Michelle Malkin » Judge rejects Padilla’s “defensive jihad” theory

Judge rejects Padilla’s “defensive jihad” theory

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.

~ For the latest breaking news, be sure to join Michelle's e-mail list ~

Posted in: Jose Padilla

Printer Friendly

comments (10)

See what others have said

Note from Michelle: This section is for comments from michellemalkin.com's community of registered readers. Please don't assume that I agree with or endorse any particular comment just because I let it stand. A reminder: Anyone who fails to comply with my terms of use may lose his or her posting privilege.

Comments

#1

On August 10th, 2007 at 11:22 am, walterc said:

Finally a judge that gets it.
#2

On August 10th, 2007 at 11:25 am, geminicontender said:

Spencer is correct. Their laws belong in the Middle East. You come here, you follow our rules regardless of religion or politics. Finally a judge who isn’t an activist, just a judge supporting the ideals in our Constitution.
#3

On August 10th, 2007 at 11:33 am, taylork said:

Don’t worry, I’m sure the ACLU will help him appeal, citing that the judge violated Padilla’s civil rights in deciding that Islamic law can’t be a deciding factor in a jury’s decision
#4

On August 10th, 2007 at 12:04 pm, wherestherum said:

When did trying to overthrow your own country by supporting terrorism stop being considered treason?
#5

On August 10th, 2007 at 1:11 pm, swj719AWG said:

Some time in the 70′s, actually

See: Hanoi Jane
#6

On August 10th, 2007 at 1:12 pm, ThackerAgency said:

This is where we are going to have Constitutional issues. Freedom of Religion will conflict with human rights and standing laws.

What is going to happen when a ‘hate crime’ against Jews or gay people is committed by a Muslim and the ‘freedom of religion’ defense is used. They may argue that it is a part of their religion to oppress Jews and Gay people who are offensive to their religious beliefs.

Are Rastafarians able to smoke marijuana in their religious ceremonies even though it is against the law?

There are all these muslim apologists downplaying the things that our society is doing to accomodate them (foot baths, no cabs servicing people carrying alcohol, cashiers not ringing up pork, etc, etc, etc).

At some point their religious freedoms will conflict with everyone else’s human rights and freedoms. Something is going to have to give. I’m saying that ‘freedom of religion’ will have to be redefined eventually. The left will talk about ‘civil liberties’, but it all boils down to human rights.

I would love to be a Constitutional lawyer. All of these conflicts are extremely interesting to me. But I can’t stand lawyers.
#7

On August 10th, 2007 at 9:16 pm, jimC said:

In what world did they imagine that it would matter whether or not Islamic law dictated that they do it? America is not governed by Islamic law. To me, this decision seems like a no brainer.

Jim C
#8

On August 10th, 2007 at 9:19 pm, jimC said:

Thackeragency,

Yes, we have freedom of religion. But all of our rights only go so far. Once they start infringing on others rights, that’s where they end. That’s why one cannot yell fire in a crowded theater and claim the right to free speech.

Jim C
#9

On August 11th, 2007 at 1:09 am, palani said:

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.

Of course, no non-muslim is “innocent”.
#10

On August 16th, 2007 at 2:08 pm, zyzzyg said:

“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.”

If this issue was raised or alluded to during the trial the prosecutor should have objected to it on the spot.

Waiting to make this point the prosecutor is dancing a little too close to the fire.