done, Pakistan sovereignty does really matter to the US, so why the public show of wanting the Pakistani government to handle the US's dirty work?

Ali Khan: I think that there are so many theories, but one is that for the last 63 years Pakistan has acted as a slave state, and it has put foreign interest over its domestic interest, so the present government, like the previous government, continues the sacrifice its national interest in order to please foreign donors.

REZ/MGH

The Right to Know the Truth

2011-05-18T17:13:00.000-05:00

This video explains the people's right to know the truth. The peoples of the world demand that governments tell the truth. For example, the U.S. government must disclose the facts surrounding the assissination of Osama bin Laden.

Scripture on Parchment: Benefits of Prayer

2011-05-09T09:50:00.000-05:00

Scripture on Parchment

2011-04-30T06:54:00.002-05:00

We seek control over the events of life. But seeking control is a misguided objective.

Petitioning Congress on Qur’an Burning

2011-04-19T14:25:00.000-05:00

By Liaquat Ali Khan

The recent Qur'an burning by Pastor Terry Jones, the author of Islam is of the Devil, is the continuation of a Western medieval custom of assaulting the dignity of Islam, particularly personal integrity of the Prophet Muhammad, and the divinity of the Qur'an, a holy book that more than a billion people, including American Muslims, hold dear to their hearts. In recent years, the West has invoked the freedom of speech to defend new assaults on Islam, including the Danish publication of cartoons of the Prophet. Unfortunately, the post-9/11 United States, where attacks on the Qur'an are a relatively new phenomenon, is in the process of adopting the medieval custom.

Over the centuries, Western Europe has used various theological, literary, and popular justifications to sustain its medieval custom. In nurturing this custom, however, the West stands alone. Africans, Asians, and Eastern Europeans, rarely participate in desecrations of the Qur'an. The Chinese and Hindus, while celebrating their own religious and metaphysical traditions, have generally refrained from disrespecting the Qur'an. The Western contempt for the Qur'an, however, refuses to abate even though the West itself has undergone a radical transformation from medieval religiosity to modern secularism.

This commentary provides a brief historical insight into the medieval custom of desecrating the Qur'an and argues that the United States should resist the custom that sows the seeds of hatred, provokes violence, and barricades a meaningful dialogue between the West and Islam. The commentary also proposes that the United States must find legal ways to prevent desecrations of the Qur'an.

Medieval Custom

During the Middle Ages, the West frequently demonized the Qur'an on the basis of hearsay because the Qur'an was unavailable in vernacular languages. The first English translation of the Qur'an appeared in 1649 without a named translator, publisher, or printer. Anticipating hostility, the preface defended the translation saying that the ugliness of the Qur'an would enhance the beauty of the Gospels, for the Qur'an is, "without head or tail ... confused, contradictory in many things, written in rude language, consisting of lies and useless follies." This medieval conception of the Qur'an is deeply etched in the West.

In 1736, Voltaire, the celebrated French belletrist, wrote a five-act play Mahomet to highlight the depravity of Islam, and perhaps all religions. A few years later, however, Voltaire revised his views and appreciated the Qur'an for removing idolatry. In the past few decades, new Western scholarship promoted a sensational thesis that the Qur'an is a fraudulent book concocted centuries after the Prophet's death, projected back in time, and falsely attributed to the Prophet Muhammad. This thesis was later retracted by the authors.

Western artists also contribute to desecrations of the Qur'an. In 2004, Dutch filmmaker Van Gogh produced a short film, called Submission, to highlight the subjugation of women that the Qur'an allegedly advocates. The film shows nude women wearing see-through veils with Arabic verses of the Qur'an etched on their bodies, insinuating that the Qur'an perpetuates their lack of freedom. An infuriated Moroccan murdered Van Gogh. While condemning the murder, another filmmaker opined, "Longtime readers of Van Gogh's weekly column in the Dutch newspaper "Metro" know very well that his intention was not to reform male chauvinism, but rather to express crude bigotry."

In the post 9/11 United States, the Qur'an is a prime target. In 2007, the information obtained from the FBI files revealed that Guantanamo prison guards threw the Qur'an in the toilet to torture Muslim detainees. The so-called experts on terrorism frequently cite verses of the Qur'an to argue that the Qur'an inspires violence against Jews and Christians. This April, Pastor Jones accused the Qur'an of fomenting terrorism and put the Qur'an on trial. In this mock trial held inside a church in Florida, a jury heard the evidence and found the Qur'an guilty. Upon conviction, the Qur'an was punished by being burned in a fire. Pastor Jones seeks shelter under the First Amendment to defend his odious expressive conduct.

Questionable Expressive Conduct

In the language of law, Qur'an burning would be an expressive conduct. The First Amendment is generous in protecting oral and written word. It is less so with respect to expressive conduct. The First Amendment shelters expressive conduct if it does not threaten to disturb the peace. The United States Supreme Court declined to outlaw the burning of an American flag because, "no disturbance of the peace actually occurred or threatened to occur."

The flag precedent does not apply because Qur'an burning is an expressive conduct that incites actual violence. So far Qur'an burning has produced instantaneous violence outside the United States. Given the presence of a growing population of American Muslims, Qur'an burning threatens domestic peace. Media and blog invectives may have forced Justice Stephen Breyer to retract his otherwise sound intuition that the First Amendment would not protect Qur'an burning.

Invoking their constitutional right, American Muslims should petition the United States Congress for a redress of grievances. They must demand constitutionally sound legislation that outlaws desecrations of the Qur'an. For Congress, such legislation will demonstrate to American Muslims that the United States is prepared to break away from the medieval custom of assaulting the dignity of the Qur'an. It will also send a powerful message to Iraq, Afghanistan, Pakistan, Libya, and the entire Muslim world, that the U.S. is neither Islamophobic, nor anti-Islamic, a move that can undermine terrorist threats to homeland security.

To their credit, Western European nations have adopted anti-hate statutes, which would proscribe burning of the Qur'an. A few days ago, the British government arrested a Welsh politician who allegedly burned a copy of the Qur'an. The British government has also banned Pastor Jones from entering the United Kingdom.

Peter King's crusade

2011-03-11T19:24:00.005-06:00

Congressman Peter King, Chairman of the House for Homeland Security Committee is "launching a new crusade against Muslims in the United States," with his so-called hearing on Radicalization of American Muslims, says Liaquat Ali Khan, Author and Professor of Law in Washburn University School.

"[King] is arguing that there is a threat from the entire Muslim community and that mosques have become centers of radical Islam," Khan said in an interview with Press TV's U.S. Desk on Friday.

"And I think this idea that all Muslims are a threat to national security is a very frightening idea," he added.

Khan said that Muslims in the United States come from a varied socio-economic and cultural background.

"Mr. King should understand that when we talk about American Muslims, we are talking about all kinds of Muslims… [including those who] work for the U.S. army."

"So this broad sweep is very, very, disturbing. It doesn't respect Muslims as individuals," he added.

He further said, "This is a reminder to us that Peter King is doing what Joseph McCarthy did in 1950s. Joseph McCarthy also did not make any distinctions and everybody who criticized U.S. policy was considered as a communist spy."

Khan expressed concern over King's anti-Muslim actions. "So I am very disturbed that Peter King is doing this and I am also very disturbed that the House leadership has done nothing to stop him from launching this new crusade against the Muslims."

FACTS & FIGURES

Congressman Peter King, who has rationalized his past defense of IRA terrorism without a hint of self-awareness or irony, is now the self-appointed protector of America from future terrorist attacks by holding a congressional hearing on the "Extent of Radicalization in the American Muslim Community and that Community's Response." Guardian

King has in the past claimed there are "too many mosques" in America and that 85% of American mosques and its religious leaders are radicalized, a statement that has been thoroughly discredited. Guardian

Despite a recent study showing that 40% of all extremist plots in America were thwarted as a result of Muslim American help, King ignores this evidence and stubbornly asserts that there is a "lack of cooperation" by Muslims with law enforcement. The intent, scope and framing of King's hearing have been criticized by law enforcement officials, counter-terrorism professionals, civil rights organizations, interfaith leaders and political commentators as being misguided, ineffective and potentially dangerous. Guardian

The majority of terror plots in America since 9/11 have been committed by non-Muslims, especially rightwing extremists and white supremacists. Examples include the failed Martin Luther King parade bomber in Washington State; Jared Lee Loughner, the Arizona shooter who killed six people, including a judge, and Joseph Stack who flew his plane into an IRS building last year. Guardian

SAR/HJ/SM

Representative King's Crusade aganst American Muslims

2011-03-10T19:39:00.000-06:00

Peter King's Witch Hunt
By LIAQUAT ALI KHAN

Despite calls to call off the proposed Congressional hearings on the inflammatory topic of “the radicalization of American Muslims,” Representative Peter King, a Roman Catholic, the Republican Chairman of the House Committee on Homeland Security--who was a strong supporter of the Irish Republican Army--is determined to investigate the so-called homegrown Islamic terrorism. Numerous faith groups, including the Catholics, oppose King’s Hearings as a crude attack on the religious dignity of Islam. Jewish leaders and rabbis have been most vocal in condemning the undignified implication that “there is an inherent link between Islam per se and terrorism (which) is not helpful to religious tolerance in America.” Other faith groups warn that “singling out a group of Americans for government scrutiny based on their faith is divisive and wrong.” King remains un-persuaded, however, reaffirming regrettable popular opinions that Islam poses a threat to national security, that mosques are turning into centers of radicalism, and that American Muslims are actively planning to engage in acts of terrorism.

Denial of Human Dignity

In addition to challenging the religious dignity of Islam, a religion now well-established in the U.S., King’s Hearings violate the principle of human dignity, the bedrock of the law of human rights. Human dignity requires that the group identity should not be the sole criterion for judging individuals. Every individual, regardless of his or her racial, religious, or any other group identity, is entitled to human dignity. This principle of dignity of the individual, though it applies to all, is particularly protective of individuals of vulnerable minorities, such as American Muslims.

King knows that several million Muslims living in all parts of the U.S. epitomize diversity and individuality. They all are not the same. American Muslims are South Asians, Arabs, African-Americans, and Caucasians; they are immigrants and native born; they are men, women, and children; they are cab drivers, students, doctors, engineers, and lawyers. Ignoring complex compositions of American-Muslims as individuals, King’s Hearings endorse an inaccurate impression that American Muslims constitute a violent monolithic community; or, worse, that each and every American Muslim poses a threat to homeland security.

McCarthyist Overgeneralization

As public figures wielding influence, lawmakers are duty-bound to avoid harmful overgeneralizations that cause public panic or fear. Opponents of the Hearings point out that Representative King is following Senator Joseph McCarthy, who in 1950s tilled the popular American fear that Soviet-sponsored communist spies had infested the nation and were planning to overthrow the U.S. Constitution. McCarthy was right to the extent that communist spies had indeed infiltrated the U. S.

What was wrong with McCarthy’s Red Scare was an irresponsible overgeneralization under which every egalitarian person, every critic of free markets, and every opponent of the U.S. foreign policy was regarded as a communist spy. Patriotic Americans, who disagreed with McCarthy’s conservative agenda, were seen as state enemies. McCarthyism is now associated with a phenomenon that morphs legitimate concerns into an unlawful overgeneralization.

Unfortunately, King’s Hearings are charting the McCarthyist path. King underscores a legitimate homeland security concern. A few individuals would likely commit acts of terrorism and some already have. In 2010, Faisal Shahzad, a naturalized Muslim citizen, attempted to detonate a car bomb in Times Squares. In 2009, Major Nidal Hasan, a Muslim born in Virginia, killed 13 persons at Fort Hood. However, select acts of terrorism, no matter how despicable, cannot be inflated into the collective guilt of an entire community.

History teaches us, again and again, that overgeneralizations lead to error and tragedy. Most American Muslims are like most other Americans, engrossed in their daily lives. They commute to work, they take children to school, they work, they come home, and they look forward to a restful evening. Committing violence against their own country does not cross their mind. Committing the cardinal error of overgeneralization, King, despite legitimate concerns he has for homeland security, comes across as a prejudiced lawmaker determined to demonize American Muslims as violent radicals. At a time when the U.S. needs the goodwill of domestic Muslim communities to safeguard homeland security, King is widening the gulf of trust and mutual respect among Americans.

Inflated Concerns for Homeland Security

Homeland security is a legitimate congressional concern. Members of Congress are bound by oath or affirmation to defend the U.S. Constitution against domestic and foreign enemies. Note, however, that it is the U.S. Constitution that members of Congress must defend. No responsible lawmaker would reduce the Constitution’s complex rights-based architecture to mere homeland security. It is no secret that inflated concerns for homeland security can assault civil liberties and protected rights. (Middle Eastern autocrats, as we witness the revolt against them, have for decades denied the people’s freedoms in the name of homeland security.)

Rights-based democracies interweave homeland security into the precious fabric of rights and liberties. The internment of Japanese-Americans during the Second World War was a grave error precisely because the internment policy threw away rights and liberties for the sake of homeland security. Congressional leaders, including the Speaker of the House, must not allow King to conduct these hearings that challenge the religious dignity of Islam and through harmful generalization decline to treat American Muslims as individuals.

Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas and the author of A Theory of Universal Democracy (2006).

The Peoples' Revolution in Tunisia, Yemen, and Egypt

2011-01-30T11:31:00.000-06:00

JURIST Contributing Editor L. Ali Khan, Professor of Law at Washburn University says the people's revolutions of Tunisia, Yemen, and Egypt are in response to sham democracies and their peoples' desire to enforce their rights and liberties, but the US's role remains unclear...

The peoples' revolution is brewing in Tunisia, Yemen, and Egypt. These nations, unlike the Kingdom of Saudi Arabia, have established state constitutions that promise a democratic form of government and espouse the principle of popular sovereignty. Article 3 of the Tunisia Constitution declares that "The sovereignty belongs to the Tunisian People who exercise it in conformity with the Constitution."Article 4 of the Yemen Constitution declares that "Power rests with the people who are the source of all powers." Article 3 of the Egypt Constitution proclaims that "Sovereignty is for the people alone who are the source of authority." Invoking these constitutional provisions, the people of Tunisia, Yemen, and Egypt have resolved to enforce their democratic rights and liberties.

In blatant violation of national constitutions, President Zain El-Abidine Ben Ali ruled Tunisia for twenty four years (1987-2011), President Ali Abdul Saleh of Yemen has been in power for over twenty years (1990-2011), and President Hosni Mubarak of Egypt has occupied the highest state office for thirty years (1981-2011). The people have finally elected to recall these irremovable Presidents by resorting to street power, the ultimate expression of sovereignty against tyranny. The reasoning of the peoples' revolution is no other but the one that has inspired other revolutions: "When a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce (the people) under absolute despotism, it is (the people's) right, it is their duty, to throw off such government, and to provide new guards for their future security." The peoples of Tunisia, Yemen, and Egypt can no longer tolerate sham democracies.

Sham Democracies

It is commonplace in North Africa and the Middle East to establish irremovable autocracies through the medium of sham democracy. Over the decades, sham periodic elections have been held in Tunisia, Yemen, and Egypt to elect parliaments and presidents. However, the same ruling party returns to power and the same President wins an overwhelming majority of popular vote. The periodic democratic ritual is staged to delude the people and the world that the governments in Tunisia, Yemen, and Egypt are anchored in the will of the people. Nothing is farther from the truth.

In October 2009, Tunisia held sham presidential and parliamentary elections. The Constitutional Democratic Rally, the ruling party that has governed Tunisia since its independence from France in 1956, received nearly 85% of the popular vote. To conceal electoral fraud, the ruling party refused international monitoring of the elections. In Egypt, the National Democratic Party has retained power since its creation in 1978. In the most recent sham elections held in 2010, the National Democratic Party won 81% of the seats in the national legislature. Opposition parties that could have challenged the ruling party were banned and their leaders arrested. Yemen is essentially a one party state. The next parliamentary elections are scheduled to be held in April, 2011. It remains to be seen whether the Yeminis would allow the General People's Congress, the ruling party, to return to power.

Even sham democracies are tolerable if rulers are competent and just. But sham democracies are doubly unbearable if the people face unremitting economic hardships. Hope is at the lowest ebb when protesters wave baguette as the symbol of revolution. In Tunisia, President Ben Ali and his family exploited state power to amass huge amounts of personal wealth. Corruption at the top trickled down to the bottom. Tunisian protests began the day a farmer set himself on fire when the police, in order to extort money, impounded his vegetable and fruit stand. Yemen, the poorest country in the region, has made little economic progress under President Saleh's incompetent administration. In Egypt, Hosni Mubarak has run the state as a personal fiefdom. The members of the ruling party are blissful and affluent whereas millions of ordinary people live in shanties. Economic hardships are further aggravated when omnipresent security forces resort to cruelty, torture, and inhumane treatment.

United States Support

It is unclear how the United States would react to the people's revolution in Tunisia, Yemen, and Egypt. While the Obama administration has expressed lukewarm support for Tunisians after Ben Ali's departure, no real support is offered to the peoples of Yemen and Egypt. If history is any guide, the U.S. would give public lectures on the people's right to peaceful protest but secretly support the suppression of revolts in Yemen and Egypt. As usual, concrete U.S. interests will trump the people's right to institute representative governments. The U.S. would support President Saleh for his commitment to physically eradicate al-Qaeda, which is taking root in Yemen. Likewise, the U.S. would support President Mubarak for his commitment to suppress the Muslim Brotherhood, a religious political party that opposes U.S. policies in the Middle East. The despots have memorized the logic of American self-interest.

By betting on the discredited Presidents of Yemen and Egypt, however, the U.S. will choose the wrong side of the inevitable revolution. The revolution for genuine democracy, even if brutally suppressed, is unlikely to fade away. The people seem determined to enforce the national constitutions that promise free and fair elections, freedom of speech, the right to vote, and the right to remove a ruling party that no longer serves their social and economic needs. In his 2009 speech, in Cairo President Obama rejected the notion of pawning other nations for securing American interests. He said, "For human history has often been a record of nations and tribes subjugating one another to serve their own interests. Yet in this new age, such attitudes are self-defeating. Given our interdependence, any world order that elevates one nation or group of people over another will inevitably fail." Now is the time for President Obama to support the peoples of Tunisia, Yemen, and Egypt in their sovereign struggle to self-enforce the democratic constitutions that have yet to deliver genuine democracy.

Ali Khan is professor of Law at Washburn University in Topeka, Kansas and the author of A Theory of Universal Democracy (2006).

Suggested citation: L. ALi Khan,Popular Enforcement of Constitutions in Tunisia, Yemen, and Egypt, JURIST - Forum, Jan. 29, 2011, http://jurist.org/forum/2011/01/dnp-popular-enforcement-of-constitutions-in-tunisia-yemen-and-egypt.php.

January 29, 2011

Pakistan's Blasphemy Statute

2010-12-14T06:03:00.000-06:00

By Liaquat Ali Khan & Jasmine Abou-Kassem

AASIA Bibi, a 45-year old Christian woman, has been sentenced to death, under Section 295-C of the Pakistan Penal Code, for allegedly `defiling` the Prophet (PBUH). Though Aasia is the first woman to be convicted for blasphemy, Christians, Hindus and hundreds of Muslims have been charged under the statute.

