Criminal Justice News and VIews

Interesting items related to criminal justice

My Photo
Location: Scottsdale, Arizona, United States

I love teaching and sharing knowledge. The Internet is a free passage to an amazing amount of knowledge provided by some of the greatest minds of the day. MIT, Oxford and other universities are now sharing lecture notes with the public and allowing us to dip into the overflowing fonts of wisdom that abound. Yale is but one university that has put actual lectures on the web.

Monday, August 14, 2006

According to Judge Jihad attacks are legal in Iraq

August 14, 2006


Wall Street Journal Front page

A Loophole Emerges
In Yemeni Campaign
Against Extremists

A Judge Sympathetic to U.S.
Frees 19 of Its Enemies;
Islamic Law Allows Jihad
August 14, 2006; Page A1

SANA, Yemen -- The U.S. has spent millions of dollars in Yemen to help the government crack down on Islamic extremists who want to wage violent jihad against nonbelievers.

There is just one problem with the strategy: It is not clear that jihad is illegal in Yemen.

Last month a Yemeni judge, sitting on the state's special terrorism court, ruled that 19 defendants who had traveled to Iraq to kill American soldiers and fight alongside al Qaeda there had done nothing wrong. The defendants -- 14 Yemenis and five Saudis who had been caught with guns and fake Iraqi passports -- made no attempt to deny their connection to al Qaeda in Iraq. They openly praised Osama bin Laden, and bore wounds from fighting American and Iraqi troops.

Yet Judge Mohammed al-Baadani, a 40-year-old jurist with family in the U.S. and a history of handing out prison sentences to al Qaeda fighters plotting attacks in Yemen, acquitted the defendants.

His argument: "Islamic Sharia law permits jihad against occupiers" of Muslim lands.

The judge's ruling prompted an immediate appeal from Yemeni prosecutors, and it outraged senior officials at the U.S. Embassy here. "I personally raised the issue with the President of the Republic and the Ministry of the Interior," says Nabeel Khoury, the deputy chief of mission at the U.S. Embassy.

Yet Judge al-Baadani says that he couldn't have ruled any differently. Yemeni law -- a mixture of British colonial law, local ordinances and Islamic Sharia law -- is murky on the subject of when it is permissible for Yemenis to take up arms with fellow Muslims. The country also has a long history of allowing its young men to go off to fight alongside fellow Muslims battling foreign forces in places like Afghanistan, Bosnia and Chechnya. For many Yemenis, jihad against foreign occupiers is an Islamic duty.

Even prosecutors didn't charge the 19 men with any crimes related to their Iraq activities. Instead, they were charged with plotting attacks against a Western hotel in Aden and other more nebulous "Western targets."

"The prosecution showed no evidence of this plot," Judge al-Baadani says.

The controversial ruling highlights the challenge the U.S. faces in the Arab world when it comes to stanching the flow of violent jihadists into Iraq, Afghanistan and now Lebanon. An internal study, prepared by the U.S. Central Command, which oversees U.S. troops in the Middle East, estimates that about 130 foreign fighters cross into Iraq each month. Though small in number, these fighters account for some of the most horrific and divisive attacks, military officials say.

In an interview, Judge al-Baadani says he has no doubt that the 19 men he acquitted were dangerous and misguided. During the trial he scolded them for sneaking off to Iraq without the approval of the president or their parents. But, he says, no laws prohibit Yemenis from fighting Western forces in Iraq. If such laws were enacted or enforced by the courts, they would only drive more Muslims to al Qaeda, he argues. By contrast, he says that under Yemeni and Sharia law it is against the law to attack U.S. or Western targets outside of occupied lands. That reading would make last week's foiled attacks on commercial airliners flying out of London illegal.

Like most Yemeni men, the judge was dressed in a long white robe and carried a long curved dagger, called a Jambiya, which dangled from an ornately decorated belt. Outside his window a dozen Yemeni soldiers armed with AK-47 rifles and Russian-made machine guns stood guard on the roof of an adjacent building, protecting him from terrorist attack.

