The History of the Muslim Brotherhood in the U.S. Courts

By Jeffrey Breinholt

The most pointed and interesting discussions at the recent NEFA Conference on the Muslim Brotherhood involved the issue that is the subject of so much recent public commentary: whether Western governments should embrace the Brotherhood as an effective counterweight to Al Qaida. Meanwhile, the lawsuit filed by several Arizona-based Muslim leaders against US Airways, after passenger complaints led to their being pulled from a recent Minnesota flight, along with the libel actions filed against those who have dared to write about Islamic charities in the U.S., raises an interesting issue that was not addressed at the NEFA event nor, to my knowledge, by any legal commentatory: what is the Muslim Brotherhood’s history with the American courts?

Here’s the short answer: the Muslim Brotherhood has been mentioned in a total of 36 federal court opinions, a sufficiently small universe that one can easily absorb all of these opinions to get a sense of this aspect of American jurisprudence. This universe of cases offers some truly fascinating insight.

This insight does not come from those cases that have already been well publicized. As described in the Counterterrorism Blog by Matthew Levitt, starting in Dallas this month, federal prosecutors will be opening a trial that involves allegations that persons affiliated with the Holy Land Foundation for Relief and Development illegally provided material support to Hamas, and this case has generated some pre-trial rulings that mention the Muslim Brotherhood. U.S. v. Holy Land Foundation, 2006 WL 3542685 (N.D.Tex 2006.). After 9/11, prosecutors in Virginia succeeded in obtaining a conviction of a Hamas operative named Soliman Bihieiri for naturalization fraud, though they failed to obtain the terrorism enhancement at sentencing, during which they presented evidence about his association with the Muslim Brotherhood. U.S. v. Biheiri, 299 F.Supp.2d 590 (E.D.Va.,2004). The Muslim Brotherhood was also mentioned in one court case involving Mousa Abu Marzook’s New York proceedings to determine whether he should be extradited to Israel, which had charged him criminally. Matter of Extradition of Marzook, 924 F.Supp. 565 (SDNY 1996).

There were several opinions arising out of the civil wrongful death lawsuits, in which American lawyers sought or are seeking damages from entities and governments allegedly associated with the Muslim Brotherhood. Weiss v. National Bank of Westminster, 2007 WL 1460933 (E.D.N.Y 2007); Weiss v. National Westminster Bank PLC, 453 F.Supp.2d 609 (E.D.N.Y.,2006;) Strauss v. Credit Lynonnaise, 2007 WL 1558567 (E.D.N.Y 2006.); Strauss v. Credit Lyonnais, S.A. 2006 WL 2862704 (E.D.N.Y. 2006); Boim v. Quranic Literacy Institute, 340 F.Supp.2d 885 (N.D.Ill.,2004); and Ungar v. Islamic Republic of Iran, 211 F.Supp.2d 91 (D.D.C. 2002). These opinions recite the plaintiff’s allegations that the Muslim Brotherhood should be held responsible for some terrorist attacks.

The most common type of case mentioning the Muslim Brotherhood (16 opinions), it turns out, involves immigration litigation, where aliens litigated whether they should be sent back to their home countries. Several involved persons who claimed that they would be persecuted or tortured if returned to their home country - typically Syria or Egypt - because of the perception that they are affiliated with the Muslim Brotherhood. Farag v. Attorney General, 2005 WL 147463 (E.D.Pa. 2005); Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004); Kharrat v. I.N.S., 60 F.3d 833 (9th Cir. 1996); Kharrat v. I.N.S., 60 F.3d 833 (9th Cir. 1995); Khano v. I.N.S., 999 F.2d 1203, (7th Cir. 1993); Ajlani v. I.N.S., 947 F.2d 953 (10th Cir. 1991)(unpublished); and Chebchoub v. I.N.S., 257 F.3d 1038 (9th Cir. 2001). Several of these cases involved an alien’s allegation that they would be threatened by the Muslim Brotherhood if forced to go home. Almasri v. Gonzlalez, 147 Fed.Appx. 707, 2005 WL 2673540 (9th Cir. 2005).; Malak v. Ashcroft, 110 Fed.Appx. 217, 2004 WL 2202256 (3rd Cir. 2004)(unpublished); Zaza v. Ashcroft, 106 Fed.Appx. 640, 2004 WL 1987310 (9th Cir. 2004); Al-Sayegh v. Ashcroft, 104 Fed.Appx. 656, 2004 WL 1826220 (9th Cir. 2004); Khalil v. Ashcroft, 337 F.3d 50 (1st Cir. 2003); Aljabi v. I.N.S., 108 F.3d 336 (9th Cir. 1997)(unpublished); Rouman v. I.N.S., 983 F.2d 1077 (9th Cir. 1993); and Elnager v. I.N.S., 930 F.2d 784 (9th Cir. 1991).