Section 295 is a convenient legal tool to settle petty personal scores, intimidate rival families and practise ill-informed versions of Islam, particularly in small towns and villages. Local judges come under pressure to convict persons charged under the statute with the strident approval of local elders. Over the years, attempts to repeal the statute have provoked stiff opposition from Muslim jurists and invited threats of violence from militant groups. Even Pervez Musharraf, a secular military dictator, could not, for fear of imminent and severe reprisals, repeal the statute. For the same reasons, major political parties are disinclined to correct the blasphemy statute.

Recognising the political difficulties of repealing the blasphemy statute or declaring it unconstitutional through judicial review, this legal commentary explores a different option. We ask that Pakistan`s high courts build safety measures around the inherent faults of the blasphemy statute, particularly Section 295-C, which carries the death penalty.

More specifically, we argue that 295-C violates the due process clause of the Pakistan constitution and is repugnant to the Basic Code (the Quran and Sunnah), which, according to Article 227 of the constitution, is the supreme law of the land. In each case, including that of Aasia Bibi, the high courts must interpret and apply the blasphemy statute in ways consistent with the constitution and the Basic Code.

In 2010, Article 10 of the constitution was amended to introduce the due process clause into the criminal justice system. The amendment provides that a person charged with crime is entitled to due process. This due process clause applies to the blasphemy statute as well, securing civil rights in charges filed under 295-C. These protections now mandate more scrupulous applications of the blasphemy statute.

The over-broad language of 295-C punishes with death or life imprisonment any person who “by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad.” While the punitive part of the statute is lucid, the definition of blasphemy is vague and wide open. And the death penalty for prohibited speech is disproportionate, if not cruel and unusual.

A universal understanding of due process requires that criminal laws be drafted in a clear language for the average person to understand. The due process clause requires a clear and fair notice of criminality. This precision is even more crucial when a crime encroaches upon the right to free speech and to profess religion. The sweeping language of 295-C muddles protected speech with criminal speech.

Aasia Bibi was convicted for allegedly professing that Muhammad is not a prophet as are Abraham, Moses and Jesus. As a Christian, she believes that Abraham, Moses and Jesus are prophets. And as a Christian, she does not believe that Muhammad is God`s Prophet. So what she professed was consistent with her core beliefs. No high court can ignore due process and confirm the death penalty of a Christian woman professing her faith. The blasphemy statute does not punish Muslims for denying that Jesus is son of God, a belief of Islam that could be offensive to Christians.

Pakistani high courts cannot apply the blasphemy statute shorn of due process and civil rights. Otherwise, 295-C is an unwary trap for persons such as Aasiya and an unbridled source of power to those charged with enforcing its open-ended mandate. Simply put, 295-C violates fundamental due process rights of life, liberty and freedom of religion protected under the constitution. The courts must apply the blasphemy statute in ways consistent with defendants` fundamental rights.

Most importantly, the blasphemy statute is incompatible with Islamic law. Article 227 states: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah [Basic Code].” We submit that 295-C should be interpreted and applied in a manner not repugnant to the Basic Code. Religious minorities enjoy certain immutable rights under the Basic Code, which no positive law can take away.

First, religious minorities are free to practise religion even if their beliefs contradict the basics of Islam. The Quran reaffirms the principle that “there is no compulsion in matters of religion”. An Islamic state`s statute cannot dictate what non-Muslims should or should not believe, nor can it rely on capital punishment to silence other faiths.

Second, Pakistan as a Muslim state is obligated to protect the life, liberty, property and dignity of religious minorities. When groups foment persecution of non-Muslims, the state must provide protection and security.

In his own life, the Prophet was verbally and physically abused. In most cases, he appeared forgiving and merciful. Of course, we are not suggesting that Pakistan should allow the defiling of the Prophet. Consistent with the Basic Code, we submit that Section 295-C must be reserved only for malicious attacks on the Prophet and even in such cases, the courts should know that the Basic Code prefers repentance and forgiveness over punishment.

Liaquat Ali Khan is professor of law at Washburn University in Kansas. Jasmine Abou-Kassem is an attorney in Kansas City.

Haj Photos

2010-11-19T17:39:00.001-06:00

Spectacular Haj Photos

Oklahoma Ban on Shariah is Unconstitutional

2010-11-09T19:27:00.002-06:00

Tuesday, 09 November 2010 19:30

By Liaquat Ali Khan
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by L. Ali Khan and Jasmine Abou-Kassem

On November 2, 2010, an overwhelming majority of Oklahoma citizens (slightly more than 70%) approved State Question (SQ) 755, as a state constitutional amendment, forbidding Oklahoma courts from “considering or using” international law or Shariah law. Oklahoma State Representative Rex Duncan, the amendment’s principal author, characterized the Shariah as a “cancer that must be removed with a preemptive strike.” A petition has already been filed with the United States District Court to seek a temporary restraining order against the enforcement of SQ 755. It remains to be seen whether the federal courts will strike down the amendment under the supremacy clause of the United States Constitution.

This commentary highlights the practical implications and legal effects of SQ 755 to conclude that the Oklahoma courts would be unable to surgically remove the Shariah from the myriad of legal relations emanating from the laws of the Qur’an and the Prophet’s Sunnah, the primary sources of the Shariah law. Given the omnipresence of the Shariah law in Muslim life and its inseparability from practicing the religion of Islam, SQ 755 will go down in history as an ill-informed proposal that deceived the people of Oklahoma into voting for an illegal constitutional amendment, singled out the Oklahoma Muslim community for religious indignity, and tried to obligate Oklahoma courts to do what they, in good conscience, and as a matter of law, simply can not do.

Religious Rights

SQ 755 impinges upon religious rights protected under the U.S. Constitution. The application of Shariah law is necessary to protect Muslims’ civil rights and religious freedom under the U.S. Constitution. Take a simple case of supplying halal food for Muslim inmates in the Oklahoma prisons. The Shariah obligates Muslims to eat halal food much like Judaism obligates Jews to eat kosher food. In Massachusetts, Muslim inmates filed a civil rights action against the Department of Corrections for not providing halal food, alleging violations of the First and Fourteenth Amendments. The United States District Court held that refusal to provide halal food to Muslim inmates (and likewise a ban on their weekly group prayer services) “substantially burdened Muslim inmates’ exercise of their religious beliefs.” Relying on this holding, the Superior Court of Massachusetts extended the provision of halal food “to all inmates who have demonstrated a sincere belief in the tenets of Islam.”

Now suppose this case were to arise in Oklahoma. SQ 755 would require the state courts to deny, as a matter of summary judgment, the Muslim inmates’ petition for halal food simply because granting such a petition is tantamount to “considering or using” the Shariah law. But would the Oklahoma courts, in order to give effect to SQ 755, set aside the inmates’ civil and religious rights protected under the U.S. Constitution? The courts would inevitably conclude that SQ 755 cannot override the U.S. Constitution.

Choice of Law

Furthermore, SQ 755 impairs the freedom of contract. In a dynamic global economy, legal systems accommodate parties’ considered decision to choose a law that would govern their contract and allows the parties to choose a forum to resolve potential contract disputes. The Shariah is the choice of law in numerous international contracts. In 1995, a Saudi Arabian corporation entered into a multi-million dollar contract with an American telecommunication company. The parties agreed to subject the contract to the Shariah law. Ruling on a breach of contract lawsuit, a United States Court enforced the Shariah law as the parties’ choice of law – and rendered a Shariah ruling that was indeed favorable to the American corporation.

Under SQ 755, Oklahoma courts would be obligated to disregard the parties’ choice of law if it were the Shariah law. Even more importantly, SQ 755 inaccurately presumes that Oklahoma businesses, which may opt for the Shariah law in international transactions, would always be better off under the Oklahoma contract law than they would be under the Shariah law. In doing so, SQ 755 disregards Oklahomans’ freedom of contract to make legally savvy and profitable business decisions. SQ 755 will also have a chilling effect on international investments. The ban on Oklahoma judges’ discretion to consider international or Shariah law will discourage international businesses from investing in Oklahoma or consenting to the jurisdiction of Oklahoma courts.

Family Rights

Thousands of Muslim families, derived from diverse ethnic groups, domestic and foreign, live in various cities of Oklahoma. Some of these families are native to Oklahoma, and some have migrated from Muslim states, including Egypt, Palestine, and Pakistan. For centuries, U.S. common law has recognized marriages contracted in foreign countries. Accordingly, a marriage that is valid under the law of the state or country where it is celebrated is valid in Oklahoma unless it is repugnant to public policy.

Under SQ 755, marriages contracted under the Shariah law of Egypt, Palestine, or Pakistan would no longer be valid because their validity will depend upon “considering or using” the Shariah law that SQ 755 specifically prohibits. For example, a couple married in Egypt will be unable to enforce their marital rights in Oklahoma because the Shariah marriage cannot be recognized under SQ 755. This invidious discrimination regarding the recognition of Shariah marriages will greatly impact the marital and family rights of numerous law-abiding Muslim citizens of Oklahoma. The non-recognition of Shariah marriages will also undermine the rights of children from these marriages who are born in Oklahoma.

Air of Bigotry

While Oklahoma courts have been burdened with the impossible task of removing the Shariah law from the daily life of Muslim communities, SQ 755 spreads bigotry and prejudice throughout the state. Since 1995, when Timothy McVeigh, a U.S. army veteran, detonated a truck bomb in front of the Alfred P. Murray Federal Building in Oklahoma City, Muslims in Oklahoma have been singled out for unfair treatment and blatant discrimination. Muslim women have been denied jobs and drivers’ licenses for wearing the headscarf. A number of Oklahoma newspapers have detailed discrimination stories against Muslim men and women. Additionally, politicians, including Rex Duncan, a lawyer by profession, continue to stir hatred against Muslim citizens of Oklahoma. Duncan’s commentary on SQ 755 shows that the amendment is certainly focused on Shariah law and not international law. SQ 755 is an attempt to demonize the Muslim population in Oklahoma.

Ironically, in an effort to ensure only the application of Oklahoma law and U.S. Constitutional law, SQ 755 itself violates Article VI, clause 2 of the U.S. Constitution’s mandate that all treaties and laws of the United States (including customary international law) be the supreme law of the land and binding on all state judges – notwithstanding any contrary state law. Fortunately, many Oklahoma residents, civil liberties and human rights organizations alike have recognized the unenforceability of SQ 755. A significant thirty percent of Oklahoma voters voted against SQ 755. We hope that the Oklahoma courts will find a way to discard SQ 755 from the fabric of the law.

Ali Khan is professor of law at Washburn University in Topeka, Kansas.
Jasmine Abou-Kassem is an attorney with the law firm of Polsinelli Shughart, P.C. in Kansas City, Missouri.

Mosques and Mount Rushmore: The debate over what’s sacred

2010-09-04T06:16:00.000-05:00

By Simon Moya-Smith

Story Published: Aug 31, 2010

So the controversy – for the moment – is over the mosque slated to be built near the site of the World Trade Center bombings in New York City. Don’t you worry, we’ll get back to that ugly immigration debate momentarily.

I feel compelled to share some not-widely-known wisdom with my mosque-naysayers, for if there’s one thing citizens in this country get instantly aroused by it’s some good old American Indian wisdom.

So here you go, folks.

Since time immemorial, the Black Hills in South Dakota have been a holy place for the Lakota Sioux – my people. And to the Lakota, the Black Hills is where life began. Although the story of creation significantly differs between Sioux and Christians – our messenger from the Creator came in the form of a woman – Paha Sapa is not unlike Christianity’s Eden in its significance.

But here is where today’s debate over the mosque and my peoples’ sacred site come together: It didn’t matter to the Christians, those innumerable settlers who came West seeking gold, land, riches and religious freedom (ironically) that the Black Hills was our holy site, our sacred location, our Jerusalem. No. What mattered was that their monument – Mount Rushmore – be chiseled into it.

If only we were lucky enough to have seen Christians build their institutions and monuments near our holy sites, and not on them.

And the key word here is “on,” not “near.” The American Muslim community wants to build their 13-story mosque near the World Trade Center bombing site, not on it. If only we – American Indians – were lucky enough to have seen Christians build their religious institutions and monuments near our holy sites, and not on them.

And for some odd reason, the desecration of the Black Hills continues in the form of the Crazy Horse monument, still in construction. Although it is said that the Lakotas have supported the depiction of the never-photographed war leader be etched on its rock face, I remain of the opinion that Crazy Horse would want his likeness carved into the Black Hills as much as a priest would like someone disfiguring his cathedral.

Sadly, and much to my chagrin, there seems to be no end in sight to the desecration of American Indian sacred locations.

Take Denver International Airport, for example; built in 1995 and only 20 minutes east of downtown, DIA is on sacred Indian burial ground, and it now appears the city is considering a $1 billion facelift of the airport including the construction of more facilities.

If the voices of protest aren’t speaking loudly enough, the spirits most certainly are.

Pass through any one of the concourses at DIA – especially Terminal A – and one will detect the subtle, familiar sounds of American Indian flute. The high harmonies play on a continual loop, serenading frequent fliers from camouflaged speakers behind glass cases displaying old Indian trinkets and blouses.

These flute tunes aren’t there to pay homage to the Plains Indians that once inhabited the area. Nor do they play to create a “Welcome to the West” ambiance for airport patrons on layover to Seattle. No. The Indian flute plays to pause the pranks and creepy occurrences that sweep the facility.

During construction, innumerable unexplained phenomenon occurred at DIA, and reportedly continues today 15 years after its unveiling. In the late 1990s, airport big shots summoned Colorado American Indian elders to place blessings on the airport in a last ditch effort to settle the restless spirits and mitigate the often frightening events airport staff were reporting on a consistent basis.

In 2000, paranormal researcher Dennis William Hauck placed Denver International Airport on his list of spooky spots around the world in his book “The International Directory of Haunted Places.” Whether you believe in the paranormal or not, the principle matter still looms: A building was constructed on a sacred site.

Christians obviously feel they have the constitutional right to build what they want, where they want, when they want. I find it most hypocritical that the same Christians who are for building edifices on sacred Indian sites are the very same voices of opposition toward the construction of a Muslim mosque near Ground Zero.

So I present the obvious: Why not build a mosque near the hallowed grounds of the WTC? American Indian holy sites are desecrated by Christians all the time.

I am one of the last few true Natives in this country, and I don’t expect many or any outside Indian country for that matter to subscribe to, or even comprehend, this rare perspective. But for the sake of doing away with double standards, I think this unfortunate reality for Indian peoples was worth pointing out.

Now back to the immigration debate.

Simon Moya-Smith is a political science graduate from the University of Colorado Denver and a Denver, Colo. reporter/blogger. Visit his blog at http://iamnotamascot.blogspot.com. Follow him on Twitter at www.Twitter.com/IAmNotAMascot.

Ground Zero's Muslim Slaves

2010-08-27T11:03:00.000-05:00

Ground Zero's Slave Graves
By Jen Phillips | Wed Aug. 25, 2010 4:32 PM PDT

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The outrage about the "ground zero mosque" has turned very ugly, as this video [1] of this recent protest shows. People are calling Mohammed a pig. A New York City cab driver was stabbed today [2] after his passenger asked him if he was Muslim. But I find the righteous outrage of those contending the former World Trade Center site is "hallowed ground" amusing, because they have no idea just how right they are. Before the World Trade Center was even designed (with Islamic architectural elements [3], incidentally), the ground was indeed sacrosanct: The bones of some 20,000 African slaves are buried 25 feet below Lower Manhattan. As at least 10 percent [4] of West African slaves in America were Muslims, it's not out of bounds to extrapolate that ground zero itself was built on the bones of at least a few Muslim slaves. That is to say, hallowed Muslim ground.

For some time, activists, historians, and city officials have been working together to excavate and preserve [5] the bones of the slaves buried under present-day lower Manhattan. A recent excavation of a 14,000 square foot section of the six-acre burial ground found that 92 percent of the 419 skeletons were of African descent, and 40 percent were children [6] under 12. The bones of the 419 slaves were eventually reinterred.

African slaves couldn't be buried in New York City itself [7], so they were put to rest along the city's then-northern border, near present-day Chambers Street. The exact borders of the burial ground are fuzzy, and experts say that without test digs, they won't be able to tell how far it extends. The area they've excavated so far ends just a block or two from ground zero, but with the huge number of African slaves that lived and died in New Amsterdam, I find it hard to believe the burial grounds didn't extend further.

At any rate, some of the slaves' belongings were definitely at ground zero: About 100 boxes of artifacts [8] from the African graves were stored at 6 WTC, which was crushed by the North Tower on 9/11, but thankfully archivists were able to recover them. [8] A few of the items were strings of blue beads found buried with the slaves...which some think could be Islamic prayer beads.

Park51 won't even be at ground zero proper (across from Brooks Brothers or the Century 21 department store). But if it were, it would still be perfectly defensible. In fact, since WTC was likely built over the centuries-old bones of Muslim slaves, it would be a downright blessing.

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Source URL: http://motherjones.com/mojo/2010/08/ground-zero-was-built-graves-slaves
Links:

Floods in Pakistan

2010-08-21T09:13:00.002-05:00

Bull Cart Race in Pakistan

2010-05-21T15:41:00.000-05:00

Pakistan's 18 th Constitutional Amendment

2010-05-05T08:13:00.003-05:00

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Volume 27 - Issue 10 :: May. 08-21, 2010
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU • Contents

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Act of Transition

ANITA JOSHUA
in Islamabad

A YEAR and a half after he negotiated his way into Aiwan-e-Sadar (the President’s House) from Zardari House as the “custodian” of the Bhutto legacy, Pakistan President Asif Ali Zardari has made his own place in the nation’s tumultuous political history – courtesy the 18th Amendment, which restores parliamentary democracy and the federal structure envisaged by the 1973 Constitution.

A Pakistan President surrendering power caught the imagination of the domestic and international media as well as the public to such an extent that the Constitutional Reforms package – which has suggested close to 100 amendments as part of a mega exercise to overhaul the country’s structure of governance – has become almost synonymous with Zardari transferring powers from the presidency to Parliament.

And, he does not hide his intent. Addressing the joint session of Parliament on April 5 after the 18th Amendment Bill was tabled, Zardari said: “By standing in their shadows [former Prime Ministers Zulfiqar Ali Bhutto and Benazir Bhutto] today and empowering Parliament, I hope to walk into the annals of history.” And he did just that when he put his signature to the Bill and made it a law on April 19.

After he pushed for the early passage of the Bill, king-sized posters of Zardari appeared at vantage points in Islamabad; the Bhutto father-daughter duo was relegated to the background in them in a clear attempt by Zardari to step out of the shadows of the country’s first family. He could now command respect – however reluctant – that neither the Bhutto legacy nor the status of President fetched him.

But, now that the euphoria over the removal of the vestiges of military rule and the transition from a presidential to a parliamentary form of government has died down, the question that is being asked is whether Zardari has been actually weakened. At the individual level, the answer is a clear no since Zardari remains the power centre for the ruling Pakistan People’s Party (PPP). He is its co-chairman and his writ runs in party circles.

Which is why former Prime Minister Nawaz Sharif’s Pakistan Muslim League (PML-N) has been making a lot of noise about Zardari’s dual role. Its leaders feel that the President could undermine the constitutional reforms by using his position as PPP co-chairman in order to control the government. The 18th Amendment Act has, in fact, strengthened Zardari’s hand over the PPP parliamentary party as it is now he, and not the leader of the parliamentary party, who will declare the defection of a legislator if he or she votes against the party line in the legislature.