In addition to drawing an angry response from the U.S. Embassy, the ruling also provoked stiff criticism from the judge's family members in the U.S., Judge al-Baadani says. His nephew, who runs a small business that supplies snack foods to delis in San Francisco, phoned him as soon as he learned of the verdict.

"I thought that since the government was friendly now to America and against terrorism that they would at least get some jail time," Adnan al-Ameri, the judge's 33-year-old nephew, says he told his uncle. Although he opposes the Iraq war, Mr. al-Ameri says calls for violent jihad there are damaging and perverting Islam. Other phone calls followed from friends and relatives in Michigan and the U.K.

Judge al-Baadani says he told his nephew that his decision disappointed radicals who wanted to use the case to make martyrs of the accused and to foment hatred against the U.S. And he promised him that it would benefit the U.S. in the long run. "Throwing those men in jail would get rid of 19 bad people, but it would make enemies out of 19 million Yemenis. Which one would America choose?" he asks.

Since the Sept. 11 terrorist attacks, Yemen has by most measures been one of the U.S.'s stronger Arab allies in the war on terror -- though its record has been marred somewhat of late by a series of embarrassing jail breaks by convicted al Qaeda fighters. In 2002, the Yemeni government signed off on an attack in which a missile fired by an unmanned CIA plane incinerated a suspected al Qaeda militant in northern Yemen. To bolster Yemen's security forces, the U.S. is spending about $8 million a year to help Yemen build a coast guard and an elite counterterrorism force.

Even Judge al-Baadani's court, established to handle high-profile terrorism cases, is a sign that Yemen wants to stamp out al Qaeda extremists within its borders. Unlike other criminal courts in Yemen, defendants aren't allowed to see sensitive evidence against them that might compromise Western or Yemeni intelligence sources. Judge al-Baadani boasts that in April he handed out five- to seven-year sentences to a cell of 14 men caught with explosives and accused of plotting attacks on U.S. targets in Yemen.

The court has also jailed several conspirators in the 2000 attack on the U.S. destroyer Cole, which killed 17 U.S. sailors, and the bombing of a French oil tanker. More recently two teenagers accused of plotting to assassinate the former U.S. ambassador to the country were sentenced to prison terms.

All those attacks were aimed at Western targets in Yemen, a country that is not currently being occupied by non-Islamic forces and where the Islamic principle of jihad doesn't apply, Judge al-Baadani says.

In the cases of Yemenis fighting in Iraq and Afghanistan, the judge ruled that the centuries-old principle of jihad is the law. Jihad, which can refer to a Muslim's personal struggle against evil, is more typically used to describe the Islamic obligation to fight nonbelievers encroaching on Muslim lands.

"It's a very tricky concept," says Mr. Khoury. "It is a part of the dogma and one cannot just deny its legitimacy."

But he says debate over its role in the modern state must be confined to mosques and universities. "States... must clarify to citizens what constitutes the legitimate use of force and what doesn't," he says. In other words, Yemen simply can't allow its citizens to take up arms whenever and against whomever they want.

When he delivered his verdict, Judge al-Baadani argued that resisting occupiers was a part of every religion. "Millions of people believe in this duty whether they are Muslim, Jew or Christian," he argued.

He says he has been "shocked" by the criticism of the verdict not just from the embassy, but from his family in the U.S.

Of late, he says he has been trying to think about the case from the perspective of his American relatives and the U.S. legal system. "According to American law, isn't it OK to fight with people of your own religion against the occupiers?" he asks. "I'd like to visit America to see how the U.S. handles this issue."

Write to Greg Jaffe at greg.jaffe@wsj.com1

URL for this article:

Hyperlinks in this Article:

Copyright 2006 Dow Jones & Company, Inc. All Rights Reserved