PERSPECTIVES is a new feature on Maydan that provides quick expert analysis on hot-button issues that impact Muslim issues in the US and around the world. In this first installation, experts at Ali Vural Ak Center for Global Islamic Studies reflect on immigration and #MuslimBan2.0. For an earlier town hall with GMU faculty on the first ban, see this piece on Maydan.
The Historical Context
The Islamophobia behind the recent executive order banning entry of nationals from seven (and then six) Muslim countries is fed by the conviction that Islam is an anti-Western political ideology masquerading as a religion. According to this view, Muslims are enjoined by God to take over political systems wherever they may live, and to attack those systems that are not already under their control. Hence our own national security requires banning Muslims from entry, surveillance of those who have already made it in, and promulgation of laws that would prevent any effort to do so (by outlawing sharia for example).
Leaving over 1400 years of evidence to contrary, in a rich heritage of ritual, literature, poetry, philosophy, science, art, music, and architecture that attest to the ethical and spiritual expression of this monotheistic religion, let’s look at the facts regarding its supposed politics. From the time of the Prophet Muhammad’s death in 632, Muslims debated and contested the role of politics in religion. That debate to be sure resulted in civil wars, and the Muslim community’s split into several groups such as the Shia and Sunnis (much as debates over theology resulted in numerous schisms and splits in Judaism and Christianity over their long histories). But it also resulted in an effective separation of church and state in Islam. From the early 800s, or about 150 years after the Prophet’s death, the majority Sunni Muslim community conceded that politics best be limited to law and order, while religious guidance be provided by scholars trained in the scriptures of Islam. The ruler should of course theoretically be a good Muslim, but his legitimacy ultimately rested on his ability to support and enforce the guidance of religious scholars, not on his own religious authority. Hence rulers styled themselves protectors of the faith, much in the same way that their counterparts in the west did when claiming titles such as Holy Roman Emperor or head of the Anglican Church as in the case of the England.
“The Islamophobia behind the recent executive order banning entry of nationals from seven (and then six) Muslim countries is fed by the conviction that Islam is an anti-Western political ideology masquerading as a religion”
The guidance of religious scholars included developing laws and serving as judges, and legal counsel. These laws, popularly known as sharia, comprised two general categories: that of religious worship, and that pertaining to maintening social order. The treatment of religious worship detailed the fine points of prayer, fasting, charitable giving, pilgrimage and so on. As for the social order, its maintenance was ensured through rules dealing with property, contracts, marriage and divorce, and so on. None of these laws in other words dealt with political matters per se. In politics, rulers were guided by theories and practice of previous states and empires (including those that existed prior to Islam). So for example, Byzantine and Sasanian administrative practice informed the structure and offices of Islam’s early empires, its taxation policies, and treatment of subjects Muslim and non-Muslim. Rulers also established royal courts that served to amend or appeal sharia law for their subjects, much in the way that common law and canon law often had overlapping jurisdictions in the west.
All in all what Islam produced politically was rather more complex, and often very similar to what Christianity produced in the west. Even as both religions helped to legitimate states in certain ways, they nevertheless functioned separately from the state to provide ethical guidelines for individuals in their relationships with God and with each other.
The National Security Pretext
As a piece of national security policy, the new version of the travel ban is still severely lacking. There have been virtually no instances of citizens from the six designated countries attempting terrorist attacks in the United States in recent memory. Moreover, most of the countries whose citizens have actually been convicted on U.S. homeland terrorism charges—and we’re only talking about 40 or so cases since 9/11—are not included in this new travel ban. It’s therefore fair to ask if this new policy really even gets at the problem it purports to address. The basic underlying motivating factor for the executive order seems to be the idea that vetting procedures for issuing visas are not sufficiently stringent, but I don’t think we’ve seen much evidence to support such a claim. I suspect that most of my former colleagues in federal agencies that deal with visa vetting would tell you the system is already very robust.
Most worrying in the new version of the executive order is the continued inclusion of broad language mandating screening procedures for identifying people entering the country who might harbor “malicious intent,” regardless of what country they come from. I think this will lead to more and more questions about peoples’ political views, the screening of cell phone content, and other measures that essentially try to measure what visitors to the U.S. think and believe. The actual terrorists will have no problem circumventing such measures, and such tactics will likely discourage many people from traveling here because they don’t want be subjected to such indignities. This could have serious repercussions for the American tourism industry and for U.S. business.
