Liveblogging Session 3: “U.S.-Muslim Relations: Where Are We Heading?”

Day 2 of the HLS-Brookings Program on Law and National Security conference begins with Prof. Blum  introducing Chibli Mallat, moderator of the first panel of the morning.  He says he would like to point out three elements that “seem to be dominant” and at the juncture of discourse over U.S.-Muslim relations.  The first is the continued discussion over what happened on 9/11 from the perspective of international law and from the various countries involved.  Mallat has characterized it as a crime against humanity, rather than simply an act of terrorism.  He wonders if there were a judicial process possible under international law.  Another important dimension, according to Mallat, is the apprehension of Islamic law, which is portrayed in some circles as the “new enemy.” Finally, he notes the “happy novelty” of the Arab Spring. He believes this will occupy us for the next decade.  Mallat hands over the discussion to the panelists. Deputy Assistant Secretary of State Tamara Cofman Wittes begins the discussion. She wants to talk about a small subset of the broader topic of U.S.-Muslim relations, because she only works on the Middle East.  She notes that the events in the Middle East have created an unprecedented environment to talk about the broader topic.  Wittes says that the U.S. sees what’s taking place as a time of tremendous promise for the people in the region,  the U.S., and the broader international community for issues of international security.  There are three reasons.  First,  the relationship between democracy and security, especially when  it comes to violent extremism.  When  democracy is valued,  we gain security.  Democracy gives people a greater stake; it weakens the appeal  of those who call for violence.  She concedes that it’s not a panacea, but it’s helpful in making society more resilient to such forces. A second reason is the way in which the revolutions came about: non-violent and impressively determined. Wittes says it stands in contrast with the message of al Qaida, which emphasized violence in bringing dignity to the people of the region. A third deeper reason to think the events as promising and hopeful for stability and concern will take a bit longer to explain, says Wittes.  The developments in the region are based on longer-term trends that have been building for a decade or more.  The “old Middle East” was increasingly brittle; it’s now gone forever, says Wittes.  From this point on, lasting stability will be built on the foundation of a renewed social contract that will rely on profound political and economic reforms. Trends include demographics, namely the “youth bulge.”  There either was not enough growth or too much income inequality. Wittes notes the importance of new media in the revolutions, but wants to say that “older” new media were important too, such as satellite television,  such as al-Jazeera. People were able to compare their lives–the gaps between aspirations and opportunities–to the lives of people of countries you see as peers. Wittes says that these forms of media allowed people to quickly inform the rest of the world what was happening in their countries. Returning to the broader point, Wittes notes that these trends have been building for some time.  She says it’s crystal clear today that the people of the region see political change–democracy–as the way to resolve their challenges. Wittes says that the path to reform is fraught with difficulties, but the United States believes more open and transparent governments will be more stable. There will be a more reliable and stable foundation for our strategic relationships–people to people, rather than just government to government.  The United States is seeking to deepen these links.  But the U.S. believes that the changes are shaped by the people of the region, not the United States. Mallat would like to take five minutes for comments and questions for each speaker.  He wants to talk about non-violence.  He says that the news today from Syria suggests that people want “foreign intervention” a la what occurred in Libya and an abandonment of the non-violent approach. The questions is how can we keep non-violence in Syria on a “winning course”? Wittes says that we should not think of intervention in a dichotomous manner.  She notes that the United States has been very engaged in responding to the situation in Syria–stop the violence, allow a process of democratic transition to begin. Engagement has been at the level of diplomacy,  action at the UN Human Rights Council,  and UN sanctions against individuals and organizations implicated in abuses of civilians. She sees the potential for a shift in Syria to a negative direction; but this potential for instability and possible violent outgrowths is because of the choices and behavior of the Syrian government.  It is the one that is generating this threat to the region. Prof. Peter Marguiles asks about the recent violence in Egypt.  