Fighting Shariah Through the Law
-- An Interview with David Yerushalmi, Esq.
by Jerry Gordon (December 2010)
Shariah, Islamic law, has become increasingly visible in the debates concerning possible Islamization in the West. It is at the core of opposition to and debate about expansion of mosques in this country. Shariah is a total system that governs every aspect of the life of a Muslim including fulfillment of jihad against non-believers, whether through da'wa, persuasion, or ultimately violence. Shariah is a political, legal, social and military system that threatens basic constitutional liberties and freedoms that we take for granted in America. The lure of multi-billion dollar transactions has created Shariah-compliant international corporate finance markets with active participation by major commercial and investment banks and financial rating organizations. Shariah advisers to these eager financial institutions are proponents of violent jihad and Islamic antisemitism. One egregious example is Pakistani Federal Sharia Court Judge and Hanafi Scholar, Mufti Muhammad Taqi Usmani, who advised Dow Jones on creation of its Islamic Market Index. Egyptian-born Islamic scholar, Yusuf Qaradawi used the term 'financial jihad" to describe Sharia-compliant finance (SCF). As Andrew McCarthy noted in a National Review article, "American Taxpayer, Financial Jihadist", what Qaradawi meant.
Because sharia bars interest (although it permits "profits" that Islamic authorities, in their infinite wisdom, deem reasonable), SCF requires that investments be constantly monitored and that any interest payments be purged. This is done by skimming off a percentage that is then channeled - at the direction of the advisory board - to an Islamic "charity". Of course, as no one knows better than the Treasury Department, many such charities are merely fronts for the financing of terrorist organizations. This is not an accident. When Sheikh Qaradawi speaks of "financial jihad" as an Islamic obligation, he's not kidding: In Islamist ideology, funding those who "fight in Allah's cause" - e.g., Hamas - is one of the eight categories of permissible zakat, the Muslim obligation of almsgiving.
Shariah has entered our legal system through the backdoor of arbitration and mediation panels and even our court system.
One of the prominent opponents of Shariah in our legal system is David Yerushalmi, Esq., a New York and D.C.-based lawyer, litigator and developer of uniform laws aimed at curtailing and outlawing its spread. Yerushalmi designed and sponsored the Mapping Sharia Project whose findings revealed the extent of extremist Sharia compliance in a study of American mosques, soon to be published in a peer review professional journal. He has initiated ground breaking legal actions involving Sharia issues, advancing important federal cases, and has won cases in matters of free speech under the First Amendment. Among these are:
Murray v Paulson brought in the Federal District Court of the Eastern District of Michigan against the Treasury for using TARP monies in the bail out of insurance giant AIG which markets and sells takaful Shariah compliant insurance products. The case has advanced given the denial by the court of the federal government's motion to dismiss. The court is now considering plaintiff's motion for summary judgment asking the court to rule that the U.S. government willfully promoted Shariah in its drive to support AIG's Shariah business.
A federal case brought by five former Muslim clients of the Council of American Islamic relations in the DC Federal District for fraud and racketeering in misrepresenting legal representation. The RICO charges were dismissed by the Court. However, the fraud charges have been upheld in a recent decision.
Several cases brought on behalf of the American Freedom Defense Initiative against the Rapid Transit Systems in New York, City, Miami
Florida, and Dearborn, Michigan for violation of First Amendment rights in connection with bus ads advising Muslims of assistance in leaving Islam. The threat of the lawsuit forced Miami to acquiesce and filing of the lawsuit in New York resulted in a victory in two days. The lawsuit in Michegan required an evidentiary hearing and we are awaiting the court's decision, expected any day now.
Working with The Public Policy Alliance, Yerushalmi has drafted uniform laws for addressing Shariah at both the State and Federal levels. More recently, as General Counsel to the Center for Security Policy (CSP) he co-authored the CSP Team B II Report: Shariah: The Threat to America, An Exercise in Competitive Analysis.