While this scenario is specific to the present ruling arrangement, another law has also attracted a lot of interest in recent times. Ali Khan of Washburn University School of Law maintains that the abolition of Article 58(2)(b) is an exercise in futility. This Article allows the President to dissolve the National Assembly if “a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of the Constitution....”

Article 58(2)(b) was once abolished and later reinstated. Introduced by President Gen. Zia-ul-Haq, it was abolished by Nawaz Sharif in the late 1990s and was brought back by Gen. Pervez Musharraf. In between, it was used thrice by civilian Presidents to dissolve the National Assembly and dismiss Benazir Bhutto’s democratically elected governments in 1990 and 1997, and Nawaz Sharif’s in 1993. Besides, Article 58(2)(b) disables the President, not the Army chief. According to Prof. Ali, military takeovers have occurred not because of loopholes in the Article, but in violation of the Constitution.

This view is shared by Hasham Baber of the Awami National Party (ANP), a constituent of the ruling coalition at the Centre. He points out that amendments to Article 6, which describes subversion of the Constitution as “high treason”, has made military intervention difficult as now it cannot be validated by any court. He concedes that “unless democracy takes roots in Pakistan and the military is cut down”, there will be no foolproof safeguard against an Army takeover.

Herein lies the irony. In the name of democracy, bitter political opponents buried their differences and put their collective weight behind reforms that included abolition of Article 17(4) – which made it necessary for every political party to hold intra-party elections to elect its office-bearers and party leaders. Though some members individually protested against this amendment when it was put to vote, the dynastic nature of the leadership of most dominant political parties saw it sail through.

Prima facie, the reason for abolishing this provision was that it was introduced by Gen. Musharraf to control parties and the Constitution cannot micro-manage party functioning. If that is the case, argues Kashmala Tariq of Pakistan Muslim League - Quaid (Like-Minded Group), a breakaway group of the PML-Q, then why was Article 17(3) retained? “Doesn’t asking every political party to account for the source of its funds amount to micro-management? All the major political parties – be it the PPP, the ANP, the PML (both N and Q) – have become family ventures and each has a new generation waiting in the wings. So the very champions of democracy ganged up to remove a clause that would have allowed democratic practices to take root,” she says.

Dichotomy in attitude

A poster of President Asif Ali Zardari and Prime Minister Yousuf Raza Gilani outside the Parliament building in Islamabad on April 5.

Most party leaders concede guilt. While PML-Q secretary-general Mushahid Hussain lamented the dichotomy in the attitude of the ruling elite, which condemns military dictatorship but condones the lack of democracy within its own political outfits, Hasham Baber insists that Pakistan’s democracy is too immature to deal with the pulls and pressures of intra-party squabbles. “It needs to evolve, and these reforms cannot be an end but the beginning of a process,” he says. Academics and civil society activists insist that the ruling elite – be it political or military – should develop a culture for the respect of law.

As Ali Khan put it: “Law cannot do anything if the culture of the ruling elite is lawless. Law works only when there is a will to respect the law. I don’t see how respect for law can be generated by merely making amendments to the Constitution. Constitutional amendments are great national events, particularly when they are made in the aftermath of a dictatorship. Pakistanis have a right to celebrate the change. Euphoria is a burst of energy, not a commitment to the rule of law. Whether the ruling elites have indeed changed for the better is an open question.”

Only time will tell how effective the 18th Amendment is in keeping the military at bay. It is an open secret that the Army still has the upper hand on matters of foreign policy – particularly relations with India and Afghanistan – and the “establishment” remains a feared entity that makes radical votaries of democracy ever watchful of their steps and mindful of their shadows.

Security Obssessions Undermine Constitutional Rights

2010-02-11T06:53:00.001-06:00

PHILADELPHIA: Federal agents detained and interrogated a US college student at the Philadelphia airport simply because we was carrying a set of English-Arabic flashcards, a lawsuit alleged on Wednesday.

The American Civil Liberties Union said it filed the suit on behalf Nicholas George, 22, a language student at Pomona College in California who was held at Philadelphia International Airport for nearly five hours in August 2009.

George, a US citizen from the Philadelphia suburb of Wyncote, was on his way back to college when airport security officers found him carrying the flashcards, each of which had an English word on one side and its Arabic equivalent on the other, the ACLU said.

The US Transportation Security Administration questioned him, and a TSA supervisor asked him how he felt about the Sept. 11 attacks, whether he knew “who did 9/11,” and whether he knew what language Osama bin Laden spoke, the ACLU said.

He was handcuffed and left in a locked cell for two hours before being “abusively” interrogated by two FBI agents, but was never told why he was being detained, the ACLU said.

The lawsuit, filed in US district court for the Eastern District of Pennsylvania, charges that officers from the TSA, FBI and Philadelphia police violated George's constitutional rights of free speech and to be free from unreasonable seizure.

“As someone who travels by plane, I want TSA agents to do their job to keep flights safe,” George said in a statement.

“But I don't understand how locking me up and harassing me just because I was carrying the flashcards made anybody safer.”

Neither the federal agencies nor the Philadelphia police could be reached for comment.

Challenging the culture of denial

2010-01-10T11:38:00.000-06:00

Challenging the culture of denial
From John McHugo
From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949, Victor Kattan

Pluto Press, London, 2009, £22.99
ISBN: 9780745325781

A legal historian cannot bring a murder victim back to life, but what they write may have a powerful impact on how attitudes change or unresolved disputes are reassessed. This is particularly so when (as in the Israeli-Palestinian dispute) the issues are emotive and the parties have a desperate need to believe that their positions rest on firm moral foundations.

In From Coexistence to Conquest, Victor Kattan takes international law as his standpoint from which to examine the issues of the Palestine problem up to the 1949 armistices and the failure to resolve the dispute at that time. The book includes chapters on the relationship between Zionism, colonialism and anti-Semitism, the scramble for the Ottoman Empire (which Kattan sees as essentially part of the same process as the scramble for Africa) during and after the First World War, the Hussein-McMahon correspondence, Palestinian opposition to political Zionism, the nature of the right to self-determination of the inhabitants of the Palestine Mandate, the partition of Palestine, the refugee question, and the creation of Israel as a sovereign state. He has mined a rich seam of opinions by law officers in London and Washington, legal writings and court and arbitration decisions which political historians would find difficult to assess without a good background in international law.

Kattan makes a strong case that the pledges made in the Hussein-McMahon correspondence for an independent Arab State after the First World War which would include Palestine were legally binding on Britain. This may seem to be of purely antiquarian interest now, but sensitivity over the letters is still evident in the work of historians such as Karsch and Fromkin who would like to be as dismissive of them as possible. The pledges they contained may be dead, but they are still relevant when interpreting the Balfour Declaration, or considering the good faith (or lack thereof) of British politicians such as Balfour, Lloyd George and Churchill, and Zionist leaders such as Weizmann and Ben-Gurion.

The core of the book, however, is the author’s research into the legal archives concerning the Mandate, the partition, the refugee problem and the creation of Israel. The Israeli ‘New Historians’ have shown that much of the Palestinian narrative can be corroborated from declassified Israeli archives. Kattan now provides additional confirmation from legal writings in London and Washington, while asking why so many eminent legal scholars have been reluctant to challenge the Israeli narrative. He argues that the use of force by the Yishuv to establish a Jewish State in Palestine was unlawful while, conversely, Arab attempts to prevent the land-grab by the new State of Israel can be seen as a form of humanitarian intervention.

He also examines the question of how Israel acquired legal title to its territory in 1948-49 – a topic which previous legal studies such as Sharon Korman’s The Right of Conquest and the main textbooks and reference works have glossed over or conspicuously avoided. Kattan’s view is that Israel acquired sovereignty over its territory by an illegal conquest. In arguing this, he has challenged a taboo that needs to be lifted. Even if there are some who would prefer to ignore it, his view deserves a proper academic debate – over to you, Alan Dershowitz!

On the question of Palestinian refugee rights, Kattan uses legal principles to distinguish the case of the expelled Palestinians from the fate of other groups such as the Sudeten Germans and the populations exchanged between Greece and Turkey in 1923. In doing so, he strikes an incidental blow at the moral equivalence of those who argue that the existence of one injustice makes the commission of another acceptable. He also shows how tantalisingly close the Arab-Israeli dispute was to a negotiated settlement in 1949, and how Israeli obduracy over the return of a substantial number of non-Jewish refugees was a major – or even the major – cause of the failure to reach a settlement. We still live with the consequences of this.

Sometimes the book turns from legal issues to political and intellectual history, as when the author explores the unpleasant aspect of the Zionism of Balfour and others who did not want too many Jews (particularly Jews from Eastern Europe) in their own country, and what might be called the co-dependent relationship which Zionism has had with anti-Semitism and imperialism. Although he is writing from a legal perspective, it is right for Kattan to focus on such matters. They form the essential background to the interpretation of such key documents as the Balfour Declaration and to understanding the inception and history of the Palestine Mandate. No legal case can be understood without mastering the facts on which it is based, including the motives and intentions of the main witnesses. Even if you are not interested in international law, the book is well worth reading for its coverage of history.

The author is to be congratulated, and one hopes for a sequel covering the subsequent legal history of Israel-Palestine. The interesting question now is whether scholars whose work is written from a Zionist perspective will challenge or ignore his arguments. Kattan has shown up the ignorance and denial of historical fact which animate tracts like Lauterpacht’s Jerusalem and the Holy Places and Schwebel’s What Weight to Conquest?

I suspect those who take comfort from the support for Israeli expansionism in such writings by otherwise distinguished legal scholars will be reluctant to engage him in honest debate.

This book is ultimately about morality as well as legality. Although these two concepts overlap, they are always distinct. But when one party to a dispute tries to negotiate an agreement while denying the other its legal entitlements, it shows that it has lost its moral compass and subsists on a culture of denial made possible by the principle of ‘might is right’. But no culture of denial can endure indefinitely. From Coexistence to Conquest brings closer the day when the culture of denial that underpins the Greater Israel lobby must fall apart.

John McHugo

The Sovereignty of Muslim Nations

2009-12-18T09:33:00.002-06:00

A Casualty of US Foreign Policy

The United States has adopted an invasive foreign policy that violates the sovereignty of many Muslim nations. Article 2(4) of the UN Charter promulgates: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Territorial integrity and political independence are the principles of national sovereignty -- key principles of the UN Charter and post-colonial international law – which empower nations to freely determine their political, social, economic, and religious institutions, without external coercion, diplomatic pressure, war threats, and economic sanctions. Philosophically, these principles respect human diversity and presume that no system, including liberal democracy, can be the singular model for all nations. The principles caution against any mindless importation of legal and political systems successful in other nations. Accordingly, the peoples of the world are free to institute political systems of their choice, including constitutional monarchies, presidential systems, secular or religious forms of government.
Contrary to the UN Charter, and in blatant violation of the principles of territorial integrity and political independence, the US is determined to forcibly shape the Muslim world in its own image. Part of this determination mirrors the American mindset that Muslim nations would indeed be better off if they simply borrow secular institutions of the United States. This evangelical mindset presumes that Islam is a reactionary religion that impedes material prosperity and social justice. Part of this determination reflects the dark side of American self-pride and super-power exceptionalism, which sees most other nations as the lesser children of God in need of American guidance. Undoubtedly, the US foreign policy is also geared toward obtaining key natural resources (such as oil) and maintaining strategic military dominance in various Muslim regions of the world.
For most part of the twentieth century, Muslim nations, some emerging from the colonial yoke, approached the US for economic assistance, development, and even protection against regional and global enemies. For example, the US played a supportive role in the independence of Indonesia, the largest Muslim nation. The fear of the Soviet Union, which had occupied Central Asian Muslim nations and later invaded Afghanistan, drove many other Muslim nations to seek US patronage. For a variety of reasons, the US succeeded in constructing strategic alliances with key Muslim nations, including Saudi Arabia, Egypt, Turkey, Pakistan, and Iran under the Shah.
The relations with the Muslim world, however, began to fracture as the US foreign policy favored Israel in the Middle East conflict. The 1979 Iranian revolution painted the US as the Great Satan, and highlighted the immorality of US foreign policy that subsidizes cruel and inhuman occupation of Palestine and institutes puppet governments in Muslim countries. A few years later, the Al Qaeda, an international militant organization, launched asymmetrical warfare against US targets to draw attention to the occupation of Muslim lands. In countering terrorist attacks, the US bombed Tripoli and Khartoum, the capitals of Libya and Sudan, ratcheting up the conflict with Muslim nations.
The 9/11 attacks and subsequent invasions of Afghanistan and Iraq have further fractured relations with the Muslim world. The US homeland security and the associated legal rhetoric of self-defense and the war on terror have been invoked to establish a new justificatory paradigm for violating territorial integrity and political independence of Muslim nations. The phraseology of “Islamic fascism” and “Islamic terrorism” paints Muslim militants as inherently violent individuals who kill to please God and to go to heaven. Almost every Muslim nation, foe or friend, is under intense US diplomatic pressure to launch attacks on national militants even if such attacks kill innocent civilians.
The US logic of homeland security is weighing heavily on Afghanistan, where the war machine has killed thousands of civilians in pursuing the dubious goal of defeating the Taliban. Even Pakistan, a subservient ally, has been subjected to drone attacks while Pakistan’s democratically elected government and its armed forces are helpless in protecting the nation’s territorial integrity and political independence.
In addition to military attacks, the US foreign policy employs subversive modus operandi. The 2006 Iran Freedom Support Act allocates millions of dollars authorizing US intelligence agencies to support groups opposed to the Iranian government. This law is fashioned after the Iraq Liberation Act of 1998, a law that paved the way for invasion and the overthrow of Saddam Hussein. The threats of attacking Iran are in the air. Meanwhile, US intelligence agencies enjoy the legal mandate to destabilize the Iranian government and possibly reverse the Islamic revolution by sowing seeds of confusion and anarchy.
Unfortunately, these massive violations of the UN Charter, specifically of the principles of territorial integrity and political independence, go unnoticed. The UN officials are silent over these violations as if Article 2(4) does not exist. The US foreign policy remains the same under President Obama, who promised to mend relations with Muslim nations. Meanwhile, US policymakers continue to talk about winning hearts and minds of Muslim populations. Iraq, Afghanistan, Pakistan, Sudan, Syria, Palestine, Iran, with so many Muslim countries on the US hit-list, it is unclear how a foreign policy of territorial aggression, invasion, and subversion can generate goodwill that the US seeks in the Muslim world.
Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas and the author of A Theory of universal Democracy (2006).

Anti-Islamic Torture

2009-11-17T10:37:00.000-06:00

This Essay focuses on faith-based torture perpetrated against Muslim detainees, torture that was crudely designed, only minimally seeking security-sensitive information. However, anti-Islamic torture - which has profoundly offended Muslim communities throughout the world - reaffirms the dark side of U.S. government policies that periodically single out populations, domestic and foreign, and subject them to cruelty. This dark side is evidenced by the degradation of Native Americans, enslavement of Western Africans, internment of Japanese-Americans, and slaughtering of the Vietnamese. More specifically, anti-Islamic torture has undermined what were sincere and substantial efforts of many American institutions to promote religious freedom at home and abroad. Today, indignant American citizens and organizations are seeking to prosecute lawyers and politicians who designed and endorsed torture, partly because torture policies have soiled the honor of the U.S. as a beacon of liberty. Downloas the article

Now Pakistan - Sequential Destruction of Muslim Nations

2009-10-17T18:52:00.002-05:00

A conspiratorial view of the world is frequently inaccurate, exposing more the paranoia of the view rather than the reality of the world. The sequential destruction of Muslim nations -- Palestine, Iraq, Afghanistan, Pakistan, (and Iran is on the list) --- may or may not be a conspiracy hatched in Washington D.C., but it is becoming an international reality. It is no secret that the United States and Europe, with varying degree of mutual cooperation and some make-believe internal discord, superintend the sequential destruction of Muslim nations. This War of Sequential Destruction (WSD), despite Nobel-Laureate Barack Obama's denials, refuses to go away.

The WSD is multi-frontal. It crosshairs Al-Qaeda, Taliban, Hezbollah, Hamas, Al-Bashir, Ahmadinejad, Sunni, Shia, Wahabi, Gaza, Iraq, Syria, Sudan, Iran, Afghanistan, and now Pakistan. Many Western policymakers rarely see Muslim nations, including allies, with any inherent respect. Vice President Dick Cheney described the Muslim world as "brute and nasty." Obama advisers, though more guarded in their word choices, see Muslim nations no differently. The idea that Islam is inherently violent, openly expressed during the Bush administration, continues to animate foreign policy. The White House holds a new President but Congressional leadership and Washington policymakers are more or less the same. Anti-Islamic policies of warfare and destabilization are intact.

Therefore, the WSD will continue and gather momentum. The picture is not pretty. Palestinians are penned in misery and their territorial cage is constantly shrinking to meet the "natural growth" of vociferous settlers. Oil-rich Iraq is under American occupation and its communities have been torn apart with irreversible harm. Afghanistan, one of the poorest nations in the world, is placed under the boots of Western armies. Thousands of Afghans have been murdered, their houses bombed, their villages devastated. The International Criminal Court headquartered in Holland has indicted the first sitting head of the state, the Muslim President of Sudan. The United States and Europe, themselves armed with thousands of nuclear heads, are strategizing to punish Iran for asserting a treaty-based right to produce nuclear energy, leaving open the option of attacks on Iranian nuclear facilities.

After razing Iraq and Afghanistan, the WSD has now turned to ravage an ally, Muslim Pakistan. Pakistan is a nation that the British, in 1947, carved out of India and that India, in 1971, broke into two, liberating Bangladesh from the murderous clutch of the Pakistani military. Over the past sixty-two years, Pakistan's military and civilian rulers, one after the other, and without exception, have turned to America for military training, weapons, money, and strategic instructions. Eager to send their sons and daughters to Western cities for education and employment, Pakistani politicians, generals, and bureaucrats all look for ways, and create the ways, to oblige Western capitals, particularly Washington D.C. Partly for personal interests and partly out of faulty readings of geopolitical situations, Pakistani rulers, like most rulers in Muslim nations, frequently compromise national sovereignty and public welfare.

The Pakistani orientation for self-destruction serves American interests. Facing a failing campaign in Afghanistan, Obama advisers decided to expand the war into Waziristan and other parts of Pakistan. The United States desperately solicited the Pakistani military to join the Afghan war. Pakistani rulers, this time a democratically elected government, listened to the American call. They first permitted the CIA to fly drones armed with missiles, which killed a few militants but hundreds of civilians in the tribal areas. The United States later urged Pakistan to invade Swat to kill militants. Pakistan did. Millions of civilians were made homeless.

The reaction to drone attacks and the ground offensive in Swat was fierce. Pashtun and Punjabi militants began to attack soft and hard targets. They attacked police stations, military trucks, and even the military's fortified headquarters in Rawalpindi. Citing these counter-offensives as a threat to Pakistan's national security, the United States urged the Pakistani military to launch a ground offensive in Waziristan. The rulers listened to the call and sent 30,000 troops to Waziristan. Muslims fighting Muslims have been efficacious in weakening the Iraqi militancy. The same formula, Obama advisers are betting, will crush the Pashtun resistance in Afghanistan.