Wittes says that in these kinds of transitions, there is the possibility of national pride moving into jingoism and xenophobia and the abuse of political freedom to make hay out of other issues or engage in hate speech or incite violence.  Each society will find its answers to protect against these vulnerabilities.  But to say that these things manifest and thus the whole program of democratization is wrong is not correct. Wittes adds that the priority of the people in Egypt is not war in the Middle East.  As the democratic process takes hold, the Egyptian people will  seek peace, according to Wittes. Next, Hedieh Mirahmadi begins her comments. She wants to look back to 1979–not to the Iranian Revolution, but to the developments in Afghanistan at the time.  She notes that after the war there ended, the militants sought other battlefields. She notes that these Islamist militants are not only violent, but also takes a position that those disagree with their religious interpretation are deserving of death.  Their views engender anti-Americanism, but the Islamists have received good governance and democracy training from various western NGOs,  such as IRI et al. Mirahmadi notes that the moderate majority is disorganized and fragmented,  whereas the maddrasses are not in Pakistan. She believes that these networks might take to arming themselves as they have in Somalia and in Chechnya. She notes that in her research,  the moderates believe that the “deep construction of social norms” imposed by the extremists are a danger.  Mirahmadi says that the United States must choose its partners wisely–it must seek partners that espouse shared universal  values. There are scholars who publish books and articles that challenge the views of the violent extremists.  She says this counter narrative promotes values that seek to empower society.  Engagement should include resources for those at risk of falling under the influence of the extremists. But groups that are capable of engaging in the at-risk countries are under-funded. She says how will U.S. foreign policy change in response to the changes in the Middle East.   But she says that the United States should have funded those forces that could have prepared the societies for these changes. Mallat begins to by identifying the elephant in the “Sunni Arab room”: Saudi Arabia. What do we do about Saudi Arabia? Mirahmadi says that the U.S. has sought to limit the Saudis’ export of the violent views.  But the Saudis will tell you that it’s an out-of-control Frankenstein; it would require changes in not only in how they direct funds, but also replacing the literature and retraining imams. It’s a huge problem and there is no easy solution. Wittes says that the comments raise an interesting question. She says that Mirahmadi says the United States should be fostering a pluralistic Muslim identity.  But she says that over the last 10 years, especially the last 2, the United States has sought to reach out to civil society precisely to support those engaged in society to promote pluralism.  But Wittes says that promoting pluralism is not the same as encouraging a certain Muslim identity.  This could become like picking winners. Mirahmadi says this often comes–”we cannot pick the right Islam.” She is not talking about picking winners as if they’re horses in a horse raise.  It’s about finding people who share our values.  It’s about accepting and believing that there are Muslims–a majority–who believe in in shared universal values. Our foreign and technical assistance should focus on this. A questioner from the audience asks if certain groups, such as the Shi’a in Bahrain, are ones who share our values?  Mirahmadi is not talking about intervention,  but technical foreign assistance.  Wittes says that in the region where she spends her time, we’re doing what Mirahmadi wants us to do–foreign assistance does not go to the Muslim Brotherhood,  but party-building efforts for those groups that want to promote a democratic process.  Issues with engagement with the MB stem from their lack of desire to engage.  The goal  is to promote a diverse political marketplace.  Wittes says that if this is the target, then more groups will emerge that will want to promote the broader views of society.  She adds that outcome is not for us to determine.  She notes that the developments are a mark  of the resilience of the Muslim societies in the region; they have put forth these new processes, despite their being subjected to violent views over the last 30 years. Prof. Intisar Rabb responds to these comments.  She says that her optimism lets her see more internal diversity in Saudi views and this will spread as technology permits. Prof. Samuel Rascoff begins his comments next. He says he’d like to begin by noting that the elephant in the room is not Riyadh or Tehran,  but Columbus, OH. This is where some of the most problematic features of domestic counter-radicalization is ongoing.  