Given the recent passage by popular referendum of an Oklahoma Anti-Shariah State Constitutional Amendment, SQ 755, seeking to ban Shariah, and immediate legal actions brought by CAIR in federal court to stop the law from being implemented, we invited David Yerushalmi to discuss that controversy and others against the backdrop of his courtroom battles, research investigations and legislative proposals.
Jerry Gordon: David, thank you for consenting to this timely interview.
David Yerushalmi: You're welcome.
Gordon: David, you have been prominently involved in anti-Shariah litigation and legislative development in the United States. What is Shariah?
Yerushalmi: Shariah is Islamic law. Normally, when we speak about Shariah we include both the rules of jurisprudence termed usul 'ul-fiqh or the science of the jurisprudence of the law. Al-fiqh are the positive law rulings that are usually generated by way of a question and answer process or fatwa. Together they make up the Shariah.
Gordon: Do you consider Shariah a clear and present threat to our constitution?
Yerushalmi: Well, I don't consider anything a clear and present threat to the Constitution. That is to say, the Constitution is a legal document forming the basis of our legal and political system in this country. I do consider Shariah to be a threat to both our physical existence and our way of life in that we require our political and legal systems to abide by the supreme law of the land grounded in the Constitution. Shariah's purpose is to destroy our legal and political systems.
Shariah is law based upon the word of Allah as represented in the Qur'an and the rulings of the Hadith on various subjects together with the interpretations of the recognized Shariah authorities over a millennia bounded by consensus, what is termed ijma.
The fundamental principle of Shariah is that no law can coexist much less reign supreme over Shariah. So, to the estent that Shariah's purpose is that no law anywhere in the world where Muslims live should coexist or rule over Shariah that would suggest to any rational person that Shariah poses a threat, at least in principal. It is rendered a threat because the methods that are required by Shariah to achieve this end include violent jihad.
Thus we have a principled or theoretical threat in that Shariah must reign supreme and exclusively over every place Muslims live. We have a method, at least in speech, to achieve that end or purpose which includes violent jihad.
The question then becomes whether that threat in theory is a threat in fact. To answer this question, you must ask if there are sufficient numbers of Muslim who adhere to Shariah and if they are prepared to achieve Shariah's purposes through Shariah's methods of violent jihad? In other words, do Shariah-adherent Muslims represent an existential threat?
The answer to this question is available to us by simply simply reading the newspaper or just opening one's eyes. The answer is of course they are. They are engaged in a full scale global war against the United States outside our borders and they successfully recruit and infiltrate our borders with home grown terrorists all the time. So the answer to your question is yes, I consider Shariah a threat to our way of life.
This of course is underscored by surveys in the Muslim world like the World Opinion Survey available for download here which find that 50-70% of the 1+ billion Muslims in Muslim countries desire a global Caliphate and the forced imposition of an al-Qaeda like strict Shariah.
Gordon: Given your involvement in the Mapping Shariah Project, what are the principal findings and in particular, degree of Shariah compliance in American mosques included in the survey?
Yerushalmi: The Mapping Shariah project was a study that we began in 2008 to determine if there was a correlation in U.S. mosques between Shariah-adherence and violent literature promoting jihad. We sent researchers into a random representative selection of 100 mosques throughout the United States. We then measured Shariah adherence along several behavioral axes as independent variables, such as gender separation in prayer, strictness in Shariah-required prayer ritual and dress. Then we measured the existence or the presence of Shariah-promoting, violent literature as the dependent variable, including the Imam's recommendation to study the violent material.
What we wanted to test was the thesis that as mosque worshippers becomes more and more Shariah adherent, one would expect a greater likelihood of violent jihad literature and its promotion by the imam.
While we confirmed the thesis, we also discovered something eye-opening. As mosque worshippers became more Shariah adherent, the presence of violent jihad literature increases commensurately. The correlation between Shariah-adherent mosques and imams promoting this violent literature also held. What was eye-opening, however, was that we found that 80% of mosques in the U.S. are Shariah-adherent and promote this violent literature.