Certainly, the United States can kill hundreds of thousands of Pashtuns on both sides of the AF-PAK border, even if no more troops are dispatched to the region. Killing militarily weak populations requires no sophisticated military strategy. The convenient but thoroughly demonized label of "Taliban" provides the rhetorical shield to justify the ghastly massacres of civilians. Since Pakistani military has joined the war, killings on both sides of the border will become even more robust. These killings will carry an air of logic, even legitimacy, since no military presumably kills is own people unless it sees a threat to national security.

Under coercion, Pakistan has started a civil war that will consume its economy, national security, and tear apart its social fabric. The civil war will spill into many parts of Pakistan. It already has arrived in some parts of Punjab. Militants are unlikely to confine this war to sparsely-populated Waziristan. They are taking the war to the most populated cities, including Peshawar, Rawalpindi, and Lahore. Karachi, which appears to be quiet, is sitting on a tinderbox. Karachi can erupt any minute as its ethnic rivalries are primed for a civil war. It is sheer foolery and a grave analytical mistake to presume that the Pakistani military offensive will provoke no one but only a few misguided militants in the North.

It is not yet too late for Pakistan to return from the precipice of national suicide. Pakistan must take a U-turn and preempt the civil war. Pakistan must say an emphatic no to President Obama who must also carefully weigh the stakes of expanding the WSD to Pakistan. If the NATO forces cannot subdue the militancy in Afghanistan, adding one more military into the battlefield will not solve the problem of occupation and resistance. Furthermore, an internally torn Pakistan does not weaken but empowers militants. Obama advisers must ponder over one thing more: The people of Pakistan, like the people of Iran under the Shah, might rise to oppose the US hegemony over their internal affairs.

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Professor Ali Khan, an editor of MWC News, is a professor of law at Washburn University School of Law in Topeka, Kansas.

American Aid and Pakistan's Sovereignty

2009-10-10T06:10:00.003-05:00

The Ramadan Drummer

2009-09-14T13:24:00.002-05:00

Mohammad Boota plays for an audience of one outside a Pakistani business in Brooklyn. Photo: The New York Times

By Kirk Semple

A FEW hours before dawn, when most New Yorkers are asleep, a man rolls out of bed in Brooklyn, dons a billowy red outfit and matching turban, climbs into his car, drives 15 minutes, pulls out a big drum and - on the pavement of a residential neighbourhood - starts to play.

Mohammad Boota is a Ramadan drummer. Every morning during the holy month, drummers stroll the streets of Muslim communities around the world, waking worshippers so they can eat a meal before the day's fasting begins.

A Pakistani immigrant, Mr Boota has spent the past few years learning uncomfortable lessons about noise-complaint hotlines, profanity and the crankiness of non-Muslims rousted from sleep at 3.30am.

''Everywhere they complain,'' he said. ''People go, like, 'What the hell? What you doing, man?' They never know it's Ramadan.''

Mr Boota, 53, who immigrated in 1992 and earns his living as a limousine driver, began waking Brooklynites in 2002. At first he moved freely around the borough, picking a neighbourhood to work each Ramadan morning.

As the years went by, he and his drum were effectively banned from one neighbourhood after another. He now restricts himself to a short stretch of Coney Island Avenue where many Pakistanis live.

Fearing that even that limited turf might be threatened real estate for him, he has modified his approach even further - playing at well below his customary volume, for only 15-20 seconds in each location, and only once every three or four days.

Mr Boota wants to be a good American, and a good Muslim. ''I don't want to bother other communities' people, just the Pakistani people.''

Several prominent Islamic organisations in New York said they knew of no other drummers who played on Ramadan mornings. But while the custom's usefulness has been largely eclipsed by the invention of the alarm clock, it has hung on in many places.

For Mr Boota, drumming is a family tradition. He is a seventh-generation ceremonial drummer and is now training his son Sher, 20, one of eight children. In addition to his Ramadan reveilles, Mr Boota plays at Pakistani weddings, birthday parties, graduation celebrations and other events.

During his rounds the next night, he stopped at a Pakistani-run service station and unloaded his drum in the service bay. He wanted to demonstrate the full capacity of his instrument. One of the mechanics slid the heavy doors shut, and Mr Boota started to play at full volume. ''It's a great noise,'' he said.

NEW YORK TIMES

Islamic Banking Surges

2009-08-31T04:09:00.001-05:00

ASSETS held by the world's 100 biggest Islamic banks grew 66 per cent in 2008 from the previous year despite the financial turmoil that clobbered mainstream lenders, a report said on Friday.

The top 100 Islamic banks held assets totalling US$580 billion (S$836 billion) last year, up from US$350 billion in 2007, according to an annual report by The Asian Banker, a magazine for financial professionals.

In the same period, Asia's 300 biggest banks saw their assets rise by a much slower 13.4 per cent, it said.

A financial storm sparked by a crisis in the US housing market swept across the world late last year. Its impact spilled over into the general economy and sent several countries into recession. Prominent US investment bank Lehman Brothers collapsed into bankruptcy, while several other major Western banks suffered massive losses. 'Despite the financial turmoil in late 2008 that crippled so many large Western institutions, Islamic banks have continued to grow in prominence and size,' the magazine said in a press statement.

Emmanuel Daniel, the magazine's president and chief executive, added: 'Islamic finance has seen an incredible surge in popularity, based on stronger regulatory regimes and a better international understanding of its dynamics.'

Illinois Senate opposes Afghan war

2009-06-25T09:29:00.002-05:00

The great freedom state, the state of Illinois, is on the right track and all peaceloving citizens of the United States would be pleased to know what the State of Illinois has done. The Illinois Senate has passed a resolution against the war in Afghanistan. Here are some excerpts of Illinois State Senate Resolution Opposing Afghanistan War:

RESOLVED, That on behalf of the citizens of Illinois, the Senate believes that it is not in the national interest of the United States to deepen its military involvement in Afghanistan, particularly by escalating the United States military force presence in Afghanistan, that the 17,000 U.S. troops in Afghanistan should be recalled from there, and that we should concentrate on capturing Osama bin Laden; and be it further

RESOLVED, That the primary objective of United States strategy in Afghanistan should be to have the Afghani political leaders make the political compromises necessary to end the violence in Afghanistan; and be it further

RESOLVED, That greater concerted regional and international support would assist the Afghanis in achieving a political solution and national reconciliation; and be it further

RESOLVED, That the United States should engage nations in the Middle East to develop a regional, internationally sponsored peace and reconciliation process for Afghanistan; and be it further

RESOLVED, That the United States should transfer, under an appropriately expedited timeline, responsibility for internal security and halting sectarian violence in Afghanistan to the Government of Afghanistan and Afghani Security Forces from American military personnel; and be it further

Here is the full text of Illinois Senate Resolution against the Afghan war

A Civil War: Obama's Gift to Pakistan

2009-06-17T01:09:00.002-05:00

A civil war is brewing in Pakistan. Thanks to President Barack Obama, who is shifting the American war from Iraq to “the real enemies” operating from Afghanistan and Pakistan. Cash-strapped Pakistan could not defy Obama persuasion and decided to wage a war against its own people, the Pashtuns inhabiting the Northern Province and the tribal areas of Waziristan.

Decades ago, Pakistan waged a similar war against its own people, the Bengalis in East Pakistan. In 1971, the Pakistani military charged to wipe out Mukti Bahini, a Bengali resistance force, paved the way for the nation’s dismemberment. In 2009, the military is charged to eliminate the Taliban, a Pashtun resistance force. History is repeating itself in Pakistan—as it frequently does for nations that do not learn from past mistakes. Read the entire article

Do Taliban Pose Threat to Pakistan

2009-04-28T13:39:00.003-05:00

Drone Attacks on Pakistan's Indigenous Tribes

2009-04-20T09:59:00.001-05:00

Since August 2008, nearly 60 drone strikes in tribal and other northern areas have massacred over 500 individuals belonging to a population that qualifies as indigenous people under international law. The majority of victims are poor and frightened men, women, and children. They have little to do with militants who are fighting the NATO occupation forces in Afghanistan. To escape future drone massacres of their families, thousands of residents living in target areas, have left their homes and businesses to seek asylum in other parts of Pakistan. Wretched stories of these internally displaced persons (IDPs) and their trail of tears have made little news in the international media. Read more

Western Boycott of Race Conference

2009-04-20T07:31:00.001-05:00

A UN conference on racism has opened in Geneva amid controversy over a boycott by a number of Western countries prompted by fears that Iran's president would use an address there to launch a verbal attack on Israel.

Washington announced "with regret" on April 18 that it would boycott the Durban Review Conference, which already has seen much of the bickering and political infighting that marred the previous conference in South Africa in 2001.

The five-day gathering is the UN's first global racism conference in eight years.

UN Secretary-General Ban Ki-moon warned at its outset that racism is one of the most pressing issue facing humanity.

Read on

Firepower Logic of Piracy

2009-04-14T11:21:00.002-05:00

The firepower logic, most familiar to students of colonialism, exceptionalism, racism, and superpower piracy, is astounding.

Here is a multiple choice question:

(a) 3 Africans = 1 American
(b) 3 pirates = 1 captain
(c) 3 Blacks = 1 White

The willingness to kill has been the lingering logic of supremacy. Is killing necessary to prevent piracy?

Jurodynamics of Islamic Law

2009-04-10T15:42:00.001-05:00

Abrogation is a classical concept of Islamic law, which allows jurists to organize the normative complexity of divine texts. As a rule of temporality, abrogation invalidates prior rules found incompatible with subsequent rules. By stretching the rule, critics and reformers of Islamic law wish to abrogate substantial portions of the Quran and the Prophet's Sunnah. This methodology of modernizing Islamic law secures no following in the Muslim world, which jealously defends the integrity of divine texts. Jurodynamics of Islamic law offers a sophisticated methodology, which respects the integrity of divine texts, retains the jurisprudential heritage of past centuries, but at the same time modernizes legal systems to absorb modernity and constantly evolving spatiotemporal realities. No dynamic legal tradition cuts loose from the past or dwells exclusively in the past. Jurodynamics is the study of Shariah norms in motion, signifying both stability and change. Jurodynamics recognizes the Shariah as the Basic Code, which empowers Islamic states to construct dynamic bonds with classical jurisprudence (fiqh), positive law (qanun), and international law (siyar). Accusations that the Shariah is a barrier to modernity dissipate under the scrutiny of jurodynamics. Download the article

2009-03-21T05:48:00.001-05:00

Obama and the Second American Revolution

The world has reason to celebrate the Second American Revolution that began on November 4, 2008 when Barack Hussein Obama defeated John Sidney McCain in the US presidential election. Born in 1961, seven years after the Supreme Court's landmark decision on desegregation in Brown v. Board of Education of Topeka (1954), Obama leads this revolution, which offers racial coexistence to replace memories of slavery, segregation, discrimination, prejudice, and bigotry. Nations do not correct themselves easily. That America has turned on its own history and elected a man the likes of whom have been brutally lynched in our own lifetimes, speaks well for Americans, who overwhelmingly voted to erase a race-bound past. The First American Revolution (1776) sought independence from the British Empire, and established a constitutional democracy. The Second American Revolution (2008) seeks independence from an ideology of prejudice, which has brought sorrow to millions of people at home and abroad. The Obama Presidency can turn the course of history if it acts upon the following principles:

discard American Exceptionalism, a morally corrupt metaphysical theory of arrogance, invented to hide, defend, and perpetrate injustices at home and abroad. Let America be a nation among nations, equal and respectful, self-confident but not overpowering, righteous but not self-righteous.

discard the "war on terror," a war that has pitted America against the Muslim world. Invasions of Iraq and Afghanistan, attacks on Somali, Sudan, Syria, and Pakistan, threats against Iran, veiled hostility toward Saudi Arabia and other Muslim nations - all these and other policies must end. America must search for peace with the Muslim world, a world comprising of 57 states and more than a billion people. Peace will defeat terrorism.

recognize social, economic, and cultural rights. The First American Revolution promised civil and political rights, including the right to free speech, religion, association, and the right to vote. Let the Second American Revolution promise the right to health care, education, cultural diversity, and a decent standard of living for all. The United States must ratify the International Covenant on Social, Economic, and Cultural Rights.

recognize that America is a decent and humane nation. Its people have no cravings for aggression, extra-judicial killings, torture, secret prisons, military trials, and exporting "democracy" by means of bullets. Deploy American decency to construct a better nation, a better region, and a better world.

The old ruling elites will pressure Obama to reaffirm the dysfunctional ideology of national narcissism, cold-blooded economics, and an aggressive view of the world foolishly divided into Good and Evil. The Obama Presidency must resist the temptation to woo the forces that have been defeated in the general election and their ideology. Obama must not underestimate the promise of the Second American Revolution.

Sukuks: Islamic Debt Instruments

2009-02-21T07:22:00.002-06:00

Similar to conventional bonds, sukuks are Islamic debt instruments. Sukuks are also known as “trust certificates” or “participation securities.” Sukuks are part of an emerging Islamic financial market that, per Moody’s Investor Service estimates, will hit $4,000 bn. In the legal academy, sukuks are unfamiliar debt instruments. The purpose of this post is to explain the Islamic law behind sukuks. Read the entire piece with comments.

The Immutability of Divine Texts

2009-02-15T14:47:00.004-06:00

Divine texts are the common heritage of human beings. They cultivate human spirituality. Too much time is spent finding faults with divine text and too little attention is paid to understanding their unity of purpose. While doubters question the authenticity of divine texts and while factions set one divine text against the other, divine texts are munificent in establishing the truth. The Hebrew Bible warns that among nations gone astray from the path of God, “the prophet is considered a fool, the inspired man a maniac.”[1] The Qur’an affirms: “We have sent thee revelation, as We sent it to Noah and the Messengers after him: We sent revelation to Abraham, Ishmael, Isaac, Jacob and the Tribes, to Jesus, Job, Jonah, Aaron, and Solomon, and to David We gave the Psalms.”[2] The New Testament declares, “All scripture is God-breathed.”[3] The Buddhist Dhammapada proclaims, “Blessed is the devotion of those who dwell in unity.”[4] The Bhagavad Gita’s call to unity is no less vivid when Krishna proclaims the following words: “As men approach me, so I receive them. All paths, Arjuna, lead to me.”[5] Hindu, Buddhist, Hebrew, Christian, Muslim, and other divine texts originate from the same source, what the Qur’an calls ommu al kitab, the mother book.[6] All divine texts are revealed to guide the peoples of the world. No divine text can be confined to any one nation, language, time, or space. Divine texts constitute one universal series. Read the entire aricle
[1]. Hosea 9:7. All biblical quotes are from the New International Version.
[2]. Qur’an, sura an-Nisa 4:163.
[3]. 2 Timothy 3:16.
[4]. Dhammapada XIV:194.
[5]. Bhagavad Gita 4:11–12. The text is a conversation between Krishna, the divine speaker of the Gita, and Prince Arjuna, who is getting ready for an imminent war.
[6]. See Qur’an, sura ar-Rad 13:39.

The Essentialist Terrorist

2009-01-09T11:52:00.001-06:00

There is a coordianted effort on part of academics, scholars, think-tankers, journalists and others to create a profle of Muslim militants as essentialist terrorists who commit heartless violence because they are spiritually addicted to violence. These authors argue that no concrete grievances or violations of rights cause Muslim militancy. Free to trash the core beliefs of Islam and free to make fun of Islamic creeds, the Highly influential Terrorist Literature (HITLit) has successfully equated puritan Islam with terrorism. Most HITLit authors, known as terrorism experts, are research associates with influential think tanks such as RAND and the American Enterprise Institute, and some teach at Harvard University. Some have worked for the National Security Council and the U.S. Defense Department. These authors include Bernard Lewis, Bruce Hoffman, Steven Simon, Jessica Stern, Daniel Benjamin, and Richard Perle. They appear on National Public Radio and major radio and television networks to comment on terrorist events and disseminate their views to the general public. The HITLit themes of the essentialist terrorist are further disseminated through the views of collaborating journalists such as Thomas Friedman, Charles Krauthammer, David Brooks, and William Kristol. This Article argues that the HITLit theories splash distortions that lead to lawlessness.

Download the full article

Establishing a Tribunal for Mumbai Suspects

2008-12-30T20:26:00.002-06:00

Although a war between India and Pakistan is unlikely in the near future, both nations are exchanging muted threats of war veiled in the right of self-defense. Rumors abound that India is considering surgical strikes on terrorist hideouts in Pakistan to send a strong message to anti-India militants and to warn Pakistani intelligence agencies that India would no longer accept terrorist attacks on its soil.
India has also asked Pakistan to extradite the top leaders of Lashkar-i-Taiba and Jammat- ud- Da'wah, the militant organizations allegedly involved in the planning of Mumbai attacks. Both courses of action ----Read More

Scholarship an Act of Discovery

2008-12-20T13:00:00.007-06:00

All scholarship is an act of discovery. One may read, read, and read cases and statutes and legal literature to generate one's own piece of scholarship. But research, though necessary, does not produce durable scholarship. Lasting scholarship is like discovering penicillin. It is like capturing a fleeting revelation. It is an experience reported in language. True legal scholarship is researched poetry of the highest order. Rumi, Frost, Keats would have been great legal scholars. Legal schoalrship as an act of discovery is also compatible with Islamic law, that is, the law of the Quran and the Prophet's Sunnah. "Quran is the Scripture that We have revealed unto thee, full of blessing, that they may ponder its revelations, and that persons of understanding may reflect." This invitation to understanding through reflection is an act of dicovery.

(Click and download this article that might benefit new professors who are striving to make their scholarship float in the ocean of words.)

Speech Divesity under Islamic Law

2008-12-16T16:44:00.001-06:00

In order to further clarify the grammar of speech diversity, the Basic Code intimates that the diversity of nations and communities is also part of the divine plan. The Quran states: “O human beings! Lo! We have created you male and female and have made you nations and tribes that you may know one another (ta’aaraf).”This solidarity ordainment recognizes two distinct diversities, gender and communal, which are mentioned together in the same verse to demonstrate their analogous rooting in natural law. Gender identity furnishes self-knowledge whereas communal identity supplies familiarity with others. Each identity, such as sisterhood or brotherhood derived from gender and camaraderie derived from meta-gender community, is both natural and authentic. It is natural for women to congregate with women and men with men, for such congregations furnish gender-specific knowledge. However, men and women cannot be imprisoned in their respective genders. Men and women must meaningfully and respectfully unite in meta-gender communities to nurture social, cultural, artistic, and spiritual bonds.

An excerpt from a forthcoming article. Request a copy for review.

Mumbai and the Kashmir Tinderbox

2008-12-05T06:57:00.000-06:00

The Mumbai massacre is a heinous crime, allegedly carried out by Lashkar-e-Tiaba (Army of the Pure), a militant organization that is fighting for liberation of Indian-occupied Kashmir. Formed in the days when liberation movements enjoyed legitimacy under international law, Lashkar has been outlawed since 2002 as a terrorist organization in Pakistan, India, the United States, and several other countries. The post-9/11 war on terror has further weakened the liberation movement for Kashmir. Under pressure from the United States, Pakistan has withdrawn its moral and military support from militant groups that have been training for decades to liberate Kashmir. The Mumbai massacre is a sad reminder, however, that the unresolved Kashmir dispute is the tinderbox of South Asia.

