Islamic Investigations Issues(Task #584)
21 November 2003
1.PURPOSE: To identify investigative considerations involving Muslim subjects, witnesses, interpreters, or investigators.
2.BACKGROUND: The political and ideological aspects of Islam present a unique set of analytical and investigative challenges for intelligence and law enforcement. Intelligence operations and law enforcement investigations requiring the cooperation of Muslims will encounter theological, legal, and cultural obstacles. The source of this conflict is the difference between two cultures. The Western culture recognizes the separation between Church and State; Islam does not. When a Muslim is called upon by a Non-Islamic government to participate in an investigation against other Muslims, he is being called upon to betray his values.
3.DISCUSSION:
a.Islamic Law. Islamic law is comprised of the Koran[1], the Hadiths, Consensus[2] and reasoning by analogy. Within the Sunni tradition, a primary legal reference is Ahmad ibn Naqib al-Misri's Reliance of the Traveller: A Classic Manual of Islamic Sacred Law. These sources provide specific guidance on issues adversely affecting intelligence operations and law enforcement investigation (herein after called: investigations).
b.Disassociation with Non-Muslims. A recurring and heavily emphasized theme in the Koran, the Hadiths and in Islamic Law is the prohibition against close association with Non-Muslims. There are grave legal and religious repercussions for the Muslim allying himself with Non-Muslims against Muslims (Tab A: Disassociation). In so far as possible, Muslims are discouraged from interacting with Non-Muslims. Obvious exceptions include employment but outside of those few exceptions, Islam encourages disassociation. Forsaking fellow Muslims in favor of Non-Muslims is an act of un-belief, nearly equating with apostasy having three profound consequences for the offending Muslim: loss of spiritual salvation, social isolation, and exposure to the risk of a death sentence (Tab B: Apostasy).
c.Investigative Considerations.
(1)Non-Muslim. For the Non-Muslim investigator, investigations are secular inquires aimed at finding the truth of the matter. Investigative phases include the questioning of witnesses and subjects, interpretation of the interviews and evidence, drawing conclusions concerning culpability, and the referral of the investigation for subsequent state action. Specifically, the investigator asks about the actions of another, solicits incriminating evidence, tries to expose secrets, and carefully reviews testimony for evidence of deception, lies and other misleading statements. Government works to protect the public interest.
(2)Muslim. For the Muslim investigator, investigations have religious as well as legal implications. There are three basic scenarios:
- Muslim investigator working for Muslim government. No conflict precluding the full and faithful discharge of his investigative responsibilities.
- Muslim investigator working for Non-Muslim government against Non-Muslim subject. No conflict precluding the full and faithful discharge of his investigative
duties.
- Muslim investigator working for Non-Muslim government against fellow Muslims. While government is working to protect the public, the Muslim investigator has a conflicting, additional duty to protect his fellow Muslim from Non-Muslims. Conflict arises because the investigative process requires that he violate the following legal and religious tenants of Islam: asking about another's mistakes (spying)[3]; preservation of secrets[4], avoidance of slander[5]. To cope with this cognitive dissonance, Islam itself provides two strategies: deception and lying[6], and giving a misleading impression[7].
(a)Asking About Another's Mistakes: Spying. Interviews and interrogations solicit information pertaining to the actions and mistakes of another. While the purpose of an investigation is to find the truth of the matter, it characteristically advances the interests the government at the expense of the subject (suspect) of the investigation. Muslims, investigating other Muslims on behalf of Non-Muslim governments, are placed in the position of asking about another's mistakes and this process is also defined in Islam as "Spying"; another prohibited practice (Tab C: Asking About Another's Mistakes). Again, a Non-Muslim government is placing a religiously committed person in the position of undermining the tenants of his faith in the pursuit of goals adverse to his religious (and legal) beliefs. Depending on the circumstances, the Muslim investigator may be forced to find recourse in declining the assignment, soft peddling adversarial phases of the investigation involving fellow Muslims, or soft peddling the final report.
(b)Secrets.The very object of investigations involving Islamic subjects involves the struggle to preserve secrets. Islamic law provides guidance on this topic (Tab D: Secrets). In an all-Muslim setting, it is best to keep secrets unless the rights of a fellow Muslim are being violated. In that case, it is recommended to reveal the secret. Employment by a Non-Muslim government of a Muslim investigator to investigate other Muslims places the investigator in the position of violating the tenants of his beliefs and may force his recourse to deception, lying and/or the giving of misleading impressions.
(c)Slander. Slander, in the Western context, is the utterance of false charges or misrepresentations which defame and damage another's reputation. Within the Sunni Islam tradition, slander means mentioning anything concerning a person that that person would dislike (Tab E: Slander). Depending on the circumstances, assigning a Muslim interviewer to seek the truth about another Muslim may be the moral and legal equivalent of soliciting slander. A Muslim soliciting slander against another Muslim for the benefit of Non-Believers is a betrayal of Islamic values. Again, the Muslim investigator is placed in an ethical quandary.
