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Judge rejects Padilla's "defensive jihad" theory

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By Michelle Malkin  •  August 10, 2007 10:01 AM

Striking a small blow against sharia creep, the judge in the Jose Padilla/Abdulla al Mujahir trial ruled that Padilla/al Mujahir’s lawyers can’t play the “defensive jihad” card:

Jurors who will soon debate the guilt or innocence of Jose Padilla and two other men on terrorism support charges cannot consider whether their actions were justified by Islamic law, a federal judge ruled Thursday.

U.S. District Judge Marcia Cooke agreed to a request from prosecutors to instruct the jurors that each of the men can be convicted even if they “may have believed that the conduct was religiously, politically or morally required, or that ultimate good would result.”

Jurors are expected to begin deliberations after closing statements Monday and Tuesday. Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi are charged with being part of a North American support cell that provided finances, supplies and recruits to al-Qaida and other Islamic extremist groups.

A cornerstone of the defense during the nearly three-month trial was the idea that Islamic teaching provides for legitimate “defensive jihad,” which differs from terrorism because it is meant to counter aggression against Muslims and does not threaten innocent people.

But Hassoun attorney Ken Swartz said his closing argument will not focus on whether violent actions might have been justified. Swartz said he plans to emphasize that any money or supplies provided to overseas groups was meant for humanitarian assistance.

“It’s all about relief,” Swartz said. “That is not giving aid for military purposes.”

Robert Spencer sheds some light on the defensive/offensive jihad model:

Islamic law, jihad warfare may be defensive or offensive. Jihad is ordinarily fard kifaya – an obligation on the Muslim community as a whole, from which some are freed if others take it up. Jihad becomes fard ayn, or obligatory on every individual Muslim to aid in any way he can, if a Muslim land is attacked. That is what jihadists argue today – that the American presence in Iraq and Afghanistan makes jihad fard ayn, or obligatory on every individual Muslims.

But still, that is just jihad for the defense of Muslim lands. There is also offensive jihad, in line with Muhammad’s command that Muslims offer non-Muslims conversion to Islam, subjugation as inferiors under Islamic rule, or war. But in Islamic law, only the caliph is authorized to wage offensive jihad.

That’s a primary reason why jihadists want to restore the caliphate. Some would even say that they’ve already done so. In 1996 the Taliban’s Mullah Omar went to the shrine of the Respectable Cloak of Muhammad in Kandahar and stood on the roof of the shrine wrapped in the cloak. His followers proclaimed him Emir al Momineen, or leader of the believers – a title of the caliph. So far, however, only a jihadist group in Algeria has joined the Taliban in accepting Mullah Omar as caliph.

In any case, the desire to restore the caliphate ultimately highlights the expansionist, imperialist, totalitarian, globalist aims of the jihad movement, even as today it presents itself as a defensive action against Western evils. This is, I believe, a crucial point for our understanding the enemy properly, so that we can formulate the proper defensive responses. If we don’t understand what we’re up against correctly, we will not defend ourselves properly against it. And that is, unfortunately, in many ways the fix we’re in today.

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