Efforts there are emblematic of efforts to intervene in Islam and the belief system of Muslims in the United States.  Rascoff is skeptical of counter-radicalization if it seeks to promote an “established Islam,” one that is supportive of the national security objectives of the state. He’s skeptical of them on two fronts.  The first is law (i.e, the First Amendment) and the second is the strategy (i.e, their effectiveness).  He believes government should shy away from them. First,  Rascoff says we are doing three things. First,  we’re engaging with Muslims to promote counter-radicalization.  It’s not just in Ohio, but throughout the United States at the state and federal level.  He believes that cumulatively they speak  to a desire to shape ideology. This presents itself as a more attractive and “less kinetic” way to get at the problem of terrorism.  It’s not just engagement, but bureaucratic entrenchment.  He says that a lot of what goes on under the banner of domestic intelligence involves marking the boundary between radical and mainstream Islam. There is an expressive dimension; it’s not just brochures, but officials making statements on contentious religions concepts. He says he’s skeptical because of “anti-Erastianism.” He says that the founders of the Republic were concerned about how government might manipulate religion to achieve secular effects.  Counter-radicalization is emblematic of that phenomenon and thus  is in fundamental tension with the core concept of the Establishment Clause. When it comes to strategy, he believes that American and Western  officials lack the capacity to understand the issues–it’s no coincidence that we keep screwing this up. Rascoff says he’d like to associate himself with comments from Mallat on the banning of Sharia.  This is tied to the business of trying to shape what Islam means.  He notes the recent revelation of FBI training suggesting Islam is endemically violent (see Spencer Ackerman’s piece on the Danger Room blog of Wired.com). Rascoff says that officialdom must stand done. If there is progress in counter-radicalization,  it must come from those empowered to speak in the various communities,  not the government. Mallat says he’s so impressed with Rascoff’s counter-intuitiveness that he has no questions. Mirahmadi asks Rascoff whether government can stay out of religion (say, discussion of concepts) but still empower communities. Rascoff says that it’s an improvement,  but it’s still there as a sub-text.  He says that there is some talk that this is political, not religious–but he doesn’t buy it. Next, Ben Wittes wants to push Rascoff on the “sort of asymmetry” of why law enforcement agencies and others are getting involved like those in Ohio are getting involved. He says these efforts have to do with community relations, noting the efforts in Portland, OR. He says that if you don’t establish links between law enforcement and the community, there is a vaccum–what should the interaction look like?  There must be relationship in which the community will engage with the Bureau. He says he buys that it does not look like what is going on in Columbus, but is there a way to have a conversation that does not implicate the Government in defining Islam? Rascoff says yes, and it’s on the level of “community affairs.” It’s been going on forever and should go on–they should be the forum of conveying concerns to the community.  But what’s different with counter-radicalization is that it appears to be a part of a strategy of counter-terrorism–it’s more than just community relations.  Rascoff says that NYPD has kept distinct community relations and counter-terrorism.  The blending of these activities with national security is what is concerning. Mallat next hands the podium to Prof. Rabb. She says she’d like to start by drawing our attention to a lesson from when she was clerking on the Third Circuit with respect to framing language in decisions they were drafting. She said that the judge said to tell what happened, not the story of the party who wants to win wants you to tell.  She says that language in cases is interesting, especially in courts’ use of Islamic terms.  Rabb says she’d like to talk about framing and the significance of framing some of these discussions post 9/11 in areas of domestic law and religious freedom. Rabb also wants to discuss how courts and legislatures have discussed these issues.  And third, where are we heading and where should we be heading? First, the big point–U.S-Muslim Relations suggests that the United States and Muslims are two parties on par with each other.  But we know that’s not so; Muslims have been in the United States for ages. In fact, she notes the discovery of a burial ground near Ground Zero of Muslim slaves brought to New Amsterdam. She says the larger legal problem is the framing of Muslims in America as foreign and exotic.  There is a popular perception, according to Rabb, that is distinct from legal realities.  