Origin of the Kashmir Dispute

In 1947, British India was partitioned between Muslims and Hindus. The law of partition, however, did not settle the future of more than five hundred semi-independent princely states, including the state of Jammu and Kashmir. The law allowed each princely state to decide for itself. Due to their geographical compulsions, most states had no choice but to join India or Pakistan.

However, a dramatic anomaly bedeviled the accession of two princely states. The predominantly Hindu state of Junagadh was ruled by a Muslim prince who opted to join Pakistan. India sent its military forces to annex Junagadh, arguing that the people, and not the prince, must decide the question of accession. Ironically, the predominantly Muslim state of Jammu and Kashmir was ruled by a Hindu prince who opted to join India. India happily accepted the princely accession. A militarily weak Pakistan could not take Jammu and Kashmir by force. A militarily strong India, which relied on the peoples' choice to take Junagadh, has since refused to apply the same logic to settle the Kashmir dispute.

Internationalization of the Kashmir Dispute

Over the years, the United Nations Security Council has passed several resolutions in a bid to settle the Kashmir dispute. In 1948, the Security Council passed Resolution 47, which became the principal source for resolving the Kashmir dispute. The Resolution recognized “that the question of accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.” No such plebiscite was ever held, forcing India and Pakistan to engage in periodic wars. Rebuffing the Security Council Resolution, India gradually shifted away from its commitment to hold an internationally supervised plebiscite.

A frustrated Pakistan resorted to war in 1965 to settle the Kashmir dispute. India defeated Pakistan and through mediation of the Soviet Union forced Pakistan to sign the 1966 Tashkent Declaration, a treaty that effectively partitioned Jammu and Kashmir between India and Pakistan. In 1971, India played a key role in breaking up Pakistan. Instead of acquiring Jammu and Kashmir, Pakistan lost more than half of its population and territory to the new state of Bangladesh. Furthermore, India forced Pakistan to sign the Simla Agreement, a treaty under which the Kashmir dispute would be resolved through bilateral negotiations. Thus, India finally removed the Kashmir dispute from the international forum. After the Simla Agreement, the Security Council was no longer interested in resolving the Kashmir dispute. A dysfunctional bilateralism produced no settlement either.

During the Cold War, even though Pakistan sided with the United States in ousting the Soviet Union from Afghanistan, the United States showed little interest in resolving the Kashmir dispute. As the Cold War ended, the United States abandoned Pakistan and instead began to woo India as an economic and possibly a military partner against China. Pakistan, now completely on his own and nursing the wounds of betrayal, resorted to fomenting militancy in the Indian-held Kashmir. Pakistan’s option to keep the Kashmir dispute alive through state-sponsored militancy crashed to ground in the post 9/11 world in which all freedom fighters are now labeled as terrorists. Meanwhile, both India and Pakistan developed nuclear weapons, creating a dangerous stalemate in South Asia.

A Possible Solution for the Kashmir Dispute

In 1994, I published an article titled The Kashmir Dispute: A Plan for Regional Cooperation in the Columbia Journal of Transnational Law. After analyzing historical roots of the Kashmir dispute, I offered the following points for a possible settlement:

1. Except for the Valley of Kashmir, which has been a distinct province in the historical princely state of Jammu and Kashmir, India and Pakistan should lawfully partition the rest of the State. In fact, they already have. India controls Jammu while Pakistan controls Gilgit. Other parts of the state have also been partitioned. I suggest that the existing line of control be converted into an international border between India and Pakistan.

2. An internationally supervised plebiscite should be held in the Valley of Kashmir, which would allow its people to choose their own destiny, including the possibility of an independent state such as Switzerland. To preserve its neutrality, the Valley Kashmir may be legally disabled from entering into any military alliance with either India or Pakistan.

3. use and develop the existing institutional structure of the South Asian Association for Regional Cooperation (SAARC) to move toward an economic community. The partition of Jammu and Kashmir will lose many of its scars and burdens in the context of an open-borders South Asia, including Nepal and Bangladesh.

To reverse the process of periodic wars, I have even proposed that India and Pakistan sign a defense pact to avert external threats. South Asia needs a new stimulus framework, a bold psychological initiative, if it wants to solve its more mundane problems such as air pollution, dirty drinking water, load-shedding, and undignified poverty.

Al-Ghazali, Law Professor (1058-1111)

2008-11-26T20:40:00.000-06:00

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2008-11-25T11:31:00.000-06:00

If you have an idea, an opinion, or a scholarly comment on any aspect of Islamic law, please mail it to me at ali.abukashif@gmail.com. The Blog is read throughout the world and your ideas will be disseminated to an educated audience.

Obama and the Second American Revolution

2008-11-07T16:23:00.000-06:00

The world has reason to celebrate the Second American Revolution that began on November 4, 2008 when Barack Hussein Obama defeated John Sidney McCain in the US presidential election. Born in 1961, seven years after the Supreme Court's landmark decision on desegregation in Brown v. Board of Education of Topeka (1954), Obama leads this revolution, which offers racial coexistence to replace memories of slavery, segregation, discrimination, prejudice, and bigotry.

Nations do not correct themselves easily. That America has turned on its own history and elected a man the likes of whom have been brutally lynched in our own lifetimes, speaks well for Americans, who overwhelmingly voted to erase a race-bound past.

The First American Revolution (1776) sought independence from the British Empire, and established a constitutional democracy. The Second American Revolution (2008) seeks independence from an ideology of prejudice, which has brought sorrow to millions of people at home and abroad. The Obama Presidency can turn the course of history if it acts upon the following principles:

1. Discard American Exceptionalism, a morally corrupt metaphysical theory of arrogance, invented to hide, defend, and perpetrate injustices at home and abroad. Let America be a nation among nations, equal and respectful, self-confident but not overpowering, righteous but not self-righteous.

2. Discard the "war on terror," a war that has pitted America against the Muslim world. Invasions of Iraq and Afghanistan, attacks on Somali, Sudan, Syria, and Pakistan, threats against Iran, veiled hostility toward Saudi Arabia and other Muslim nations - all these and other policies must end. America must search for peace with the Muslim world, a world comprising of 57 states and more than a billion people. Peace will defeat terrorism.

3. Recognize social, economic, and cultural rights. The First American Revolution promised civil and political rights, including the right to free speech, religion, association, and the right to vote. Let the Second American Revolution promise the right to health care, education, cultural diversity, and a decent standard of living for all. The United States must ratify the International Covenant on Social, Economic, and Cultural Rights.

4. Recognize that America is a decent and humane nation. Its people have no cravings for aggression, extra-judicial killings, torture, secret prisons, military trials, and exporting "democracy" by means of bullets. Deploy American decency to construct a better nation, a better region, and a better world.

The old ruling elites will pressure Obama to reaffirm the dysfunctional ideology of national narcissism, cold-blooded economics, and an aggressive view of the world foolishly divided into Good and Evil. The Obama Presidency must resist the temptation to woo the forces that have been defeated in the general election and their ideology. Obama must not underestimate the promise of the Second American Revolution.

THIS IS NOT CREDIT CRISIS!

2008-10-20T04:16:00.000-05:00

Mansoor Durrani*

Past: When Mr Warren Buffet, the richest man in the world, called some financial instruments like the Derivates and Credit Default Swaps (CDS) ‘financial weapons of mass destruction’ over three years back, few of us took notice. The world economy was on the roll. European realty and financial markets were booming. US was ‘winning the war on terror’. And rest of the world was blindly aping this mirage called ‘American Dream’.

Some high level articles on alternate perspectives of the present crisis have recently been published. For a commoner to understand this mess, we need to go back to basics. Derivatives can be described as like putting a mirror in front of another mirror, allowing a physical object to be reflected into infinity. Australian Prime Minister Kevin Rudd has identified ‘comprehensive failure of extreme capitalism’ as a cause of this economic crisis. He attributed greed and fear as the ‘twin evils’ at the root of the financial sector collapse. Interest and speculation based capitalism has been around for a long time, but the seeds of this ‘extreme capitalism’ were sowed by the US when neo-cons made their debut in White House under Ronald Reagan. Their objective was to accelerate the theft of global resources at a much faster pace than they did over the previous seven decades.

This ‘richest nation’ in the world has ‘borrowed’ trillions of dollars from external and internal lenders to fund, among others, research and development of weapons of mass destruction and wars. The Republican Presidential candidate said he would be content to continue the war for 100 years. With what resources? The fact of the matter is that the US is bankrupt. David M. Walker, Comptroller General of the US and head of the Government Accountability Office, in his December 17, 2007, report to the US Congress on the financial statements of the US government noted that 'the federal government did not maintain effective internal control over financial reporting (including safeguarding assets) and compliance with significant laws and regulations as of September 30, 2007.'

The GAO report further pointed out that the accrued liabilities of the federal government 'totaled approximately $53 trillion as of September 30, 2007.' No funds have been set aside against this mind boggling liability. Why? Because there is no intention to repay! Just so the reader understands, $53 trillion is $53,000 billion. Frustrated by speaking to deaf ears, Walker recently resigned as head of the Government Accountability Office. Such a precarious state of US economy is reflected in dollar’s declining value against other currencies. As of March 17, 2008, one Swiss franc is worth more than $1 dollar. In 1970, the exchange rate was 4.2 Swiss francs to the dollar. In 1970, $1 purchased 360 Japanese yen. Today $1 dollar purchases less than 100 yen.

In 2007 alone US borrowed $739 billion – majority of it to completely destroy Iraq on the pretext of searching weapons of mass destruction which it never found and Afghanistan on the excuse of hunting one single individual who again it failed to find. It did succeed though in killing hundreds of thousands of their citizens. Other ‘rich’ crusaders that have joined this global bully in its ‘war against terror’ also borrowed heavily in 2007. For instance, Spain borrowed $146 billion, UK $136 billion Australia $56 billion and Italy $47 billion. America’s 2008 borrowing has already crossed one trillion dollar. Although these insane amounts are theoretically ‘borrowed’, lenders will not be able to recover their exposure from this ‘borrower’ for at least two reasons (a) the borrower is not honest as it has not built any reserve to repay and (b) for now, it is militarily too powerful. At least ‘third world’ lenders, except China, will find it hard to retrieve their ‘investments’.

Successive neo-con presidents aggressively ‘de-regulated’ financial markets and left them at the mercy of greedy speculators. Let us take the recent example of surge in oil prices which triggered worldwide inflation and made hundreds of million human beings poorer. US regulatory body Commodity Futures Trading Commission (CFTC) recently reported that financial firms speculating for their clients or for themselves account for about 81 percent of the oil contracts on New York Mercantile Exchange – the world’s biggest commodity exchange. Using swap dealers as middlemen, investment funds have poured into the commodity markets, raising their holdings to $600 billion this year from $13 billion in 2003. During that same period, the price of crude oil rose unabated every year. This reality throws Mr Bush’s argument to the wind that oil price rose due to China’s economic growth and food prices increased because Indians are eating more!

While these speculators called ‘bulls’ or ‘bears’ played havoc in equity and commodity markets by buying without money in their pocket (bulls) and selling what they did not posses (bears), their commercial and investment banking cousins began lending aggressively to buy cars, homes, clothes, TVs, refrigerators and even holidays to those who did not have means to repay. Because of their low ability (which later became no ability) to pay back debt, they were classified as ‘sub-prime’ customers and therefore were charged much higher interest rates. Even after making such reckless and greedy lending decisions, banks were not prepared to take any risk. So they insured these risky loans through CDS. Thus widening the scope of potential destruction and putting even insurers’ money at risk. With slight increase in interest rates, these sub-prime customers began defaulting. This led to large-scale defaults. Banks having big exposure to such customers panicked. They tried to sell collateralized properties to recover their money. But there were no takers. This turned out to be the final nail in the coffin of dangerous game that was being played under this ‘extreme capitalism’.

Present: The 2007 annual report of top British bank Barclay’s shows total customer loans - their core business - at Great Britain Pound (GBP) 345 billion. However, trade portfolio and derivatives together stood at GBP 541 billion. Such a high investment in speculative non-core business is bizarre and inexplicable. Greed and recklessness appear to be the only answer! At the most basic level, interest based financial instruments attract a fixed return on the original amount provided for business or consumption. The capital provider (banks and other financial institutions) under this system care less if the recipient is economically benefiting out of their money. Even if recipients incur losses, they are legally required to pay back more money than they took. Islam views this as gross injustice and even ‘an act of war against Allah and His prophet’. Therefore, the destruction of interest based system was predestined. And this is what is happening.

Plilip Stephens aptly illustrates in the Financial Times of 10th October this year, ‘for more than two centuries, the US and Europe have exercised an effortless economic, political and cultural hegemony. That era is ending.’ Big books and articles are being written on why and how this crises set in. Thousands of jobs are on the block. Depression and suicides are on the rise. Hundreds of billions of tax-payers dollars are being thrown in to save the developers and marketers of financial weapons of mass destruction. These steps by free market champions are leading us to believe that this system privatizes profits and socializes losses. This is in stark contrast to what these ‘rich’ proponents have been preaching to the ‘third world’.

Commentators predict that the sun will shine again. Sure it will; but never with the same brightness. And it shouldn’t. For extreme ‘brightness’ was making life difficult for billions of inhabitants on this planet. This capitalism has created two sections in our societies: super rich and super poor. In this system, a UK based Indian industrialist buys GBP 300 million (SAR 2.4 billion or Indian rupees 2,400 crore) house for his wife while more than 300 million Indians survive on less than half a Pound a day! Moreover, thousands of Asians, Africans and who knows even Americans and Europeans (as media owned by the same greedy business houses may not report) are starving to death. Economic disparity is not confined to industrialists alone. The gap in income inequality is also widening between top executives and the average employee, with the CEOs of the 15 largest companies in the United States, for example, earning 520 times more than the average worker in 2007, up from 360 times more in 2003. Therefore, I refuse to call it an economic or financial crisis. In my view, this is a catastrophe of human values.

Future: There is no ‘financial economy’ in Islam; only real economy. Islam does not permit debt to be traded, discounted or securitized. About Islamic banks, Chris Wright wrote in September 2008 Asiamoney ‘these institutions have come out of the sub-prime credit crunch crises in better shape than many of their conventional counterparts.’ Life is simple. We have made it tough by breaching our commitment with our Creator. When Qur’an declares ‘Allah destroys interest and increases charity’ in verse 276 of chapter 2, it essentially encourages Muslims with surplus capital to share both risk and reward with capital deficient entrepreneurs and businessmen; and at the same time support their ‘sub-prime’ brothers and sisters - both Muslims and non-Muslims - to lead a humane life. Former (business objectives) must be attained through equity based investments like various structures of private equity, venture capital, leasing etc. and later (social objectives) must be achieved by institutionalizing zakah (obligatory annual charity) and encouraging even additional charity. This was the practice of Prophet Muhammad (peace and blessings of Allah be upon him).

Similarly, Islam does not permit its followers to sell something that they do not possess. This is speculation. And enormously risky. Future is unpredictable. We never know we will surely possess what we are selling in advance! Over the last several years, I have expressed deep concern about the availability of even ‘Islamic equity funds’. I do not challenge the concept of equity. It is perfectly Islamic if invested in permitted sectors and I am a strong supporter of this method of investment. My concern is excessive volatility experienced by equity markets. This volatility is not accidental. It is well planned and executed by bulls or bears. Their heavy buying (without money) and heavy selling (without possession of stocks) puts even Islamic equity funds at great risk. For this reason, on top of whether stock itself is shari’ah-compliant, we need to think whether current rules of stock trading in global capital markets are shari’ah-compliant. Trust me, they are not!

There are no bull and bears in Islamic financial architecture. We have only investors, preferably medium to long term. This is aimed at providing financial and economic stability which results in political and social calm. Obviously neo-cons were not saints. They wanted to capture all the global wealth, if possible without wars. At the same time they wanted to destroy social and political systems of those societies (whom they viewed as mere markets) that did not agree with their values.

I see silver lining – for only those who have no greed and fear – in this catastrophe. Qur’an expects its followers to be free of these two characteristics. Financial system based on justice and fairness (free of interest and speculation) will survive now and thrive in future. After receiving an international award in 2002 from Sheikh Muhammad – current Prime Minister of UAE – I requested Islamic bankers and scholars not to pursue unabated ‘innovation’ and ‘sophistication’ in aping conventional institutions. Taking a dig at ‘Islamic credit cards’ and ‘Islamic hedge funds’, I had said that the day may not be too far when we will see ‘Islamic casinos’ and ‘Islamic pubs’. I would once again like to warn Islamic bankers and scholars who crave for ‘innovation’ and ‘sophistication’ in Islamic finance. While not harmful per se, the present crisis teaches us to avoid uncalled-for ‘innovation’ or ‘sophistication’.

The color of money is same. So is its function. And value. Whether money comes in the form of equity, debt, preferred stock, leasing, commercial paper or bond, it serves the same purpose. In other words, 100 dollars of equity will buy the same amount of plant, machinery or land as 100 dollars of commercial paper or complex bonds. In terms of economic value-addition, it will make little difference. Therefore, I always believe in simple structures which are understandable by all. Or at least many. This, together with selfless and fearless life, will help us avert similar crises in future, insha’Allah.

*Head of Project Finance at Saudi Arabia’s largest bank – The National Commercial Bank. Views expressed are his own.

Islamic Perspective on Meltdown in American Markets

2008-09-27T12:45:00.000-05:00

Call it the consequences of irresponsible American invasions, call it the irrational exuberance of short sellers, call it the catastrophe of subprime lending, call it the mismanagement of leveraged products, blame it as you may, American markets are facing unprecedented meltdown and doomsayers see little promise in the federal bailout package. Ironically, the Wall Street has noticed that Shariah-compliant investments--which avoid speculative risk and debt-ridden greed--have fared much better in these troubled markets. In the past few years, Shariah-compliant investments in Western markets have grown to more than half a trillion dollars.
Islamic financing is attracting huge academic curiosity. Many experts participating in the 8th Harvard University Forum on Islamic Finance held this past April wondered if Islamic financing could have prevented the meltdown that American markets are facing primarily due to mortgage debt and mortgage-backed securities—now known as "toxic investments." This legal commentary highlights the two fundamental principles of Islamic financing that I presented at the Forum.

High Risk Investments

The Quran prohibits al-Maysir or speculative risk, warning the faithful to avoid games of chance in which the probability of loss in is much higher than the probability of gain (2:219). Shariah-compliant investments, therefore, avoid speculative risk, including interest rate options, naked equity options, futures, derivative and numerous leveraged products purportedly designed to hedge investments. Many of these financial products attract speculators in hopes of making quick money. When trusted fund managers, under institutional pressures to show profit, resort to speculative risk, hedge investments turn into suicidal strategies for financial destruction.

In pursuit of greed and thrill, straightforward investments in companies engaged in socially useful activity has become unattractive, even boring, because of their presumably lower rate of return—frequently a self-fulfilling prophecy. Billions of dollars are dumped into companies that promise huge profits but produce nothing. While Islam would allow risking investments in socially beneficial research projects, it prohibits investments in companies peddling alcohol, tobacco, pornography, debt, and weapons—products that undermine our health and safety.