Of that 80% a majority were actually Salafi mosques, which are the more orthodox or puritanical sects of Shariah-adherents. Now this overwhelming presence of Shariah-adherence andpromotion of violent jihad doesn't necessarily reflect the demographics of American Muslims. That is to say, we were measuring mosque attendees, not necessarily American Muslims in the population. Indeed, most anecdotal data suggests that the demographics of American Muslims are that they are fairly assimilated and that the general population would more accurately be represented by the 20% of the mosques that were not deemed to be Shariah adherent and which did not include the violent literature. So what this tells us is that most American Muslims stay home and they would only attend mosques for example during the season of Ramadan. They typically don't attend mosques during the week or even on their Sabbath on Friday.
We measured mosque attendance randomly throughout the week; however, we specifically did not measure it during Ramadan so as not to skew the results. So one thing we find is that the so called moderate Muslims tend not to be consistent mosque-goers. The ones who do go are very Shariah adherent and they are permeated with literature which calls for violent jihad.
The study did not address what the sources and amounts of funding for these mosques were.
Gordon: What evidence is there of the growth of de facto Shariah in the U.S.?
Yerushalmi: There is plenty of evidence of Shariah in US courts. We have recorded many different cases that have appeared at the appellate level where, under three different circumstances, courts in fact entertain Shariah and actually end up applying it as the law of the case. The first example arises when the U.S. court grants comity, or formal recognition of the foreign judgment rendered by a foreign court which applies Shariah, as in Saudi Arabia, Iran, Pakistan or Gaza. If the court were to grant comity or legal reciprocity to that decision then it would be essentially enforcing Shariah law.
Typically when you come to the United States and ask a domestic court to recognize a foreign judgment per the rule of comity, you are asking the court to enforce the foreign judgment as its own. The same would hold true of a private arbitration decision rendered here in the United States or abroad where a Shariah-based religious court issued a ruling based upon Shariah. The winning party typically walks into a court and asks that the court enforce that arbitration decision by granting it comity and to enforce the judgment, which may include sending the marshal out to collect and sell the losing party's assets. In other words, the police power of the state is being exploited to enforce Shariah.
The second example of Shariah being applied in our courts is where two parties enter into an agreement and they include a "choice of law" provision in their contract that requires a court to apply Saudi law, for example, which is Shariah, to adjudicate their dispute. The same result would occur if the contract included a "choice of law" provision requiring Iranian law, or Pakistani or Indonesian family law.
In a domestic matter like child custody disputes, you have cases where U.S. courts are applying a national law based upon Shariah.
Choice of law issues also arise when a tort or injurious event occurs in a Shariah jurisdiction but the litigation takes place in the U.S. If all of the evidence and witnesses are in the Shariah jurisdiction, given that the tort occurred there, the U.S. court would typically apply the law of the foreign jurisdiction.
The third avenue for Shariah to find its way into our courts is when courts must decide which forum or venue should host the litigation. This occurs in one of two ways. As in "choice of law" cases, this can occur because the parties agree to litigate in a Shariah jurisdiction. If the U.S. citizen learns of the oppressiveness of Shariah after the fact and asks the U.S. court to void that contract provision so the litigation may occur in the U.S. with our constitutional protections, most courts would deny that request and force the litigation to take place in the Shariah jurisdiction.
Choice of venue also occurs when the tort occurs in the Shariah jurisdiction. If the U.S. party does not want to litigate in the Shariah jurisdiction because it discriminates against non-Muslims and women, most courts would likely ignore these offensive aspects of Shariah and force the litigation to take place abroad.
We find cases of each of these examples applying Shariah de facto in our courts. For these reasons, states are well advised to pass a law like the one we developed at my law firm called the uniform draft American Laws for American Courts Act available online here with a 40-minute narrated PowerPoint presentation.
Gordon: Since 2008, you have been involved in a lawsuit in the Federal Eastern District Court in Michigan over Federal TARP funds used for the bailout of insurance giant AIG with regard to the latter's marketing and sale of Shariah compliant insurance products. What is the background of the AIG suit against the Federal government and its present status?