Among these immigration cases is a single opinion arising out of the celebrated case involving the U.S. government’s refusal to permit academic Tariq Ramadan to come to the U.S. to accept a teaching appointment at Notre Dame. American Academy of Religion v. Chertoff, 463 F.Supp.2d 400 (S.D.N.Y. 2006). In that litigation, Ramadan - who is the grandson of Hassan al-Banna, the founder of the Muslim Brotherhood - claimed that he has not embraced his grandfather's vision and has never considered himself a Muslim Brotherhood member.

The most interesting of the Muslim Brotherhood cases, however, involve persons who argued that their constitutional rights were being violated by not being permitted to engage in Brotherhood activities while incarcerated in American correctional facilities. Reischauer v. Jones, 2007 WL 1521578 (W.D.Mich 2007); Reischauer v. Jones, 2005 WL 2045833 (W.D.Mich. 2005); Small v. Lehman, 98 F.3d 762 (3rd Cir. 1996); Salih v. Smith, 1994 WL 750529 (D.Md. 1994); Munir v. Scott, 792 F.Supp. 1472 (E.D. Ich 1992); and Muhammed v. Michigan, 924 F.2d 1058 (6th Cir. 1991)(unpublished).

The truly amazing insight come from three of these prisoner lawsuits:

• George Desmond, an inmate at the federal prison in Lewisburg, Pennsylvania, filed a lawsuit complaining that prison officials refused his request to enjoy religious instruction from Elijah Muhammed, the leader of the Nation of Islam. The officials decision was based on the content of the meetings that had been held were hate-filled and filled with anti-Christian and anti-Jewish diatribes, and the prison had uncovered coercive recruiting by the group among the black inmate population, and their decision was ultimately affirmed.

• In New York, Emmanuel Washington sued the warden of the Green Haven State Prison, claiming that three fellow prisoners had been segregated from the others and deprived of the guidance of their own minister, and of the right to receive prayer books, Holy Koran magazines and newspapers, solely because they are adherents of the Muslim Brotherhood. The trial judge found that the Muslim Brotherhood as it existed at the prison was not a religion but rather a secret organization which was a fomenting point for unrest and frustration, and that plaintiffs had been punished for their membership in the Brotherhood and segregated as a proper and necessary step in the insurance of discipline and good order within the prison and that, in so doing, the Warden had violated no rights.

• James Pierce, Martin Sostre and another inmate of the Clinton Prison in Dannemora, New York unsuccessfully challenged the wardens decision to punish them for agitation, which they claimed was as a result of their association with the Muslim Brotherhood.

Why are these cases so interesting? It turns out they were litigated in the early 1960s. Desmond v. Blackwell, 235 F.Supp. 246 (W.D. Pa. 1964); Sostre v. McGinnis, 334 F.2d 906 (2nd Cir. 1964); and Pierce v. LaVallee, 212 F.Supp. 865 (S.D.N.Y. 1963), 319 F.2d 844 (2nd Cir. 1963).

This revelation is stunning. It means is that the Muslim Brotherhood was sufficiently active and well-organized in the United States to have reached American prisoners, and to have litigated prison conditions here, starting over 40 years ago. The fact that this legal history exists has, to my knowledge, never been considered in recent debates about whether to embrace the Brotherhood as an organization that can help the U.S. meet the challenge of violent jihadists.

These old cases should be of vital interest for another reason, which involved a court’s decision in one of them. The Pierce case described what triggered the disciplinary action against the three Muslim inmates accused of “agitation” in the administrative action challenged in the lawsuit. At the Clinton facility, there had been a system whereby plots of land in the prison yard of varying dimensions are assigned to inmates for their use during specific hours when yard privileges are available. Some 300 plots, known as “courts,“ were dedicated to various recreational or educational purposes. One or more of such courts were assigned to and controlled by members of the Muslim organization.

In the spring of 1959, the prison authorities directed surveillance of the Muslim court and a report by the yard guard of activities on them. The testimony of the guards indicated a more or less continuous activity within the Muslim court. A larger number of inmates that was usually found gathered at that area and were often addressed by some individual. Upon the approach of a guard to the Muslim court, all conversation and activity ceased so that the guard was unable to hear what was being said. When the guard moved out of hearing distance, conversation resumed and the speaker apparently received the full attention of the group. This action was interpreted by prison officials as indicating furtive discussions, indicative of secretiveness or condition of unrest.

On August 10, 1959, the prison authorities examined a homemade “locker” located on the Muslim court and discovered a Muslim Brotherhood written constitution. This document was significant enough to the court’s decision for it to include it as an appendix to the Pierce opinion. It provided:

1. To maintain ourselves and the Muslim Brotherhood as the vigorous, intellectual vanguard of the struggle for complete unity among our brothers by employing the unifying force of Islam.

2. To secure & maintain the complete intellectual unity & awakening of our brothers by promoting the advantages of unity of action and organization through the study of: Islam; our history which has been concealed from us; the struggle for freedom being made by our brothers at home and abroad; and all other pertinent subjects.

3. To build and train leaders for the future struggle so that each member upon his release shall be so equipped, that he will be able to successfully organize his own group or be an asset to any organization he may join.