Some investment strategies rampant in the markets are not only morally corrupt but socially harmful. Short sellers, for example, make money when companies collapse and close. Turning the conventional logic of investment on its head, short sellers wish companies to crash rather than prosper for they make most money when companies go bankrupt, workers and employees lose jobs, and pension funds evaporate through declining company stock. Such cynical investments, touted as useful forces that balance the market, are contrary to Islamic law.

Interest-Bearing Debt

In addition to prohibiting high risk investments, the Quran also prohibits no risk investments. The prohibition against riba, interest on loans, is absolute; it is strictly proscribed. Islam does not prohibit passive investments. Nor does it prohibit giving interest-free loans. Debt is not contrary to Islamic law. Charging interest is. Some experts argue that usury, and not interest, is prohibited under Islamic law. Most Muslim scholars agree, however, that interest on loans is contrary to the Shariah.

Refuting arguments that money has time value or that interest is analogous to profit, the Quran offers a categorical principle that “trade is permitted but interest is not.” (2:275). The prohibition against interest was revealed not only to save the poor from unscrupulous lenders but also to deter investors who demand a set return on their investments and decline to take the risk of engaging in useful trade.

Contrary to Islamic principles, lending in general and subprime lending in particular was predestined to harm American financial markets for two distinct reasons. First, debt braced with high interest was being extended to persons who simply could not afford to pay back loans. This was usury. Second, the real estate mortgage was no longer a prudent investment decision, since numerous investors were trading in real estate with inflated prices. Investment bankers and other geniuses on Wall Street were securitizing mortgage debts, turning them into interest-bearing securities. These fancy securities began to fail when their underlying assets were foreclosed or deflated. The debt turned deadly and its holders bankrupt.

Shared Destruction

Between the prohibited limits of maysir (speculative risk) and riba (no risk), however, Islamic Law permits creativity in financial markets where investors mobilize surplus monies for the production and distribution of halal (Kosher) goods and services. These permissible markets are neither risk-free nor prone to irresponsible risk. Though innovative and authentic, the markets are infused with the values of fairness, transparency, and reasonable profits. They are free of predatory practices that corrupt transactions with greed and inflict hardship on the poor, the elderly, and the novice.

The federal bailout package that the Bush Administration is selling as a quick cure of all problems will only aggravate the underlying cancer of interest-bearing debt. It is unlikely that the infusion of more money will reform institutions and companies built on layers of interest-bearing debt. When the best and the brightest are engrossed in finding ways to make money with money, and no more, the system may look creative and intelligent but it is geared toward shared destruction.

Pakistan's Flawed Presidency

2008-08-28T19:13:00.000-05:00

Pakistan has been unsuccessful in designing a stable presidency. Two competing models vie for approval. Pakistan's formulaic constitution, borrowed from the legal-political traditions of England and India, establishes a ceremonial presidency subordinated to parliament. The president with few powers is the head of state and represents the unity of the Republic. The ceremonial presidency empowers elected assemblies to run affairs of the state and provinces in accordance with the wishes of the people. It also spawns political cronyism, allowing politicians to freely broker power relations, distribute ministries and governmental offices on the basis of connection rather than competence and, for the worse, use state resources to advance personal and family interests.

The competing model, which Pakistan's generals as well as American policymakers prefer, institutes a strong presidency - a praetorian presidency - that listens to the armed forces and kow-tows to American interests. Under the praetorian model, the President exercises formidable powers, appoints heads of the armed forces, and can dissolve dysfunctional or discordant elected assemblies. Even the judiciary is made subservient to the President. The praetorian presidency empowers what Pakistanis call the establishment—a congregation of bureaucrats, army generals, advisers, and experts. The praetorian presidency focuses on economy and foreign relations. But it alienates political forces and weakens elected assemblies. Consequently, corruption permeates the state machinery with little or no accountability.

The nomination of Asif Zardari, the widower of assassinated former Prime Minister Benazir Bhutto, to contest the presidential election is a disturbing development. If elected, President Zardari would further muddle the models of presidency. Zardari might not use the iron hand of praetorian presidency, as did General Pervez Musharraf, to please the establishment and foreign masters. Under no circumstance, however, will Zardari be the ceremonial president.

Read More

Musharraf's Impeachment and Global Criminality

2008-08-11T12:03:00.000-05:00

Pakistan's ruling coalition has finally gathered the courage to impeach Pervez Musharraf who assumed and retained power as the Army Chief for over eight years in violation of the constitution. Musharraf's hold on power collapsed when he took off his military uniform and his political cronies lost the 2008 general elections. Like previous military generals, Musharraf too had a profound messianic complex to single-handedly save Pakistan from real and imagined enemies. Despite its great human and natural resources, Pakistan has remained a Third World country, partly because its civil and military leaders are narcissistic to the extent that they see law as a barrier to their self-assessed greatness to run complex affairs of the state.

Musharraf will be fighting impeachment because he fears that his criminality would possibly take him to the gallows. In addition to subverting the constitution more than once, Musharraf has engaged in a series of serious crimes that no decent nation would forget or forgive. As an unaccountable army man, Musharraf imprisoned senior members of the judiciary and denied them salaries and basic necessities of life. This profound disrespect for law also contributed to the disappearance of hundreds of Pakistani citizens. In collusion with foreign intelligence agencies, Musharraf's men abducted men, women, and children and kept them incommunicado for years. Many were tortured. The "war on terror" mantra was so loud that nobody was willing to hear cries of the innocent and the vulnerable.

The so-called war on terror unleashed an era of global criminality, in which many rulers became as lawless as were the terrorists. In this era, Pervez Musharraf stands shoulder to shoulder with other world-class criminals who resorted to blatant lawlessness and used the massive machinery of the state to detain, torture, and kill the innocent along with the guilty. Musharraf's impeachment and the exposure of his criminality would be the essential first step to begin a process of accountability in nations small and large.

ICC and Sudan: Justice or Double Standards

2008-08-01T17:38:00.000-05:00

Watch a televised debate on Iranian TV about whether the ICC is doing justice or playing politics in prosecuting Sudanese President Omar-Hassan al-Bashir.

International Criminal Court (ICC) joins the Crusade

2008-07-11T15:37:00.000-05:00

The International Criminal Court (ICC) joins the crusade to defame Islam, demonize internal conflicts in Muslim nations, and prosecute Muslim leaders for crimes against humanity, rape, genocide, and other international crimes. The Prosecutor, Luis Moreno-Ocampo, holds evidence "on crimes committed in the whole of Darfur over the last five years." Ocampo will be seeking the arrest of Sudanese President Omar al-Bashir for war crimes committed in Darfur.

The ICC is a good idea. We need a world court to hold international criminals accountable. No leader should be able to get away with heinous international crimes. The weakening of personal sovereign immunity is also a welcome legal development in that no leader, army general, senator, representative, or even judge is immune from criminal liability if he or she commits crimes or provides material assistance in the commission of crimes.

In practice, however, the ICC is a Western instrumentality that ignores the grave crimes of Western leaders and generals. The ICC has so far shown no interest in prosecuting President Bush, Vice President Cheney, Defense Secretary Rumsfeld, and State Secretary Colin Powell for the crimes they planned, organized, incited, and committed with the help of lethal weapons in Afghanistan and Iraq. These leaders have destroyed Iraq, a Muslim country, and killed its leader, Saddam Hussein, without a fair trial. The NATO genocide in Afghanistan continues as world leaders sit in high galleries to watch the ghoulish killings of the “Taliban and terrorists.”

Ocampo is an incompetent, unethical, and perhaps a racist prosecutor who does not deserve to lead the Prosecutorial office of the ICC. He has already botched up the prosecution of a Congolese warlord, Thomas Lubanga, by wrongly withholding evidence that could have helped the defense.

The prosecution of President Omar for the Darfur conflict comes after years of distortions and misreporting in the Western media. The Western media singles out Muslim leaders and Muslim nations for explaining the ills of the world. Syria is listed as a terrorist state, Pakistan is blamed for trouble in Afghanistan, the Iranian President has been turned into an imminent murderer, and President Omar is soon to be prosecuted as a war criminal. Militias that resist Western occupation in their own countries are labeled as terrorists and jihadis.

While hardened criminals sit out in shameless liberty, the politically-inspired prosecution of President Omar is, at its best, selective enforcement of international criminal law; and, at its worst, it is one more crusade against the Muslim world.

Obama Strategy for Muslims

2008-06-30T11:16:00.000-05:00

Obama campaign strategy toward Muslims is shortsighted

June 27, 2008

By Junaid M. Afeef

Many Muslim voters love Sen. Barack Obama. It seems Obama does not have quite as much affection for his Muslim supporters.

Muslim voters support Obama for many reasons, but a shared faith is not one of them. Muslim voters know Obama is Christian. That does not matter.

What does matters to many Muslim voters are his life experiences, his worldview and his position on a myriad of domestic issues.
When Muslim voters look at Obama, they see a leader who will restore civil liberties. In him they see a president who values diplomacy, and as one young Muslim professional commented on a listserv, they see someone who will bring an "informed international perspective."

Muslim voters look at Obama and they hope that, as a person of color who has experienced racism in his life, he will be sensitive to bigotry and bias in all of its manifestations, including racism, anti-semitism and Islamophobia. Regrettably, Obama is failing when it comes to addressing Islamophobia.

The false claim that Obama is a Muslim is a perfect example of Islamophobia. The rumor's intended effect is to sow seeds of mistrust and doubt about allegiance to America and to cast aspersion on his character. The rumor is effective only if one conflates being Muslim with being disloyal and to having bad character.

How has Obama dealt with these rumors? Most Muslims feel he has done a poor job thus far.
Instead of focusing on his Christian faith, Obama has made it a point to say he is not a Muslim. Furthermore, the Obama campaign's new Web site, "Fight the Smears," considers it a "smear" to be called a Muslim.

Earlier this year, the Obama campaign reportedly distanced itself from Minnesota Congressman Keith Ellison, the country's first Muslim member of the U.S. House. Last week, the campaign in Michigan would not allow two Muslim women to be seated near Obama because they were wearing head scarves.

Obama has visited churches and synagogues during the campaign, but there have been no appearances at any mosques across the country. The explanation from his campaign is they are making an interfaith outreach without focusing on any particular faith community. That explanation is very hard to swallow.

The Obama campaign strategy toward Muslims is shortsighted. It lacks foresight, and it lacks leadership. The anti-Muslim sentiments are just the tip of the iceberg in terms of the challenges Obama will face during his campaign and as president, if he should win.

Obama can do better. He embraced his multiracial heritage with aplomb. He needs to embrace his multireligious heritage with the same confidence. Doing so would set the record straight about his Christian faith and allow him to maintain the moral high ground in the face of bigotry.

Obama tackled racism so eloquently this past March in his Philadelphia speech entitled "A More Perfect Union." He struck a cord with Americans of all religions and races when he said, "We may not look the same, and we may not have come from the same place, but we all want to move in the same direction - toward a better future for our children and our grandchildren." That sentiment rings true among Muslims.

Obama must marshal his eloquence against the anti-Muslim bigotry that is festering in the campaign. He needs to see the value of taking a moral stand against bigotry.

Only Obama has the power to elevate principle over crass political calculation.
America needs more than just good policy ideas. The next American president must have vision and leadership as well. This is Obama's opportunity to show the nation, by words and deeds, that he has it all.

Junaid M. Afeef is director of public and government affairs for Council of Islamic Organizations of Greater Chicago. He can be contacted at Junaid@ciogc.org.

Enforcement of Islamic Contracts in the United States

2008-06-29T20:37:00.000-05:00

Islamic Agreements in American Courts: An interesting dispute litigated in a Texas appellate court (partial dissent here) having to do with "a Mahr[, which] is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce." Some of the most interesting arguments -- "those regarding the Establishment Clause, public policy, and Islamic law" -- were found to be waived, and the decision rested on fairly technical questions. Still, it might give one a sense of the kinds of cases that are likely being litigated elsewhere, and are likely to be litigated in the future.

As I mentioned before, I think the right approach for the American legal system is to simply enforce these contracts as written, without regard to their religious character. Some such contracts might be unenforceable because they are supposedly substantively or procedurally "unconscionable" (a pretty hard standard to meet), or because they are somehow restrained by state family law, or because one of the parties can show duress under standard secular legal rules (again, a pretty hard standard to meet in the absence of express threats of illegal conduct). But generally speaking they should be enforceable, just as contracts are generally enforceable even when we think one party has less "bargaining power" (an ill-defined concept) than the other. We shouldn't nanny-state Muslims any more or any less than we nanny-state the Amish or evangelical Christians or Orthodox Jews or the secular.

I'd reject therefore any Establishment Clause challenges to the contracts, unless they by their terms call for theological judgment -- in which case the better solution would be for the contracts to expressly call for arbitration by tribunals that can make such theological judgments, and then for secular courts to generally enforce any arbitral property settlements or monetary awards. The one complicated question is what should be done if the contracts call for enforcement by arbitral tribunals that apply sex-, race-, or religion-discriminatory rules. It's possible that under the secular law having to do with enforcement of arbitration agreements, such discriminatory arbitration might be against public policy and thus the results of it might be unenforceable; I don't know what the rule ought to be. But again the basic principle should be to apply to Muslim contracting parties precisely the same rules that we apply to anyone else.

[Eugene Volokh, June 27, 2008 at 8:46am]

Pakistan's Constitutional Subversions

2008-06-04T07:39:00.000-05:00

On February 18, 2007, the people of Pakistan elected two major anti-establishment political parties, giving them a mandate to restore high court judges whom Army Chief Prevez Musharraf had dismissed, and to re-establish the rule of law. The political parties that had supported the non-democratic establishment were defeated in the February general elections. Despite this triumph of democracy over dictatorship, Pakistans constitutionalism remains confused. Confusion has particularly gripped the dominant political party (PPP) that benefitted from the military rule to the extent that all criminal cases against the party chief, Asif Ali Zardari, were quashed. This manumission of the PPP Chief from criminal action created sympathies for the current Supreme Court, which validated constitutional subversion and the consequent removal of high court judges, including Chief Justice Iftikhar Chaudhry. This article argues that the rule of law cannot be established in Pakistan unless the ruling elites refrain from subverting the constitution for short-term benefits. Read More

War Criminal Speaks at Yale

2008-06-03T07:53:00.000-05:00

It is puzzling that Yale University invited Tony Blair, the war criminal, to speak at the graduation ceremony. Along with others, this man is the author of the unjustified and genocidal war in Iraq. Called the Bush poodle, war criminal Blair walks freely as a hero.

Shame on Yale!

Pakistan's Futile Constitutional Amendment

2008-05-22T18:24:00.001-05:00

The 18th Hole:
Pakistan's Futile Constitutional Amendment

The Pakistan People's Party (PPP) will soon propose to the Parliament the 18th amendment to the 1973 Constitution. The proposed amendment would reportedly abolish Article 58 (2)(b) of the Constitution, which empowers the President, in his sole discretion, to dissolve the National Assembly. The amendment would also strengthen Article 6 of the Constitution to punish judges who would in future support military coups and constitutional subversions.

This essay argues that the proposed 18th amendment is an exercise in futility. Unfortunately, no constitutional amendment will prevent future military adventurism unless the political and military leadership is committed to honor the Constitution. As discussed below, however, the culture of the ruling elites has no respect for the rule of law. Read More

Pakistan's Constitutional Shenanigans

2008-05-07T10:38:00.000-05:00

The Establishment is a quasi-pejorative label to describe the combined forces of Pakistan Army generals, intelligence chiefs, and top bureaucrats. In reality, the Establishment is a group of powerful government officials who pool their resources to checkmate policies and persons that cross their path or wish to weaken their grip on power. Founded on vertical hierarchy, the Establishment effectively demands that human resources in the armed forces, intelligence agencies, and bureaucracy take an oath "to discharge their duties, and perform their functions, to the best of their ability, faithfully and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Establishment." Read more

Pakistan must restore sacked judges without delay

2008-04-28T14:29:00.001-05:00

"Pakistan’s ruling Coalition has less than forty-eight hours left to fulfill their pre-election promise with the nation to restore the high court judges that General Musharraf fired by means of the 2007 Emergency Proclamation last November, an action contrary to the Constitution. The country's lawyers are likely to protest hard and refuse to cooperate with the new government if the Coalition fails to deliver the promise.

The Pakistan Peoples Party, the chief party of the Coalition, appears to be uncertain about the modalities of restoration even though it had previously agreed that the judges would be restored through a Parliamentary resolution followed by an executive order. Since the sacking of the judges was unconstitutional per se, the cumbersome constitutional procedures were deemed unnecessary for the restoration.

More pressing problems await the Coalition. The shortage of food items and electricity frustrates the common people on a daily basis. The court system is less than fully functional. The economy is sliding into non-performance. The national debt is high. Pervez Musharraf refuses to step down. The Attorney General who engineered the undermining of the Constitution is still in office. The Prime Minister should have fired the Attorney General right away, for his continued occupation of the highest law office is an affront to the supremacy of the Constitution. The Coalition must move fast on the primary logistics of cleaning the constitutional mess. If the Coalition fails to handle the relatively easier issue of the restoration of judges, it is unlikely to stand the pressures of solving the more serious problems."

The Immutability of Divine Texts

2008-04-22T07:05:00.002-05:00

Divine texts are the common heritage of human beings. They cultivate human spirituality. Too much time is spent finding faults with divine text and too little attention is paid to understanding their unity of purpose. While doubters question the authenticity of divine texts and while factions set one divine text against the other, divine texts are munificent in establishing the truth. The Hebrew Bible warns that among nations gone astray from the path of God, “the prophet is considered a fool, the inspired man a maniac.” The Qur’an affirms: “We have sent thee revelation, as We sent it to Noah and the Messengers after him: We sent revelation to Abraham, Ishmael, Isaac, Jacob and the Tribes, to Jesus, Job, Jonah, Aaron, and Solomon, and to David We gave the Psalms.” The New Testament declares, “All scripture is God-breathed.” The Buddhist Dhammapada proclaims, “Blessed is the devotion of those who dwell in unity.” The Bhagavad Gita’s call to unity is no less vivid when Krishna proclaims the following words: “As men approach me, so I receive them. All paths, Arjuna, lead to me.” Hindu, Buddhist, Hebrew, Christian, Muslim, and other divine texts originate from the same source, what the Qur’an calls ommu al kitab, the mother book. All divine texts are revealed to guide the peoples of the world. No divine text can be confined to any one nation, language, time, or space. Divine texts constitute one universal series.

Divine texts are universal and timeless. They continue to guide communities and generations across the globe, as they have for centuries. Revealed in diverse cultures, languages, and legal traditions, divine texts share common themes to preserve human spirituality. No concept of prosperity, social advancement, or human rights will weaken the eternal influence of divine texts. Normative deviations from divine texts are transient. Spiritual needs that divine texts fulfill are permanent. The immutability of divine texts does not reside in interpretative gloss or exegetical methodologies. It does not dwell even in the sacred languages in which divine texts are revealed. Nor do divine texts establish exclusive relationship with any one nation, ethnic community, or generation of believers, even if the believers may assert such a relationship. Transcending interpretations and languages, and repudiating claims of sole proprietorship, divine texts tender themselves as the common heritage of all the peoples of the world. Read the article

Film Fitna: An Incitement to Hatred against Muslims

2008-03-29T14:22:00.002-05:00

The film "Fitna" is an assault on the religion of Islam. It wounds deeply-held spiritual feelings of millions of Muslims around the world. It is a call for hatred and discrimination aginst Muslims in the Netherlands and elsewhere in Europe. Made by a race-supremacist Dutch parliamentarian, the film argues that the Quran incites violence.