Yerushalmi: AIG, before its fall from grace, was the largest insurance company in the world. It might still be for that matter. It was a multinational corporation with the parent company domiciled in Delaware with its main headquarters in New York. Its subsidiaries, and there are hundreds, are located all over the world. In that capacity it was also the world's largest aggressive promoter of Shariah compliant insurance products in the world. These are insurance products that abide by Shariah, with Shariah authorities supervising them; deciding how and where the premiums will be invested; and where charitable contributions by the company, which are required under Shariah, would be directed.
AIG, not only sold these Shariah insurance products, but actually promoted them and Shariah simply.
As we all know, AIG then ran into the financial mess driven by its underwriting of financial insurance products such as credit default swaps for the real state subprime mortgage market. On the verge of its collapse the U.S. Government stepped in and took ownership and control of AIG. The federal government acquired 80% of AIG through both Federal Reserve and taxpayer TARP funds. Once it acquired 80% of the common stock ownership of AIG, the U.S. Government was effectively in the business of promoting Shariah.
So we filed suit on behalf of Kevin Murray, a former US Marine who served in Iraq, on the grounds that this was an Establishment Clause violation under the First Amendment. The status today is that we survived a motion to dismiss by the U.S. Government. We then engaged in a year's worth of very hard core discovery both of the government and of AIG. What we discovered was that the U.S. Government had transferred up to a billion of our taxpayer dollars to Shariah compliant insurance subsidiaries. We also found that the U.S. Treasury had actually promoted Shariah and the idea of a global unification of Shariah rules and regulations. Literally, the US government was intimately involved in the very concept of Shariah and Islamic legal jurisprudence.
We filed a motion for summary judgment in late Summer of this year essentially stating that based upon these undisputed facts there is no question that we win as a matter of law. The government filed a cross-motion for summary judgment and the court is now considering those motions. We anticipate a ruling soon. We believe that given the court's ruling on the motion to dismiss we have made our case and expect a ruling in our client's favor and against the government.
This case is important because it is the first time a federal court has considered Shariah-compliant finance and the danger posed by Shariah.
Gordon: The Center for Security Policy in mid-September issued a report, Team B II: Shariah - Threat to America. What were the principal findings?
Yerushalmi: The Team B II report was modeled after the "Team B" report during the Cold War era when the Administration put together a team of outside national security experts to prepare a "competitive" assessment of the national security threat posed by the Soviet nuclear program and gave the Team B access to classified information. The report "competed," as it were, with the government's establishment national security professionals
The Center for Security Policy Team B II Shariah Threat report is not based on classified information. Further, it was not set up by the Administration but rather operated as a kind of shadow assessment of the threat from Shariah. The principal findings are as follows.
First, the threat from Islamic terrorism, radical or extremist Islam, or "man-made disaster," whatever nomenclature the Administration places on it, is in fact all driven by the same doctrine, Shariah and its law of jihad.
Second, the "Team B" II report assesses Shariah as followed by the various global jihadist groups and finds that it is neither some perverted or extreme version of Shariah. It is extant authoritative Shariah with a pedigree derived from classical Shariah.
Third, and most important, the "Team B" II Report finds that there is a concerted conspiracy by the Muslim Brotherhood and by other groups similar to the Muslim Brotherhood to infiltrate and insinuate Shariah into our legal and financial systems through a variety of methods. These methods include 'lawfare', immigration, political lobbying and other forms of what we deem pre-violent jihad. By "pre-violent" we mean that it is based upon the Shariah doctrine that mandates violent jihad, but permits da'wa or social, political, economic and legal jihad based upon persuasion or stealth methods if violent jihad is not viable. However, the moment that violent or kinetic jihad is possible, Shariah obligates the full subjugation of the enemy, the infidel, through violence or the threat of violence. In effect, then, this stealth or pre-violent jihad is in accordance and very much a part of the violent jihad required by Shariah. That third finding is the most important of the "Team B" II Report.
Gordon: What has been the reaction of Members of Congress and the media to this report?
Yerushalmi: Neither positive nor negative. Remember, the Team B II report came out in the run-up to the last mid-term election. I just don't believe anyone has paid much attention to it.