In the public’s perception, Muslim beliefs and practices challenge the American way of life. First, an idea of a physical threat–manifested through laws that regulate,  control, and prosecute Muslims in certain arenas.  Second, a threat to our values and way of life.  There is discussion of an impending takeover of Islamic law.  She notes that this seems on par with the Communist threat that has now dissipated. Rabb begins with a review of the courts’ treatment of Islamic law.  On the way hand, some treated is a “fanciful” religion, but others treated it on part with other religions, but those opinions often found against the Muslim claimant.  We find that our courts apply U.S. law, looking to the First Amendment, to balance the rights of individual claimants through the confines of U.S. constitutional and statutory law.  She says that this comes up in employment, religious rights, and in some areas of foreign law (courts apply a state’s civil law, not the Islamic law itself). Rabb look to religious claims and notes research saying that there is a “distinct Muslim disadvantage.” This research shows that Muslim have a success rate of 22%, compared to claimants from other communities, which enjoy a success rate of 38%. Rabb briefly discusses how the movement to ban Sharia law is attacking a problem that does not exist, since courts do not cite Sharia law. Rabb says that this debate over religious liberty in the United States could have implications for U.S. policy, especially in light of the Arab Spring. Mallat now would like to devote a few minutes to comments.  He says he was impressed with Rabb’s use of scholarship in such a short period of time.  He said he’s impressed by the scholarship showing how frivolous the debate over Sharia is; however, Mallat believes it might not be so frivolous.  He believes there will be more substantive debates.  The debate will not leave us in the short term for both political and legal reasons. Rabb says she agrees with the sentiment largely and wants to clarify. She says on the legal dimension, they’re not really contentious as a matter of First Amendment or Supremacy Clause jurisprudence. But on a substantive level, there will be continued discussion and debate. A question from the audience asks how the U.S. can have a vision for the Muslim world when  so much focus has been on the Middle East (i.e., the Muslim world is incredibly diverse)?  Second, he worries about the potential of negative consequences of democracy. Rabb responds, saying how the first question goes to framing to some extent. Arabs only represent 13% of the Muslim world. She says that policies should be tailored to realities.  There is no way to imagine and define in advance what we think Muslims are.  We must first begin with our principals and then apply to the contexts. Wittes says a few words on how the State Department organizes on these issues.  State has representatives to Muslim communities throughout the world.  This reflects the approach of the Administration to have broader engagement beyond government-to-government. Next, Executive Editor of the Harvard National Security Journal, Brian Itami, asks how the focus on anti-Islamic tendencies in the United States affects efforts to develop civil society abroad.  Mirahmadi says there is some concern abroad about how the United States treats the Muslim community,  but those abroad are more worried about their own issues.  Rascoff points to how Cabinet level officials were calling the “insane minister” in Florida as reflecting the domestic concern. Another questioner asks how draconian punishments in Islamic law can coexist with democratic values.  Rabb says that Islamic law and political  theory has historically been quite diverse.  She says that in her reading, there is no one-to-one reading between Islamic law and the development of the State. The next questioner focuses on how the United States often “picks winners,” but this can be a kiss of death. How do we go beyond that?  What tactics can we use? She notes that younger groups  might be fearful  of alignment with the United States. Mirahmadi says this sometimes makes her laugh; she says groups say that American support is not the kiss of death–they want American money and support.  Recently,  Pakistanis have talked about seeking some political cover–i.e., an NGO cut-out.  But this  reflects the current state of the country post bin Laden raid. Rascoff says that this tension is manifest domestically now in counter-radicalization efforts. Wittes adds a few words, noting that we must keep a strong sense of agency of those in these countries making these decisions.  The United States must allow these groups make their own choices as to with whom they should associate.  When the United States seeks to be a partner, it sees great promise in the expansion of civil society in the Arab world.  It will partner with those who want to partner. With that Mallat thanks the panel and ends the first session. The second panel of the morning will begin at 11:25.