The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and other UN experts, have condemned the film in the following words: "While on the one hand, freedom of expression is a fundamental human right that must be respected, it does not extend to include incitement to racial or religious hatred which is itself clearly a violation of human rights. Public expressions that paint adherents of a particular religion as a threat to peace or global stability are irresponsible."

The European Union (EU), however, has drawn an opposite conclusion from that of the UN experts. While condemning the film as an unjustified attack on Islam, the 27 EU foreign ministers support the freedom of speech that the Dutch parliamentarian exercised in making the film.

Muslims are outraged. They too have the right to free speech in peacefully condemning the film and its hateful producer. They must, however, refrain from any over-reaction. The European history of attacking Islam is old. Centuries before the Europeans embraced the notion of freedom of speech, vicious attacks on the Quran, Prophet Muhammad, and Muslims have been encouraged, tolerated, and disseminated. I document the European hatred against Islam in an article Free Markets of Islamic Jurisprudence.

Muslims must ignore the film, read the Quran, and always remember what the Quran advises them to say on such insulting occasions: "To you be your Way, and to me my Way." Sura al kaafiruun 109:6. Insulting religions is a European problem and they will have to deal with it.

No Pardon for Musharraf

2008-03-16T19:20:00.002-05:00

Pakistan's newly-elected Parliament meets on Monday, March 17, to form a new government. Monday is "democracy day" ending the eight years of military rule. Former Army Chief Pervez Musharraf, however, refuses to step down and claims to be the nation's lawful President. Close to a two-thirds majority of the Parliament and an overwhelming majority of lawyers of Pakistan see Musharraf as a usurper. Facing a hostile Parliament and an uncompromising Bar, Musharraf would offer to make a deal. He would relinquish power if he could safely leave the country (and perhaps fly away to the United States).

This essay argues that Pakistan's Parliament must not pardon Musharraf, openly or secretly. The people of Pakistan want their day in court.

Read More

Saying No to the "War on Terror"--A Challenge for the New Government in Pakistan

2008-02-20T08:43:00.002-06:00

If the winning parties in Pakistan will fight the American war on terror, they will be welcome as moderate parties. If the new government will say no to "the war on terror" and make an effort to bring peace to the nation, it will come under economic and military pressure to change.

Unfortunately, some (not all) US policymakers prefer that Muslim governments fight and kill "extremists and radicals." This is a recipe for internal strife and civil war. Pakistan needs to wake up, as must all Muslim nations, to say NO to the genocidal "war on terror."

Consultation, negotiation, conciliation, and arbitration are the Islamic methods of dispute resolution. These are also the methods of international law.

These methods are mandatory when disputes are among Muslims. Hopefully, the winning political parties in Pakistan will use these methods to resolve internal disputes. Read More

NATO Genocide in Afghanistan

2008-01-29T21:49:00.000-06:00

Sloganeers, propagandists and politicians often use the word "genocide" in ways that the law does not permit. But rarely is the crime of genocide invoked when Western militaries murder Muslim groups. This essay argues that the internationally recognized crime of genocide applies to the intentional killings that NATO troops commit on a weekly basis in the poor villages and mute mountains of Afghanistan to destroy the Taliban, a puritanical Islamic group. NATO combat troops bombard and kill people in Taliban enclaves and meeting places. They also murder defenseless Afghan civilians. The dehumanized label of "Taliban" is used to cloak the nameless victims of NATO operations. Some political opposition to this practice is building in NATO countries, such as Canada, where calls are heard to withdraw troops from Afghanistan or divert them to non-combat tasks.

Read the complete essay

The Kite Runner: The Movie with a Purpose

2008-01-21T19:05:00.000-06:00

The Hollywood has turned the novel, The Kite Runner, written by an Afghan-American into a movie. The picturesque movie, more than the prosaic novel, strives hard to sow the seeds of ethnic hatred, sectarian hostility, and possibly violence between diverse national groups of Afghanistan. According to the story, the Sunni bully rapes the Shia boy. The Sunni rapist belongs to the dominant ethnic group, called Pushtuns. The sodomized boy is the member of a minority ethnic group, known as Hazarajat. When the Taliban come to power, the Sunni rapist joins the puritanical movement and becomes a state official---but continues to rape boys. To perhaps make the story attractive to Hollywood filmmakers, the Sunni rapist bully---blond and blue-eyed---is shown to be the son of Afghan father and German mother—a crude suggestion that when Muslims marry Germans, demons are born.

The movie is presumably hate speech, allowed under the First Amendment of the United States Constitution. It is unclear whether the movie would be a violation of Article 20 of the International Covenant on Civil and Political Rights, which prohibits "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." The government of Afghanistan has banned the movie. See Combating Defamation of Religions

Introducing Ahmadinejad: Bollinger and abusive advocacy

2008-01-09T09:07:00.000-06:00

Tuesday, September 25, 2007

Ali Khan [Washburn University School of Law]: Lee C. Bollinger is what you may call crème de la crème. His credentials as a law professor, a legal scholar of the First Amendment, the former dean of the University of Michigan Law School, and now the President of Columbia University have been incredible. With these many feathers in his cap, one would bet Bollinger has mastered the art of dignified advocacy. His indecorous manners in challenging the Iranian President at his Monday appearance at Columbia, however, caught many by surprise.

Ignoring the calls that Ahmadinejad, whose views on the holocaust are hurtful, should not be invited to a prestigious American university, Bollinger invoked the First Amendment to defend the invitation. But once the Iranian President was captive on campus at Columbia, Bollinger turned on the guest. With well-prepared ill-will and rehearsed abusive language, Bollinger squirted a barrage of curses, calling the Iranian President "a petty and cruel dictator… a dishonorable man...stunningly uneducated … fanatical…ridiculous, and more."

I wonder if Bollinger ever learned in the law school that curses do not make effective arguments. Imagine Bollinger with his abusive rhetoric in a court of law addressing a highly sophisticated jury. Imagine Bollinger with his abusive tongue combating with the opposing counsel in a hotly contested case. Imagine Bollinger with his abusive words unleashing the Socratic dialogue on a student whose views Bollinger considers are extreme.

Judges repeatedly complain that too many lawyers fall for bad manners in advocating cases. Most bad manners are bad speech manners, including inappropriate and insulting words. The New York Lawyer's Code of Professional Responsibility demands that a lawyer be temperate and dignified. Bollinger had the ability to be a much more effective advocate of the legitimate points he was making. Courteous language carries tremendous power to disarm a foe, including a professor from Tehran. The disagreeable language allowed under the First Amendment is not critical for effective advocacy or a meaningful dialogue. It now appears that the First Amendment Bollinger was invoking to defend the invitation was indeed for his own speech. See Advocacy under Islam and Common Law

Perfidy of Pakistani Rulers

2007-12-31T11:51:00.000-06:00

By Ali Khan

The Bhutto assassination might force Pakistani rulers to reconsider supporting the war on terror that has been forced upon the entire Muslim world. Just as Spain withdrew from the war in Iraq after the Madrid terrorist bombings, Pakistan too might use Bhutto's death to withdraw from the war in Afghanistan. For sure, Pakistan is no Spain. It will be much harder for corrupt Pakistani rulers to say no to billions of dollars coming from America. If Islamabad does not change its devious ways, however, the war on terror will consume and destroy Pakistan.

Subservience and Subversion

Since its birth in 1947, Pakistan has been a subservient but subversive ally of the United States. Lacking resources and strong political institutions, Pakistani rulers have played the role of makkar noker (cunning servant) who takes pleasure in servitude but nonetheless resents and subverts the wellbeing of the master. That duplicitous Pakistani officials can outsmart naïve American policymakers has been the defining attribute of Islamabad's furtive foreign policy. This policy may have brought fame and fortune to some military and political individuals, but it has been a proven disaster for the people of Pakistan.

In countering the 1979 Soviet invasion of Afghanistan, for example, General Zia was overly eager to support the American-sponsored jihad. But Zia strived hard to deceive American officials into believing that Pakistan was nowhere near building the nuclear bomb. President Bush Sr. still resents that Zia lied to him straight face. Inspired by Zia's victorious hypocrisy, General Musharraf too has played the makkar noker to get huge amounts of money from the United States to fight real and imagined terrorists. The reports are now surfacing that crafty accountants inflated the cost of fuel and ammunition to increase the amount of aid. Furthermore, the aid has been diverted into buying weapons to fight India—an incorrigible obsession of Pakistani rulers.

As a broader principle, though, Pakistani rulers believe that hypocrisy is diplomacy and that duplicity is the sure way to conduct foreign policy in a treacherous world. This crude principle has led to lawlessness at home and deceit in foreign affairs. It has also sunk Pakistan into regional isolation and moral darkness. Furthermore, the makkar noker policy frustrates both friends and masters (Americans) who might have better understood the needs of Pakistan if Islamabad were pursuing a hardnosed but honest foreign policy.

Double-Dealing

The September 11 attacks provided the perfect occasion for the United States to issue “with them or with us” threats to Pakistan that had given birth to the Taliban phenomenon in hopes of fomenting terrorism against India. Musharraf, who at the time was consolidating his illegitimate military coup in Pakistan, had no option but to turn over Pakistan's terrorism policy. In deposing the Taliban but without abandoning them, Pakistani generals saw the opening of a grand opportunity that would bring money, military hardware, hobnobbing with Washington D.C., and influence peddling.

Pakistan's September 11 summersault, however, has been nothing but deceitful. It oscillates between killing and dealing. Pakistani rulers accustomed to duplicity shore up the rhetoric of Pakistan being the frontline ally in the war on terror so that more American aid would pour into the nation's militarized economy. Periodically, poor villagers and school children in the tribal areas are killed to showcase the war on terror. These killings are ritual sacrifices to quench the Bush administration's insatiable thirst for blood---blood as proof that Pakistan is killing Muslim militants. But even Pakistan’s killings are intermittent and convoluted. To frustrate Americans and to confuse the people of Pakistan, the ruling elites frequently flip and make peace with the militants.

The 2007 Red Mosque massacre captures what Lord Macaulay has called "the ambition and perfidy of tyrants." Bearded militants and veiled women occupying the mosque in Islamabad, not far from the halls of secular power, supplied the perfect TV footage to highlight the fears of Islamic radicalism. After doing nothing for months so that the Red Mosque militancy could be fully advertised, the Pakistani military eventually conquered the mosque, killing more than a hundred men and women. A triumphant military spokesman informed the world, "The military part of the operation is over. There are no more gunmen inside the mosque." The White House, delighted to see the Pakistani army butchering radicals and extremists, continued with its pressure mantra: "You aren't doing enough to kill militants." The people of Pakistan were stunned to see the military assault on the mosque. They pointed the finger at America and its operators in Islamabad.

Murdering Bhutto

The double-dealing entered a dramatic phase when the Bush administration persuaded the operators in Islamabad to pardon Benazir Bhutto and allow her to put a democratic face on the war on terror. Bhutto, a dreamer born in a feudal family, was a democracy goddess who relished the sight of worshipping hands waving all around her. Bhutto had the uncanny ability to turn puppetry into a noble policy. Bravely, she went to the heartland of militants to make speeches against violence. Bravely, she met President Karzai of Afghanistan, a despised character in the region. Bravely, she considered working with Musharraf provided the general resigned from the army and put democracy back on the rails. In calculating risks to her life, however, Bhutto overestimated the protection that the American intelligence services might have offered in her fight against Islamic terrorism.

Retrospectively, the Bhutto murder makes perfect sense. Anybody who sides with America can be killed in the Muslim world, knowing that the Al-Qaeda is there to absorb blame. Already, false tapes have been manufactured to 'prove' that the Al-Qaeda-Taliban Axis killed Bhutto. The Axis denies the glory. In murdering Bhutto, Islamabad's perfidy was consummate. The context was flawless. The goddess had challenged the dark forces of evil. And the goddess with Oxford and Harvard connections was a fabulous sacrifice. If assassinated, the people of America and Pakistan can be duped into believing that Muslim militants killed the voice of democracy, the woman. This murder, someone thought, will make it easier to carry on the war on terror. The American money will continue to flow, the generals will remain in charge, the deposed judges will be forgotten, the lawyers will be compromised, and Islamabad will be back in business as usual.

Given deep roots of perfidy in Pakistan, it is unlikely that the new leadership emerging from the 2008 general elections will abandon the principle of deceit particularly with respect to the war on terror and understand that the nation's foreign policy must be derived from morally sustainable national interests.

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Summoning Caesar to Trial in Pakistan

2007-12-21T08:02:00.000-06:00

Summoning Caesar to Trial in Pakistan
Liaquat Ali Khan

Gaius Julius Caesar, a Roman military and political dictator, is the role model of the military generals of Pakistan. Every Pakistani Chief of the Army Staff, known as the COAS, daydreams of morphing into a Caesar. Since the creation of Pakistan in 1947, four Chiefs have successfully anointed themselves as Caesars. Pervez Musharraf has crowned himself twice to confirm and reconfirm that Caesar has "all powers" to suspend and amend the Constitution at will. The people of Pakistan are angry but quiescent. The politicians are contesting undemocratic elections to share the crumbs of power. However, the lawyers of Pakistan are not supporting Caesar's charkha, the spinning wheel of all powers.

Caesar's Charkha

Caesar's charkha spins to gather all powers. Before lifting emergency on December 15, Caesar, acting alone, using all powers he had previously bestowed on himself, made several amendments to the Constitution. The Constitution requires that the bicameral legislature pass the amendment with "not less than two-thirds of the total membership" of each House. This procedure, however, applies only if the Constitution is operative. If the Constitution is suspended, Caesar assumes all powers to amend the Constitution.

But how does Caesar assume all powers to suspend and amend the Constitution? Caesar simply asserts power to obtain power. On November 3, Caesar issued the Provisional Constitutional Order (PCO) to assert all powers. In turn, the PCO conferred all powers on Caesar. Using all powers, Caesar suspended the Constitution. The PCO further yielded that Caesar "may from time to time amend the Constitution, as is deemed expedient." Hence, Caesar enjoys the power to amend the Constitution.

The logic is magical. Caesar has all powers to make the law that confers all powers on Caesar.

Take Article 270C of the Constitution. A day before lifting the emergency, Caesar---without consulting the Senate, a powerless chamber of the bicameral legislature, which, ironically, can never be dissolved---issued an Order to amend the Article. The Article thereby stood amended. The amended Article declares that the judges "not having been given or taken oath" under the Oaths law have ceased to be judges. But it was Caesar who made the Oaths law not to invite certain judges to take oath. Caesar's charkha turns as he pleases.

It gets better. Article 270C did not exist in the original Constitution. Using the charkha of all powers, Caesar added Article 270C to the Constitution to permanently remove 'disloyal' judges who refused to endorse his first (1999) suspension of the Constitution. The current amendment to the Article removes 'disloyal' judges who refused to endorse his second (2007) suspension of the Constitution.

After removing the Supreme Court and Provincial High Courts judges who will not spin with Caesar's charkha, Caesar still has no trust even in the judges who have taken the oath to protect and preserve Caesars' charkha. To safeguard even against the PCO judges, Caesar issued an Order, under which all constitutional amendments that Caesar made "shall not be called in question by or before any Court, including Supreme Court, Federal Sharia Court, a High Court, any forum or authority, on any ground whatsoever." No more evidence is needed to show that Caesar detests the judiciary. He detests the lawyers even more because he has not yet been able to pass a law that would disbar all lawyers that challenge Caesar's charkha.

The Lawyers' Call

The lawyers of Pakistan hold Caesar's charkha in contempt. They refuse to endorse the undemocratic elections that are being held to defraud the people of Pakistan and to perpetuate the PCO hegemony of the armed forces. They cannot accept PCO laws and amendments that Caesar has made to muzzle the press and turn the nation into a slave state of foreign masters. The lawyers of Pakistan will not trade away the rule of law for any benefit whatsoever. Therefore, they call for the following measures.

1. The lawyers of Pakistan call for an end to PCO revolutions. A PCO revolution is the mockery of law. It subjects the Constitution to the Order of Caesar. The Constitution is meant to be the supreme law of the land. When a self-anointed Caesar can suspend the Constitution at will, the Order of Caesar is the supreme law of the land. A legal system in which the Order of Caesar is the supreme law of the land, no democracy can succeed, no constitution can survive, and no fundamental rights are protected. Any democratic elections held under the Order of Caesar are inherently deceitful. Therefore, the lawyers of Pakistan are not supporting the January 2008 general elections.

2. The lawyers of Pakistan call for the restoration of an independent judiciary. The first step, beyond compromise, must be to reinstate the judges who have been removed from office on baseless charges of aiding terrorists and conspiring to harm the nation. The second step, beyond compromise, must be to undo the laws that disable the judiciary from reviewing the PCO amendments Caesar has made to the Constitution. An independent judiciary is indispensable for the rule of law. Therefore, the lawyers of Pakistan cannot sacrifice the judiciary to foolishly safeguard the Order of Caesar.

3. The lawyers of Pakistan call for Caesar's trial under Article 6 of the Constitution. Article 6 reads as follows: "Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason." An independent Judicial Commission must be established to investigate whether Caesar has violated Article 6 of the Constitution. An open and fair trial, but without granting any immunity to the defendant, will restore the supremacy of the Constitution and verify the claims of Caesar whether the judges he removed were indeed aiding and abetting terrorists and conspiring to harm the nation, forcing Caesar to proclaim emergency and abrogate the Constitution.

In supporting lawyers, Pakistan declines to live under the Sword of PCOs, which can fall anytime to cut the Constitution into pieces.

Ali Khan is professor of law at Washburn University in Topeka, Kansas.

Solidarity with Pakistan's Lawyers

2007-11-29T21:14:00.000-06:00

Here is a video supporting the lawyers of Pakistan

Liberating Pakistan: A Test Case for the World Media

2007-11-14T09:23:00.000-06:00

Liberating Pakistan: A Test Case for the World Media
Liaquat Ali Khan

Pakistan offers a superb opportunity for the world media to test whether information can undermine a non-constitutional dictatorship. I am not proposing advocacy journalism that strives to alter viewpoints. Nor am I proposing that the world media incite the people of Pakistan to take arms against the military ruler. The world media must respect the pluralism of governments, political systems, and constitutions. The world media must also allow the people of a nation to solve their problems in their own ways at their own pace. What is at stake in Pakistan, however, is a usurper's willfulness to shut down the channels of information so that the lawlessness of the army rule will not be exposed either to the people of Pakistan or to the world. This design to commit crimes under the cover of information blackout is an unlawful objective that the world media must vow to defeat.

Subverting injustice is the duty of a free press. In this day and age, no ruler anywhere in the world should be allowed to succeed in undermining the rule of law, suspending the people's fundamental rights of life and liberty, disgracing en mass the judges of superior courts, and transporting the nation's eminent lawyers to remote prisons in solitary confinement. This sort of tyranny flourished in the dark days of history when the world media had fewer means to access the story and when no ethics informed the enterprise of journalism. If the world media were successful in laying bare the usurper's entrails in Pakistan, future egomaniacs will be discouraged to impose personal rule in nations with weak institutional protections. The ethics of journalism demand no less.