Gordon: Do you anticipate attention might be paid to the Team B II report in the 112th Congress?
Yerushalmi: Yes. The Center for Security Policy is definitely going to engage the new Members of Congress once they have settled in. I believe that it will be the subject of serious Congressional inquiry, possibly including sub-committee hearings.
Gordon: Oklahoma voters recently passed an amendment to the State Constitution, Question 755 that would ban judges from recognizing Shariah rulings. The Federal Court in Oklahoma has accepted a motion for temporary restraining order by the Oklahoma Chapter of CAIR. The TRO was temporarily granted and a hearing held recently. What in your opinion are the problems associated with the Oklahoma law and what are the prospects for it being changed or remediated?
Yerushalmi: I don't think that there is much opportunity for change if it's held to be unconstitutional. They will just have to redo it. The problem with the amendment as it stands is that it imposes a blanket prohibition against courts using international law, which is not feasible or logical because some disputes might require the application of international or foreign laws as we discussed earlier. The problem is not foreign or international law per se, but the use of those laws when they are patently offensive to state and federal constitutional liberties and privileges. Further, the Oklahoma amendment does not define what Shariah is. It was left open to court interpretation, which is always dangerous. In fact, this "undefined Shariah" has opened the door to the CAIR lawsuit which effectively argues that Shariah is really nothing more than Islamic religious practice which of course it is not. While Shariah includes Islamic religious practices under its legal mandates, it is far closer to a legal, political and military system than it is a religious one.
What we would suggest is something that my law firm developed for our client, The Public Policy Alliance. As noted earlier, we drafted a uniform law called, "American Laws for American Courts" in which we define as void as against public policy and not recognizable by a state court any foreign law or religious law for that matter that would violate fundamental constitutional liberties and privileges. This facially neutral law would apply to Shariah because Shariah violates all sorts of constitutional liberties and privileges, not the least of which would be the free exercise of religion, equal protection and the due process clauses.
Thus a state may accomplish the same end without identifying Shariah per se and avoiding the stickly problems of our First Amendment jurisprudence. In the Oklahoma case, I still believe the state could have created a Constitutional amendment which targeted Shariah directly, but it would have to make it very clear that the provision was attacking a political, legal, military doctrine and system and not referring in any way, shape or form to some purely religious worship called Islam. So those are the problems that I see in terms of the Oklahoma Federal case that is now pending.
Having said that, I do think the Federal Court was wrong to accept standing. I don't believe the Court has standing and there are some Amicus briefs that have been filed on that question that properly address those issues. I think the court needs to take another look at the briefs filed by CAIR in support of a temporary restraining order. The court will find that it does not have standing because an individual cannot claim that he has been hurt just because an Amendment to the Constitution is passed if it doesn't apply to him. In this case it certainly doesn't apply to the plaintiff unless he is claiming that somehow he has some Shariah question pending in a court.
In truth, what the plaintiff has done is exploit the vagueness of the amendment by arguing that his personal religious worship is the same as Shariah.
Moreover, the plaintiff's specific claim is entirely bogus. He claims that the court would not probate his will since his will follows Islamic family law dictates. But this most certainly cannot grant standing to the court because if the plaintiff has a will that follows Shariah, the court will simply follow the specific instructions without even considering Shariah. But if the will instructs the court to probate his will by devising his estate according to Shariah, the court would not be able to do that anyway because no secular court may do so now under the Establishment Clause of the First Amendment. Courts cannot be in the business of trying to divine what Shariah is and what it says about inheritance because that would require an "entanglement" between the secular state and religion which is currently not permitted. Thus, irrespective of the problems inherent in the Oklahoma amendment, the case now pending before the court is bogus and should be thrown out.
Gordon: What states have successfully enacted anti-Shariah legislation and are they models for adoption elsewhere?