INTRODUCTION

Since no movement can endure unless there is a stable organization of trained, selected and trusted men to maintain continuity and carry its program forward to successful conclusion.
And since the more widely our brothers are drawn into the struggle for freedom the more necessary it is to have an organization such as the Muslim Brotherhood to establish unity of action and thereby making it impossible and difficult for demagogues, sell-out men, uncle-toms, traitors, cowards and self-seekers to lead astray any section of the masses of brothers.

And since, in a country like this with a despotic anti-brother and anti-Muslim government, and in addition being inside the prison of the enemy, the more necessary it is to restrict the Muslim Brotherhood to persons who are sincere and going “all the way”. These will be trained in the art of combatting all manner of intrigues, deceptions & persecutions thereby making it difficult for anyone to disrupt the programs of the Muslim Brotherhood.

I therefore accept and abide by the laws of the Muslim Brotherhood which are as follows:-

1. I will irrevocably obey and act upon the orders, commands, instructions and directions of the Muslim Brotherhood.

2. I will always serve, sacrifice and suffer anything for the cause for which the Brotherhood stands, and will at all times be ready to go on any mission that I may be called upon to perform.

3. I will always and in all circumstances help a member of the Muslim Brotherhood in all things and in all difficulties.

4. I will make it my aim & duty to foster the cause for which the Brotherhood stands among all the brothers.

5. I will, except as a last resort avoid the use of violence.

OATH OF ALLEGIANCE

On my life, honor and fortunes, I solemnly pledge and promise that I shall always live up to the aims and aspirations of the Muslim Brotherhood, and shall never under any circumstances divulge any secrets, plans and movements of the Muslim Brotherhood, nor betray a member brother; and if I dare to divulge any secrets, plans or movements of the Muslim Brotherhood, or betray a member brother or the cause, or use the influence of the Brotherhood for my own personal interest, I do so at my own risk and peril.

MEMBERSHIP

Only brothers shall be eligible for membership and these must accept Islam, the objects, policy, program & discipline of the Muslim Brotherhood.

Any person who is a known informer or a homosexual shall not be eligible for membership. (the rumor that one is an informer, shall, in the absence of evidence to the contrary, bar one from membership).

Application for membership shall be made through a member who shall introduce the applicant to members of the Brotherhood for their acceptance or otherwise.

All new members accepted by the organization shall undergo a probationary period of two months. During this time such probationary member shall be given a copy of the Rules of Court only and such probationary member shall be carefully watched at all times by all members as to his conduct, sincerity and motives of joining the Brotherhood.

During the probationary period, the probationary member shall merely be an observer at Brotherhood meetings and although he may voice his opinion, he shall not vote. He may participate in all activities of the organization except the meetings in which strategy & secret plans are discussed.

It shall be the duty of all full-fledged members to instruct the probationary member on Islam, Arabic and all other projects, activities & studies (except secret plans & strategy) of the Brotherhood and to aid him toward becoming a full-fledged member.

After the two month probationary period, the probationary member shall become a full-fledged member of the Brotherhood only upon an affirmative vote of the members.

Should the probationary member fail to receive the necessary vote, a second vote shall be taken to extend his probationary period for an additional month.

If on the second vote less than the majority of the members vote for extension of the probationary period, the probationary member shall be denied membership.

MEMBERSHIP DUES AND CONTRIBUTIONS

Each individual member of the organization shall pay monthly dues as determined by the Brotherhood unless exempted therefrom.

The Brotherhood shall maintain a fund (from dues & voluntary contributions), such fund to be used for supplementing the diet of the members and furthering the cause of the Brotherhood only.

COMMUNICATION

A close liaison shall at all times be maintained between all members of the organization, in prison and out. As far as possible all communications should be done by personal contact, or employing only members as couriers and messengers. Letters & notes on important subjects (in prison) should be written in Arabic (on the outside, letters, telegrams, telephones & cables should be used only for making appointments to discuss business). Discussion of Muslim Brotherhood matters in public places is forbidden.

All members shall upon their release maintain contact with the Brotherhood and aid it.

Also important is part of the Pierce court’s ruling - that the Muslim Brotherhood should be treated as a political rather than religious organization, for purposes of determining the constitutional claims of the Brotherhood prisoners. Pierce v. LaVallee, 212 F.Supp. 865 (S.D.N.Y. 1962).

In considering to what extent the U.S. should officially embrace the Muslim Brotherhood, it is not a question whether they are already at our shores. They are, after all, so entrenched that they have been an organized group in our prisons for almost half a century.

It should be noted that this aspect of American jurisprudence dealing with the Brotherhood is a small portion of those cases that have involved the religious rights of Muslims in U.S. prisons. Prison litigation is a trademark of the Nation of Islam. As I will describe in another article, starting in the 1960s, a full 80 percent of all references to the Nation of Islam in American federal court opinions (197 cases out of approximately 250) involved prison litigation.

(As always, the opinion in this article are the author's own, and do not reflect those of the Department of Justice.)