Arms of Ethics

Numerous journalists' codes of ethics throughout the world empower reporters and editors to expose the abuses of power and the trampling of the people's basic rights that safeguard the dignity of life. The Society of Professional Journalists (SPJ) Code of Ethics mandates that journalists be "honest, fair and courageous in gathering, reporting, and interpreting information." Emphasizing courage, the SPJ Code further demands that journalists "give voice to the voiceless." This ethical responsibility is most pertinent in Pakistan when a military usurper has abridged the freedom of speech and clamped down on the national media to suppress the voices of the people.

India's Code of Ethics captures a fundamental truth when it announces that "a free press can flourish only in a free society." The people of Pakistan are no longer free. They have been denied access to the world electronic media, including the BBC and CNN. Independent TV stations have been turned off. Despite coercive restrictions on the print media, Pakistani journalists are making bold efforts to expose the abuse of power. The World media, particularly the media in free societies, can help by reporting what the Pakistani media cannot. The stories of suffocation of a people must be told making it harder for the usurper to breathe.

The Al Jazeera Code of Ethics highlights the interconnectedness of the world media and the duty to help a nation's journalists under distress. It states: "Stand by colleagues in the profession and offer them support when required, particularly in light of the acts of aggression and harassment to which journalists are subjected at times." In proclaiming emergency, the Pakistani usurper has blamed the media in weakening what he calls the writ of government. Pakistani journalists may soon be tried in military courts for crossing the line the usurper has drawn to hold his unlawful grip on power. Even if no trials take place, the threat of military courts will chill journalists who cannot afford to lose jobs for they must work to support families. This stressful harassment of Pakistani journalists, if not exposed to the world, will embolden the usurper to further muzzle the media.

News Analysis

Such has become the power of technology that the usurper’s ban on information is not fully working. The print media in Pakistan, after a few days of confusion and silence, have begun to expose the lawlessness of the emergency rule. The Global media have become even more vigorous in supplying critical information to the people of Pakistan and the rest of the world. An Al Jazeera reporter hid himself in the trunk of a car to meet with a political reader under house arrest. The BBC and the Voice of America radios are broadcasting Urdu programs, most beneficial for the people living in Pakistani cities and villages who cannot afford to buy satellite dishes or who have no internet facilities to watch global TV networks.

While the people of Pakistan must get the news, they also need the news analysis. More than the news, the news analysis is the hardest victim of the emergency rule. National intellectuals, media commentators, and political experts can no longer provide critical perspectives on events of the day. There are pressing questions facing the people of Pakistan. Would it be better in the long run for the nation to have the general elections in January 2008 despite the ban on the right to association? Does the right to vote have any meaning when political parties are unable to disseminate political platforms? Can a regime that has declared a war on the judiciary, the media, and political parties be trusted for holding fair and free elections? Are the elections more important than the freedom of judiciary? These and other questions must be discussed in a cool and reflective manner, not by rhetoricians but experts, so that the people of Pakistan can make informed judgments.

If the global media, particularly radio and television, can supply illuminating and honest analysis on the pressing questions mentioned above, the people of Pakistan who yearn for democracy and the rule of law will be most grateful.

Ali Khan is a professor of law at Washburn University in Topeka, Kansas.

Solidarity with Pakistan's Lawyers

2007-11-07T21:34:00.000-06:00

By Ali Khan

Solidarity with Pakistan's Lawyers: If not Now, When?

The time is here for the lawyers of the world to show solidarity with the lawyers in Pakistan who are waging a struggle to challenge the lawlessness of an ugly usurper, a power addict, a man in military uniform determined to undermine a Muslim nation that yearns for democracy.

From the Lawyers of Pakistan…

The lawyers are protesting in the streets of Pakistan because the usurper has suspended the Constitution "in exercise of all powers." The usurper has arrogated to himself the license to "amend the constitution, from time to time, as he deems expedient." When one man can suspend and alter the fundamental constitution of a nation, the abuse of power is unlimited.

The lawyers of Pakistan are putting their lives on the line because the usurper has suspended the basic rights of the people of Pakistan. The constitutional right that no person shall be deprived of life or liberty save in accordance with law has been suspended. This suspension means that the government can imprison or kill anyone in Pakistan with no protection of law.

The lawyers of Pakistan are refusing to submit to the usurper because under the new regime anyone can be arrested without being informed of the grounds for such arrest. No longer does the arrested person have any right to consult or to be defended by a lawyer.

The lawyers of Pakistan are protesting on the courthouse grounds because the usurper has suspended the freedom of movement. Many Supreme Court Justices and politicians have been detained in their houses. Numerous human rights lawyers have been made political prisoners in their own homes.

The usurper has suspended the right to free speech and the freedom of press. The electronic media have been turned off. The newspapers are no longer free to report the crimes of the regime. They are not free to comment on the news or criticize a lawless government. The lawyers are marching in unison because a nation without free speech is a dead nation and a nation without a free press is vulnerable to gross violations of human rights.

The usurper has suspended Article 25 of the Constitution which says: All citizens are equal before law and are entitled to equal protection of Law. When the government abandons the equal protection of laws, weak individuals and weak groups are the first to suffer, and suffer the most. The lawyers have taken the vanguard of protest because legal safeguards against blatant discrimination have been removed.

The usurper has fired the Supreme Court Justices who refused to accept unlawful dictation and who demanded that the usurper respect the Constitution.

The lawyers of Pakistan are being beaten, detained, and taken away from their children and families. They have been charged with the crimes of terrorism because they have made a commitment to stand for the rule of law, democracy, and fundamental rights.

The lawyers of Pakistan need the moral support of lawyers around the world.

To the Lawyers of the World…

The lawyers of the world must contribute to this struggle against a lawless dictator and express solidarity with the lawyers of Pakistan.

Global solidarity of lawyers will forge effective resistance to a dictator in Pakistan who has revoked all constraints of law to gratify his infatuation with power.

Global solidarity of lawyers is needed because dictators can rise in any nation. No legal text furnishes security against power addicts who subvert even the noblest constitution to maximize their willfulness.

When the lawyers and judges of the world are fearless and determined to uphold the rule of law, the tide of tyranny can be abated. The power of law lies in the lawyer's commitment to subvert injustice. Lawyers are the guardians of the law.

Global solidarity of lawyers will show to the world that the profession of law anywhere and everywhere stands for the rights of the people, all the peoples, and a right diminished anywhere is a right diminished everywhere. A tyrant tolerated in any nation pollutes the whole world as lawlessness spreads across borders.

Let the lawyers of the world get together in big cities and in small towns. Let them assemble peacefully, exercise free speech, and pass resolutions to condemn the mistreatment of lawyers in Pakistan.

Let the lawyers of the world speak against the suspension of fundamental rights in Pakistan. Let them demand that the Justices of Pakistan Supreme Court be freed from detention so that they can continue their charge of maintaining the rule of law. Let the lawyers of the world petition their leaders to put pressure on the Pakistani dictator to restore the constitution.

If the lawyers of the world do nothing to support the lawyers' resistance in Pakistan, tyranny will be entrenched.

Free Markets of Islamic Jurisprudence

2007-10-21T18:57:00.000-05:00

This Article examines both internal and external scholarships and their respective contributions to the fiqh markets. It first explains that the fiqh markets are sustained through internal scholarship that shapes the rules of Islamic law. It later examines the role of external scholarship that might influence these markets. Although the fiqh markets are essentially Islamic, the external scholarship may offer clarifying insights and constructive criticisms. Such external scholarship may not directly influence the development of fiqh, but its indirect impact on the fiqh markets cannot be ignored. Finally, the Article also discusses the disengaged scholarship that manufactures disrespect against the Quran and the Prophet. It also highlights external scholarship that paints Islamic law as a system founded on fraud and plagiarism. The fiqh markets disregard the disrespectful scholarship because assaults on the Quran and the Prophet furnish nothing useful.

Salafism

2007-09-29T07:59:00.000-05:00

Salafis argue that the best Islamic practices are to be found in the first three generations of Muslims--Prophet Muhammad's companions, and the two succeeding generations after them, the Tabi‘in and the Taba‘ at-Tabi‘in. They derive the legitimacy of Salafi d'awah from the following saying of the Prophet:

The people of my generation are the best, then those who follow them, and then whose who follow the latter (i.e. the first three generations of Muslims).

In reviewing Salafism, it must be kept in mind that Islam is not mere ritual. Islam is concrete behavior. Islam is conduct in this life and preparation for the next. A good Muslim is constantly striving to adopt the best practices consistent with the Quran and the Prophet's Sunna. Islam should never be confused with Islamic history. Islam was completed at the Prophet's death. The Quran was completed. And the Prophet's Sunna was completed. After the Prophet's death, in 632 A.D., Islamic history begins. The practices of the first four caliphs and the first three generations were consistent with the Quran and the Sunna. However, even the practices of these early Muslims may never be confused with Islam, simply because these practices were part of Islamic history. Muslims are bound to obey the laws of the Quran and the Sunna. But practices of the first four caliphs and the first three generations are not binding on subsequent generations, even though they are most persuasive. The Quran and the Sunna cannot be overruled. But juristic practices of various generations in the Islamic history have no legitimate claim to immutability.
submitted by Abu Kashif

Phyllis Chesler's Scholarly Integrity

2007-09-23T09:07:00.000-05:00

Nathan Alexander, in reviewing Phylis Chesler's recent book, The Death of Feminism, says as follows:

Misogynistic Islamic attitudes towards women are being secured in America’s courts system today under the guise that Islam is “persecuted.” Chesler writes of Muslim scholar Ali Khan of Washburn University in Kansas, who argues that exposing the abuse of women in America’s Islamic communities should be against the law. In a recent publication, Professor Ali Khan argues that Islam is a form of intellectual property, hence its adherents have the right to protect its “integrity” from “innovations, repudiation, internal, disrespect, and external assaults.” In such situations, Chesler argues, “Islamic Shari’a law would actually replace American law when it came to those identified (by whom?) as Muslims.” Where is feminism when it comes to Muslim women, Chesler asks. It’s busy trying not to offend “Muslim culture,” so as not to appear “racist.”

I've not read the book. It is unlcear whether the book reviewer is attributing the above statement to the author or whether the author has indeed made such a statement. It appears that neither the author, nor the book reviewer, has read the article to which they refer. If you read the article, you will not find it misogynistic towards women. The article is a jurisprudential piece that explains the fundamentals of Islamic law. I leave it to the readers of the article to make their own informed judgment. There seems to be a campaign to trash the article on Islam as Intellectual Property.

Islamophobia among Journalists and Intellectuals

2007-09-13T16:33:00.000-05:00

2007-09-12T19:34:00.000-05:00

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Sharif's Lawless Deportation

2007-09-11T20:06:00.000-05:00

By L. Ali Khan

On August 10, Pakistan's former Prime Minister Nawaz Sharif who had come from London to campaign for the restoration of democracy was rudely deported to Saudi Arabia within hours of his arrival at the Islamabad airport. The deportation decision came from General Pervez Musharraf, who had ousted the Sharif government in the 1999 successful military coup. At the time of the coup, Sharif was unpopular for a variety of reasons, including Sharif's distaste for any checks on powers of the parliament and his exuberance for unregulated markets. Sharif was charged with crimes of corruption. After spending months in prison, Sharif allegedly plea bargained his way out of the criminal cases. He entered into an exile agreement, promising not to return to Pakistan for a period of 10 years. Saudi Arabia, which brokered the deal, offered asylum to the ousted prime minister.

The exile agreement and Sharif's deportation raise serious plea bargaining and constitutional questions. These questions also put in doubt the US commitment to democracy in the Muslim world.

Plea Bargain Questions

In defending Sharif's deportation, the Musharraf government argues that Sharif has breached the terms of his contractual exile and "that, from now onwards, no friendly state or individual would ever believe any verbal or written agreement of Nawaz Sharif." A day before Sharif's arrival in Pakistan, the Saudi intelligence chief met with Musharraf for more than two hours. The intelligence chief later announced in an open press conference that Sharif was bound under the exile agreement not to return to Pakistan before 2010.

The contractual arguments made to defend Sharif's deportation are part secular and part Islamic. The secular argument emphasizes the logic of plea bargain-- a type of contract that the defendant makes with the government to avoid prosecution of criminal charges. Instead of spending years in prison upon conviction, the argument goes, Sharif bargained to be exiled to Jeddah, where the Sharif family operates extensive business and maintains a lavish mansion known as Sharif Palace. This secular argument draws support from Islamic norms under which Muslims are obligated to faithfully perform agreements. "And (truly pious are) they who keep their promises whenever they promise," says the Quran (2: 177). In criticizing Sharif for his premature return to Pakistan, Musharraf makes the secular argument whereas the Saudis make the Islamic argument.

Upon scrutiny, however, these contract-based arguments are far from persuasive. Unlike the United States, where plea bargaining is the primary method for the disposal of criminal cases, Pakistan does not subscribe to plea bargaining as a lawful method for determining guilt and meting out punishments. Sharif's plea bargaining was contrary to the laws of Pakistan and its enforcement is tantamount to punishing unproven guilt procured under pressure. Furthermore, Sharif's plea bargaining was conducted without legal safeguards and judicial supervision considered indispensable in plea bargain cases. A plea bargain negotiated in a prison cell has no validity under any rule of law.

The Islamic argument for the enforcement of the exile agreement is even more problematic. The Quran does mandate the performance of contracts; and, exiling is a lawful punishment. Under Islamic law, however, agreements must be voluntary and transparent. Agreements obtained through coercion are invalid. A marriage contract, for example, is invalid if spousal consent is not freely given. Even a commercial bargain is set aside if made under confusing and less than transparent circumstances.

Sharif's exile agreement was neither voluntary nor transparent. General Musharraf coerced Sharif to leave the country so that his military rule would face no popular resistance. It is unclear whether the exile agreement was ever reduced to writing. There is no evidence that Sharif signed the exile agreement. The circumstances surrounding the agreement are muddled, not transparent. Under Islamic law, therefore, the exile agreement will be considered dubious and unenforceable.

Constitutional Questions

Notwithstanding the exile agreement, the Pakistan Supreme Court in a constitutional petition decided that Sharif has the constitutional right to return to Pakistan. In its short but concise order, the Supreme Court relied on Article 15 of the Constitution to declare that Sharif as a citizen of Pakistan has "an inalienable right to enter and remain in country" and that his constitutional right to return "shall not be restrained, hampered, or obstructed by the Federal or Provincial government agencies, in any manner." Rightfully assuming that the Court has overridden the exile agreement, Sharif returned to Pakistan.

The Musharraf government has complied with only one part of the Supreme Court Order. It let Sharif enter the country but refused to let him stay. The Supreme Court Order recognizes two distinct rights protected under Article 15 of the Constitution. The first right empowers the citizen to return to Pakistan. The second right confers on the citizen the option to remain in Pakistan. Under Article 15, the citizen's freedom of movement may be restricted by law in the public interest. However, the Article imposes no restrictions whatever on the right to remain in Pakistan. Hence Sharif enjoys an unqualified right to remain in Pakistan, even though the government may restrict his movements for a credible public interest reason. Ignoring the Constitution and the Supreme Court Order, the deportation subverts Sharif's fundamental right to remain in the country. The deportation also denies the people of Pakistan the opportunity to find out whether Sharif committed any crimes while in power.

American Response

For most Pakistanis, the US response to Sharif's deportation is disappointing. Unlike the European Union, which has asked Musharraf to respect the Supreme Court Order, the Bush administration has dodged the issue. The Bush administration argues that the Sharif deportation is Pakistan's internal matter. This non-interventionist argument, in addition to sounding hypocritical, lends approval to deportation. The Bush administration's alliance with Musharraf is contrary to American interests and values. It is not even smart because Musharraf has reached the end of his rope. The alliance with a military dictator offers one more proof that the Bush administration has no serious interest in defending democracy in the Muslim world.
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Ali Khan is professor of law at Washburn University in Topeka, Kansas.

An Islamic View of the Battlefield

2007-09-08T08:42:00.000-05:00

In his latest 9/11 (2007) video message, Osama bin Laden has supposedly said: O'Americans, Muslims will continue to kill you unless you embrace Islam." Even if this message is authentic, which I doubt, Islam allows no such notion of jihad. This is the worst possible way to invite non-Muslims to Islam, contrary to the Quran's commandment: Sura an-Nahl (The Bee) 16:125.

Islam rejects all conceptions of holy war. Muslims are not allowed to engage in any aggressive war to spread Islam or to impose its faith or laws on others. Muslims do not believe that God is at war with Satan, nor that He needs human help to win this battle. Any such belief is contrary to God's Unity and Sovereignty. God is above all human conflicts, and He has no conflict with Satan or any other force in the universe. God is Supreme and in complete control of all things that exist or belong to the world of the unknown. Wars occur when human beings shun the path of peaceful spirituality and pursue their inclinations for warfare. Muslims are permitted to enter the battlefield to fight oppression and occupation. They fight hard to defeat the enemy. While a religion of peace and spiritual submission, Islam is also a pragmatic religion that recognizes the existence of satanic nations with their corrupt ideologies of shahawaat and predations. Against such satanic nations, Muslims are utmost vigilant.

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Advocacy under Islam and Common Law

2007-09-08T07:50:00.000-05:00

This Article demonstrates that advocacy arose as a reformist doctrine under both Islamic and common law traditions. Reformist advocacy fights laws with laws. In this fight, both traditions require that the advocates striving for justice be courageous but courteous. The advocates must be courageous to challenge power-based injustices. They must be courteous because aggressive manners are not essential to effective advocacy. For a variety of reasons, reformist advocacy has lost its way in both traditions. Advocacy in the United States has turned to manipulation whereas advocacy in the Islamic tradition has embraced militancy. At a time when America and Islam are engaged in an epic struggle to influence each other, this study illuminates advocacy values they share and critical distinctions they draw in the enforcement of advocacy ethics.

Pelosi on the Right Path

2007-04-05T10:54:00.000-05:00

House Speaker Nancy Pelosi is moving on the right path in exploring the possibilities of negotiated solutions to the problems that threaten the peace of the Middle East. Her bold initiative to meet with two Muslim rulers, the Syrian President and the Saudi King, is in line with the UN Charter and customary international law that require nations to resolve disputes without threats and employment of force.

As the Speaker of the US House of Representatives--which reflects the will of the American people in the most recent general elections (more so than the White House)--Pelosi has every right to take foreign policy initiatives that involve the enumerated constitutional powers of the Congress. According to the Constitution, the Congress provides for the common defense of the United States; it has the power to regulate commerce with foreign nations; to define and punish offenses against the law of nations; and to declare war. Speaker Pelosi’s Middle East visits involve the constitutional issues of defense, commerce, law nations, and war and peace. She must gather facts on her own, in light of the lies that have been told to the Congress.

Furthermore, the United States is bogged down in a bloody war that refuses to go away. American soldiers are dying in dozens. The country has lost respect across the world. Americans face ill-will when they travel abroad. The US foreign policy is anti-commerce as American businessmen are losing opportunities in the Muslim world and elsewhere. American universities and colleges are losing foreign students due to stupid and paranoid visa policies (a complaint that the Saudis made to Speaker Pelosi). In view of these grave matters, Speaker Pelosi must explore the possibilities of turning the matters around so that the House can discharge its constitutional duties in an informed manner.

ali khan