Yerushalmi: Only two states, Tennessee and Louisiana that I am aware of. They have adopted a version of our "American Laws for American Courts" model legislation. Tennessee's law was a valiant first effort but there were some amendments that reduced the scope of the model law in ways that I believe need to be corrected. For example, Louisiana endeavored to push through our uniform draft law but the final bill added a provision that excludes from its application any kind of corporate entity. That effectively limits the Louisiana version applicable almost entirely to domestic law cases or contract or tort cases only between two natural persons. That provision in the Louisiana law doesn't address legitimate kinds of cases that the law should preclude from entering into domestic courts. Both of those states in my view should go back and try to correct those versions. However, they at least made an effort and effectively passed a version of the model law. It was an important start and I applaud them and the legislative sponsors.
There are many states currently considering the uniform model law. There are probably a half a dozen other states currently considering the legislation.
Gordon: There is a booming Shariah-compliant international corporate finance market that grew dramatically during the last several years. We have also seen evidence of Shariah-compliant finance and banking in several states in the U.S. How widespread is that development and is it in violation of existing state and federal anti-discriminatory banking legislation?
Yerushalmi: Well it wouldn't be a violation of anti-discrimination laws because anybody could obtain a Shariah-compliant mortgage or invest in a Shariah-compliant fund. That is not the problem. The problem is when a security is sold in the public markets with a prospectus issued by a corporate structure of a public company and the sponsors of the public offering don't properly disclose what Shariah is. How does a company sell a security without disclosing to the post 9-11 investor that this law seeks our destruction? I believe the failure to disclose this material fact would violate securities market disclosure laws that are on the books today. Unfortunately, the SEC and the Department of Justice are in bed with the Islamists.
Now in terms of its pervasiveness, almost every major international bank engages in Shariah-compliant finance in some markets. That is to say, they sell Shariah-compliant products. Dow Jones and Standard & Poor's have developed Shariah-compliant investment indexes. In terms of state level banking, there are a few regional and state banks that offer Shariah-compliant mortgage products. That is probably less of an issue than the international banks like HSBC, Citibank, JP Morgan Chase, all of which promote their Shariah-compliant financial products worldwide.
Gordon: Do you see any basis for developing state level legislation that would contend with Shariah-compliant finance issues?
Yerushalmi: Yes. Our client, The Public Policy Alliance has retained us to address this problem and we have completed a model amendment to the 2002 Uniform Securities Act, the model "blue sky laws" applicable at the state level. Almost every state has already passed some version of the Uniform Securities Act which parallels the federal regulatory structure for securities. Our amendment makes very clear that any bank or financial institution that offers a security in a particular state bound by a foreign legal system, which would include Shariah, whose laws violate state and federal constitutions is under a requirement to disclose all of the relevant facts about those offending provisions of that foreign law. You could still buy that security with the knowledge that it is governed by a foreign law, but you would be doing so fully apprised of its offending provisions. I would dare say that this kind of disclosure would effectively kill a Shariah-compliant security offering in this country.
Gordon: There have been a number of controversial mega mosque projects that have erupted throughout these United States. What is your view as to how local opposition can block development of Shariah-compliant mosques in this country?
Yerushalmi: I don't think you can oppose the mosques, other than on the basis of zoning issues. I don't think you will effectively block mosques and I don't think that is necessarily the right way to deal with the problem - at least in the courts. I don't think that you will ever engender real support legally for the idea that you can block a mosque even if some of its founders or its directors were Shariah-compliant. I think what you have to do is get at the underlying problem which is effectively outlawing Shariah in the United States.
We also have developed a legislative proposal for the Public Policy Alliance for doing just that at the State and at Federal levels. That is a harder nut to crack because of First Amendment jurisprudence but I do believe it can be done. The Ground Zero Mosque in Lower Manhattan, the mosque in Murfreesboro, Tennessee and the mosque in Temecula, California, have engendered a lot of opposition by local grass roots activists for very good reasons. I just don't think that this is a courtroom battle that can be won on those terms.
Gordon: David, I want to thank you for this comprehensive and thorough going discussion. We wish you the best of luck in all of your litigation and legislative development efforts. Let us hope that your efforts will result in pushback against the infiltration of Shariah Islamic law in these United States.
Yerushalmi: Thank you, Jerry.