“Most worrying in the new version of the executive order is the continued inclusion of broad language mandating screening procedures for identifying people entering the country who might harbor “malicious intent,” regardless of what country they come from.”
One positive development since the original travel ban is the removal of language that provided preferential treatment for persecuted religious minorities applying for refugee status—broadly regarded as a measure designed to help Christians fleeing ISIS-affected areas. The inclusion of such language was problematic for at least two reasons. First, it violated a long-held norm in refugee resettlement policy that the primary criterion for assessing claimants should be level of vulnerability. Second, such a policy was potentially inconsistent with the U.S. Constitution by appearing to discriminate based on religion, and creating a situation where—as Elizabeth Shakman Hurd recently argued in the Washington Post—U.S. Customs & Border Patrol agents would be placed in the position of having to decide whether or not someone was a “true” member of a particular faith group.
The #MuslimBan2.0 and the Religious and Ethnic Minorities
A line-by-line comparison of the texts of the original and 2.0 versions of the executive order (EO) known as the Muslim ban, signal that the White House intended for the new EO to stand up in the courts. It is crucial to remember that when the Ninth Circuit Court upheld the decision striking down the original Muslim ban, it essentially argued that the original EO violated the rights of American citizens who have an interest in seeing the citizens of the countries covered under the ban to travel into the United States. As Noah Feldman previously pointed out, the administration tries its best to eliminate those aspects of the EO ( such as the ambiguity regarding Green Card holders, and favoring Christian minorities among others) in this version 2.0. Importantly, the new EO provides a more pronounced waiver process for certain people with business, academic, medical, or other special interests in the U.S., likely in order to overcome these legal challenges. Nevertheless, my conversations with American Muslim civil rights organizations indicate that ACLU and these organizations are still hopeful that they have a solid legal case against the 2.0 version of the EO.
It seems likely today that, regardless of the judicial process Trump administration will do its best to present at least a few scape-goat cases of “radicalization” to support the Muslim ban and securitization of anything Muslim under the rubric of “radical Islamic terrorism.” Unnamed government officials have already cited ongoing investigations, without providing further information on these cases, to justify the ban. Embracing for a much-speculated executive action targeting “Muslim Brotherhood and those who provide it material support” or a few cases similar to that of the Holy Land Foundation case, American Muslim organizations are currently lawyering up as they realize that further crack down on their institutions is not a far-fetched scenario.
It is to be seen whether the new legal challenges that dispute the constitutionality of the revised EO, arguing that it violates the establishment and free exercise clauses of the First Amendment among other reasons, will be successful. Notwithstanding disagreements regarding exact parameters of Muslim civic and political engagement, the debate surrounding the EO finds American Muslims at a moment when the overwhelming discourse in the United States has been one that is markedly different and embracing of a broader discourse around an American Muslim identity – however this is defined. During often-divisive debates about this discourse, many argued that merely capitalizing on presenting American Muslims as an over-achieving demographic minority and settling for less than other equal citizens (such as eschewing from criticizing problematic domestic and foreign policy agendas) would have negative consequences in the long-run. It seems these groups may have been correct in their assessments about developing a rights-based, more assertive American Muslim identity.
“Notwithstanding disagreements regarding exact parameters of Muslim civic and political engagement, the debate surrounding the EO finds American Muslims at a moment when the overwhelming discourse in the United States has been one that is markedly different and embracing of a broader discourse around an American Muslim identity – however this is defined”
As Abbas Barzegar argues in an insightful piece for Maydan, Muslim Americans are also finding that their struggles intersect with those of other demographic and issue-based minorities. These areas of mutual cooperation simultaneously highlight the internal diversity – and need of an intra-Muslim debate- within the American Muslim canopy. In this regard, the disappearance of government civil rights watchdogs in federal agencies may prove one of the most problematic consequences of the Trump era. Anti-Muslim legislation and violations of civil rights by law enforcement agencies at the state and local level will heighten the significance of these collaborations across the wider issue areas that affect religious and ethnic minorities. Muslim Americans will have to continue to negotiate, perhaps in a more meaningful and concrete fashion than in the past, the exact parameters of their legal and cultural citizenship in order to weather the perfect storm that is brewing in Washington.