(d)Deception and Lying. A Muslim has a positive duty to protect his fellow Muslims from unbelievers and he is permitted to lie in their defense (Tab F: Deception and Lying). In practice, non-Muslim investigators should anticipate that inquiries to Muslims about Muslim subjects may encounter deceptive responses including lying. If the investigator is a Muslim and the interviewed person is a Muslim, the investigator may be confronted with a situation where the investigator is being asked to "betray" a fellow Muslim to unbelievers. This is impermissible and the Muslim investigator, if he cannot disassociate himself from the investigation, may have to resort to the religious and legal recourse of lying. This behavior will likely manifest itself in flawed reporting, uneven case development, faulty translations, or poor quality control practices in case reviews.
(e)Giving a Misleading Impression Giving a misleading impression is a preferable alternative to lying (Tab G: Giving a Misleading Impression). Muslims giving testimony or conducting investigations against other Muslims for the benefit of a non-Muslim entity are placed in a delicate position of balancing the interests of a Non-Islamic government against the interests of the Islamic Community. Depending on the circumstances, the doctrine of Misleading Impressions affords Muslim interviewees and investigators an ethical "out" in their reporting. Flawed translation services experienced in Guantanamo may stem from this phenomenon.
4.SUMMARY: The employment of Muslim analysts, investigators and translators against other Muslims creates identifiable, recognizable and easily avoided conflict of interest situations. Within Islam there is no separation of Church and State and employing a Muslim in a direct role in investigations where other Muslims are the focus of the investigative effort invites conflict. Recent examples of a Muslim FBI agent and other Muslim law enforcement personnel declining to investigate their fellow Muslim, the flawed translation process in Guantanamo, and the controversy surrounding an Army Muslim Chaplain and his relationship with Muslim detainees in Guantanamo are very probably concrete expressions of conscientious decisions rooted in a clearly articulated religious and legal doctrine.
4.POC: Mr. William Gawthrop, SAIC Forward Analytical Element, U.S. National Intelligence Cell, Sarajevo, APO AE 09780;Commercial 387.33.626-827; email .
DRV FM: Multiple Sources
DECL: X1
DOI: 14 November 2003
Tab A: (Disassociation) to Islamic Investigations Issues
1.Do not obey unbelievers (Koran)
Sura 3:149 O you who believe! If you obey those who disbelieve, they will send you back on your heels and you will turn back (from Faith) as losers.
Sura 33:48 And obey not the disbelievers and the hypocrites, and harm them not (in revenge for their harming you till you are ordered).
2.Do not take for friends or helpers (Koran)
Sura 3:28 Let not the believers take disbelievers as Auliya (protectors or helpers or friends) instead of the believers, and whoever does that will never be helped by Allah in anyway, except if you fear a danger from them. And Allah warns you against Himself (His punishment), and to Allah is the final return.
Sura 4:139 Those who take disbelievers for Auliya (protectors or helpers or friends) instead of believers, do they seek honour, power and glory with them? Verily, then to Allah belongs all honour, power and glory.
Sura 4: 144 O you who believe! Take not as Auliya (protectors or helpers or friends) disbelievers instead of believers. Do you wish to offer Allah a manifest proof against yourselves?
Sura 5:57 O you who believe! Take not as Auliya (protectors and helpers) those who take your religion as a mockery and fun from among those who received the Scripture (Jews and Christians) before you, and nor from among the disbelievers; and fear Allah if you indeed are true believers.
Sura 9:23 O you who believe! Take not as Auliya (supporters and helpers) your fathers and your brothers if the prefer disbelief to Belief. And whoever of your does so, then he is one of the Zalimun (Wrongdoers)
Sura 9:29 Fight against those who (1) believe not in Allah, (2) nor in the Last Day, (3) nor forbid that which has been forbidden by Allah and His Messenger (Muhammad) (4) and those who acknowledge not the religion of truth (Islam) among the people of the Scripture (Jews and Christians) until the pay the Jizyah with willing submission, and feel themselves subdued.
Sura 60:1 O you who believe! Take not My enemies and your enemies (i.e. disbelievers and polytheists) as friends showing then affection towards them, while they have disbelieved in what has come to you of the truth (i.e. Islamic Monotheism, the Qu'ran, and Muhammad), and have driven out the Messenger (Muhammad) and yourselves (from your homeland) because you believe in Allah your Lord! If you have come forth to strive in My Cause and to seek My Good Pleasure, (then take not these disbelievers and polytheists, as your friends). You show friendship to then in secret, while I am All-Aware of what you conceal and what you reveal. And whosoever of you (Muslims) does that, then he has gone (far) astray from the Straight Path
Tab A: (Disassociation) to Islamic Investigations Issues
Sura 60:2 Should they gain the upper hand over you, they would behave to you as enemies, and stretch forth their hands and the tongues against you with evil, and they desire that you should disbelieve.
Sura 60:3 Neither your relatives nor your children will benefit you on the Day of Resurrection (against Allah). He will judge between you. And Allah is the All-Seer of what you do.
