As Americans debate what measures to take to prevent jihadist attacks, we need to remember that this is not the first time we’ve had to balance the interests of liberty with those of security.
There are many examples of how the United States handled this tension in the post-war fight over how to deal with the Communist threat. Writing in these pages, Roger L. Simon says that the “Communist Party was made illegal in the United States,” and correctly notes that sharia-based Islam is as bad or worse than the internal Communist threat in the 50s.
Actually, the American Communist Party was a legal political party, and never was made illegal. The McCarran Internal Security Act passed by Congress required Communist groups and fronts to register with the government, and it established a Subversive Activities Control Board (SACB) to investigate those suspected of being members. It also prevented them from entering or leaving the country. The Supreme Court ruled in a 1965 decision that the act violated an individual’s Fifth Amendment right to not incriminate oneself.
The U.S. was already prosecuting top Communist leaders under the Smith Act, which made it a federal crime to “teach and advocate” to overthrow of the U.S. government by force and violence. The U.S. argued that the doctrine of Marxism-Leninism, which the defendants adhered to, expressed such a view. Defendants argued this had long been modified, and that they were being tried for their ideas. The CP leaders were jailed, but eventually the act was whittled down by the Supreme Court, and the prosecutions ended. In a 1957 decision, the Supreme Court ruled that Communists could only be prosecuted for their actions, not their ideas.
These decisions stand, and were the U.S. to institute similar programs to try to stop jihadists, they would immediately be ended by lower courts. But immigration officials could do much more than hand out a questionnaire that asks such things as “Have you been a member of or cooperated with any group planning violence against the United States?” Agents have to be trained (like the Israelis) to engage in lengthy conversations that can ferret out potential threats’ real ideas and values.
Today, we have gone from the Obama administration’s refusal to acknowledge the threat as Islamic radicalism or even to utter its name, to Donald Trump’s call to ban all Muslims from entering the United States.
The answer to what the U.S. should do is laid out by Daniel Pipes. Finding Trump’s call unconstitutional, unacceptable, and unworkable, he argues that we must:
Replace the “Muslims entering the United States” in Trump’s formulation with “Islamists entering the United States”…those Muslims who seek to apply Islamic law, oppress women and non-Muslims, and establish a worldwide caliphate…they, not Muslims in general, are the barbarians who “believe only in Jihad.”
The majority of Americans realize that the measures already taken have not worked, but they do not want to adopt Trump’s solution. So what to do?
It was not difficult for Tashfeen Malik to enter the United States on a fiancée visa. She evidently sailed through the questions asked of her by U.S. representatives. As an adherent of Islamic sharia law, she would have felt justified in using the doctrine of taqiyya — deception — to gain entry. And we may soon be looking at more of these situations. As FBI director James Comey told the Senate Intelligence Committee, they are investigating the possibility that ISIS has gone into the business of arranging jihadist marriages, in which individuals who have pledged to serve ISIS arrive in a Western country ready to attack. If this turns out to be the case, it amounts to building a network of sleeper cells that remain undetected.
The authorities were obviously looking in the wrong place when they investigated Tashfeen Malik. On Sunday, the New York Times reports that she “talked openly on social media about her views on violent jihad.” Immigration officials, evidently, were ordered not to look at these sites and at present, the Department of Homeland Security is debating “whether even it is appropriate to do so.” Currently, they only do that kind of screening for people already on the watch list. It is obvious that the social media sites of people applying to live here have to be thoroughly examined before they are let in.
Once Muslim immigrants are in the country, finding out what they are doing depends upon moderate Americanized Muslims reporting those they have suspicions about to the FBI or police. According to the FBI, many attacks have been prevented in this way.
Laws singling out Muslims alone as belonging to suspicious group will serve only to alienate those who do consider themselves part of the American community. So far, compared to Europe, we have been successful in assimilating Muslims who by and large think of themselves as Americans. The hope, as the editors of Tablet Magazine put it, is that Muslims gain the same opportunity to prosper in the United States as former immigrants have. Writing that America must remain “a country of refuge,” they add, however, that “potential immigrants, of any ethnicity, should continue to be vetted for anti-American sympathies.” As we know, however, in our time, this means Muslims immigrants will have to bear careful scrutiny.
Even the liberal/left The Daily Beast writer Michael Tomasky argues that the challenge to Muslim Americans is that they understand “that the rights you have as Americans have to be earned, fought for. And you know, that’s OK, because every ethnic and religious group outside the Pilgrims has had to do that earning and fighting.” He adds that “if other Americans had some sense that Muslim Americans as a group were really working to ferret out the radicalism, then this stalemate might be broken.”
There are Muslim patriots in the United States. An American Muslim Naval officer had a powerful op-ed in the New York Times. Haider Ali Hussein Mullick writes that as a Naval Reserve officer, he has taken an oath to “defend the American Constitution against all its enemies, foreign and domestic.” He writes that he has trained Navy seals, and that his mentors include the former head of the NRA, the supreme Allied commander of NATO, and the commanding general of the U.S. war in Afghanistan. No one in his right mind needs to investigate him; he clearly follows our Constitution and not sharia law. He argues that to attack all members of the Muslim faith will “play into the hands of Islamic State propaganda that America is at war with Islam.” He wants to separate “law-abiding patriotic American Muslims by working with the moderates.”
If Mullick is right when he says that American “Muslims also uphold the rule of law, and respect the separation of mosque and state and they are in fact the greatest bulwark against Islamic extremism,” ferreting out the Islamists in their ranks should not be too difficult. Mullick uses Minneapolis as an example, where he writes that cooperation with the FBI by the Muslim community has so far successfully worked to avoid attacks by Somali Americans who are inspired by al-Shabaab, another Islamist radical group.
We must encourage more Muslims like Mullick to make public their opposition to radical Islam and sharia law, and not to engage in practices that will work to dissuade them from speaking up.
If what Mullick writes is true, the mainstream Muslim community will not oppose any new U.S. government measures instituted to find the Muslim extremist cells in our midst before radical Islamists undertake another attack like the one that occurred in San Bernardino. That will also serve to prove to most American citizens that they do not have to be singled out for their religion. But to have their trust and cooperation, it certainly is not helpful to ban all Muslims from entering the country.