Sura 60:13 O you who believe! Take not as friends the people who incurred the Wrath of Allah . Surely, they have despaired of (receiving any good in) the Hereafter, just as the disbelievers have despaired of those (buried) in graves (that they will not be resurrected on the Day of Resurrection)
Tab B: (Apostasy) to Islamic Investigations Issues
KORAN:
Sura 47:25. Verily, those who have turned back (have apostatized) as disbelievers after the guidance has been manifested to the - Shaitan (Satan) has beautified for the (their false hopes) and Allah prolonged their term (age).
'UMDAT AL-SAQLIK (The Reliance of The Traveler) , a reference in Shafi'i jurisprudence.
Book O, Justice, Section o8.1: When a person who has reached puberty and is sane voluntarily apostasies from Islam, he deserves to be killed.
Section o8.2: In such a case, it is obligatory for the caliph (or his representative) to ask him to repent and return to Islam. If he does, it is accepted from him, but if he refuses, he is immediately killed.
Section o8.2: If he is a freeman, no one may besides the caliph or his representative may kill him. If someone else kills him, the killer is disciplined (See o17.) (The disciplinary action is not for the killing but for arrogating the caliph's prerogative and encroaching upon his rights, as this is one of his duties.)
Section o8.4: There is no indemnity for killing an apostate.
Book F, The Prayer, Section f1.3: Someone raised among Muslims who denies the obligations of the prayer, zakat, fasting Ramadan, the pilgrimage, or the unlawfulness of wine and adultery, or denies something else upon which there is scholarly consensus and which is necessarily known as being of the religion thereby becomes an unbeliever and is executed for his unbelief.
Vol 9:50, The Hadith of "Sahih Al-Bukhari"
Mohammed said, "Whoever changes his (Islamic) religion, kill him."
Tab C: (Asking About Another's Mistakes) to Islamic Investigations Issues
It is forbidden to ask about another's errors and blunders in order to tell them they have made a mistake or to embarrass them, being unlawful because it entails injury to another and belittling him in front of people. But when one's asking about mistakes is to learn or teach, or to test or sharpen student's minds or make them reflect, then it is recommended and desirable, because it facilitates the comprehension of religious knowledge.[8]
Asking about and searching out the faults of others is spying, which Allah Most High has forbidden by saying: "Do not spy" (Sura 49:12), meaning to look for the shameful points of Muslims. The Prophet ... said
(1) "If you search for people's shameful points, you corrupt them..."
(2) "O you who have entered Islam with your tongues but whose hearts faith has not entered: do not slander people, and do not ferret out people's shameful points. Whoever searches out the shameful points of his brother, Allah will search out his own shameful points, be sure that He will disgrace him even if he should remain in the middle of his house."[9]
Tab D: (Secrets) to Islamic Investigations Issues
"Mohammed said: "When a man says something. Then glances left or right, his words are a confidence to be kept.""Telling a secret means to inform others of a remark, action, or state which one learns of from someone who wants to remain hidden, whether it be good or bad. This is hurting him, and hurting others is unlawful " [10]
"When two people meet, it is obligatory to keep secret any act that occurs, any word spoken, or any state attributable to someone, when these concern something one would normally wish to remain confidential, while not being unlawful."[11]
"If it is against Allah Most High alone and does not involve legal measures such as prescribed legal penalties or disciplinary action, then it must be kept secret.[12]
"If it involves legal measure, as do fornication and drinking, then one has a choice between revealing it or not, though it is superior to conceal it.[13]
"If it involves another person's rights, then if concealing it entails harm to anyone, or if it concerns prescribed legal measures such as retaliation for an injury or death, or covering the cost of an article destroyed through negligence, then if the person whose rights have been infringed is ignorant of it, one is obliged to make the matter known, and must testify to it if asked to.[14]
"If it involves another's rights, but concealing it does not entail harm to anyone and it does not concern prescribed legal measures, or it entails one of these two, but the person concerned already knows of it thought another and one has not been asked to testify about it, then one is obliged to conceal the matter.[15]
Tab E: (Slander) to Islamic Investigations Issues
"Slander means to mention anything concerning a person that he would dislike, whether about his body, religion, everyday life, self, disposition, property, son, father, wife, servant, turban, garment, gait, movements, smiling, dissolution, frowning, cheerfulness, or anything else connected with him."[16]
"Do you know what slander is?" They answered, "Allah and His Messenger know best." He said, "It is to mention of your brother that which he would dislike." Someone asked, "What if he is as I say?" And he replied, "If he is as you say, you have slandered him, and if not, you have calumniated him."[17]
"The Muslim is the brother of the Muslim. He does not betray him, lie to him, or hang back from coming to his aid. All of the Muslim is inviolable to his fellow Muslim: his reputation, his property, his blood. Godfearingness is here (the heart). It is sufficiently wicked for someone to belittle his fellow Muslim."[18]
Sura 49:11 (Koran)
Oh you who believe! Let not a group scoff at one another group, it may be that the latter are better than the former. Nor let (some) women scoff at other women, it may be that the latter are better than the former. Nor defame one another, nor insult one another by nicknames. How bad is it to insult one's brother after having Faith [i.e. to call your Muslim brother (a faithful believer) as: "Oh Sinner" or "O wicked"]. And whosoever does not repent, then such are indeed Zalimun (wrongdoers).