You would be excused for thinking that the Wahabbi religious establishment of Saudi Arabia and the religion guarantees of our First Amendment have no more in common than fire and water. But I think this oddest of odd couples helps to explain two recent events involving American Muslims and the rest of us — instances of so-called "home-grown" Islamist terrorism, such as the Fort Hood murders, and the resentment being reported among American Muslims at FBI and other law-enforcement-agency activities at U.S. mosques.

To be sure, the religious values the First Amendment protects — freedom of worship, the nonestablishment of a state church — are diametrically opposed to the religious dispensation in the Saudi state. There, the free exercise of religion is not only not guaranteed; it is scorned, banned, and prosecuted. Christianity is a crime, and don't even ask about Judaism. There, by all accounts, Wahabbi Islam is not merely the established state religion but also an institution whose control of Saudi life more nearly resembles a totalitarian government than the Anglican establishment, whose like the First Amendment forbade. The Saudi minister of the interior, His Royal Highness Prince Nayef bin Abdul Aziz, who runs their religious establishment, recently ordered a 75-year-old woman flogged with 40 lashes for "prohibited mingling."

But the First Amendment seems to be the Wahabbi establishment's best friend here in the U.S. "First Amendment concerns" seem to be a principal reason why, for nearly 30 years, the U.S. government has turned a blind and even benign eye on the creation within the U.S. of a network of Wahabbist mosques and related Wahabbist entities paid for and frequently staffed by the Saudi establishment — a network now bearing bitter fruit.

That such a network exists is beyond fair dispute. The website of the late King Fahd bin Abdul Aziz (Fayed's brother) boasts of having funded mosques in prime and not so prime venues: New York; Washington, D.C.; Los Angeles (two different ones); Chicago (three different ones); northern Virginia; Columbia, Mo.; Toledo, Ohio; and elsewhere. The total number of Wahabbi-funded mosques in the U.S. is huge: Hussain Haqqani, a recent Carnegie Endowment scholar and now Pakistan's ambassador to the U.S., estimates that Wahabbis with pro-Saudi leanings dominate 800 of the estimated 1,200 mosques in this country. Stephen Schwartz, an Islam expert (and no relation to me), estimates the total number of Wahabbi-financed mosques at "only" 600. Business Week editor Paul Barrett's carefully reported — and liberally oriented — study American Islam demonstrates that the lavish Saudi expenditures have given Wahabbism a hold on many American mosques, which is either impressive or appalling, depending on how you feel about flogging 75-year-old women.

Moreover, ancillary organizations created or maintained by Wahabbist funders include the Muslim Students Association, the Islamic Society of North America, the Muslim American Society, and others. Even non-Saudi-financed mosques often employ Saudi or other Arab imams who have been sent here by the World Muslim League, a vehicle created and financed by Saudis for spreading Wahabbism around the world. Barrett's book further reports that the Saudis pay American converts to Islam — mostly African-Americans — to go to Saudi Arabia, receive Wahabbist instruction, and come back here to serve as imams at U.S. mosques.

American law has treated the religious network created by this huge flow of Wahabbist money into the U.S. just as it would treat mosques created and financed by U.S. citizens, with the full protection of the First Amendment. The governing presumption is that their activities cannot be regulated — or even monitored — by government officials any more than those of an American mosque can. For example, because of First Amendment concerns, religious institutions do not have to receive advance approval from the IRS to claim tax-exempt status, as virtually all other charitable organizations do. For the same reason, religious institutions are exempt from filing the annual information return (Form 990) — which reports on the institution's sources and use of funds — required of all other tax-exempts. "Mosques" are religious institutions for these purposes, and the law makes no distinction between mosques organized and paid for by Americans and those organized and paid for King Fahd bin Abdul Aziz or his whip-wielding brother.

Likewise, efforts by the FBI and other law-enforcement bodies to find out what is being said at public worship services in mosques have been condemned by the ACLU and sharply questioned in senatorial hearings as violating the guarantee of freedom of religion — again, without any recognition of any distinction between King Fahd's mosques and American mosques. No effort is made to exclude Wahabbist imams from the rolls of those who preach to Muslims in our prisons — a rather volatile population; to the contrary, for many years, the U.S. Bureau of Prisons relied on a Saudi-financed organization to pick Muslim chaplains. Just last summer, the U.S. attorney general chose as the venue for an "outreach" visit the Umar bin Al Khattab Mosque in San Francisco, one of the mosques financed by King Fahd.

This Wahabbi network has now been linked to incidents of "home-grown terrorism." The Fort Hood murders are the most appalling case, in which an American citizen acted out in violent jihadist fashion after attending a Saudi-financed mosque. Major Nidal Hasan was a congregant of the Dar al-Hijrah Islamic Center, in Falls Church, Va. — part of an area known to some as Northernvirginiastan, or the Wahabbi Corridor. Dar al-Hijrah's membership rolls also include a rogues' gallery of terrorist sympathizers and participants, at least two now serving long prison sentences, another deported, a third an unindicted co-conspirator in the first World Trade Center case, and two now fondling virgins in the hereafter — two of the 9/11 perpetrators. The five Americans who were detained in Pakistan earlier this month on suspicion of aiding a Pakistani terrorist group worshiped at the I.C.N.A. Center in Alexandria, Va. One is not stunned to discover that that mosque is affiliated with the Islamic Center of North America, which in turn is closely affiliated with the Muslim American Society, described by Islam expert Schwartz as a "major component of the 'Wahabbi lobby'" in the U.S.

No one can say for sure whether there is really a cause-and-effect relationship between attendance at a Saudi-financed or Saudi-affiliated mosque and recruitment to violence and terrorism. And it is also true that there have been instances — like the Lackawanna Six — of Americans who turned to jihadism not attending Saudi mosques.

But the questions we ought to be asking are these: Do we have to take the chance that imported Wahabbism is creating physical danger for Americans? Does something in our law require us to permit the Wahabbi religious establishment of Saudi Arabia to create Wahabbist institutions in the U.S.?

I think the answer is plain: absolutely not. The assumption that American law cannot distinguish between Saudi mosques and American mosques is baseless. There is no case holding that a foreign religious establishment is entitled to claim the protections of the First Amendment. Indeed, in all the voluminous jurisprudence that has grown up around the First Amendment, there is nothing that even suggests that its protections apply to the Wahabbist enterprise of planting on American soil mosques and affiliated organizations whose financing and organization are in the hands of a foreign religious establishment. The words of Mr. Justice Jackson in a somewhat related context come to mind: "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited" (Johnson v. Eisentrager).

While the Court has held that Americans are entitled, without restraint, to receive "communications" from foreign sources — in the case itself, Communist propaganda produced by Communist governments (Lamont v. Postmaster General) — and therefore Congress cannot prevent American citizens from receiving Saudi literature, Lamont is a case about the rights of Americans, not foreigners. Nothing in that or any other case confers any right upon the foreign government itself — or its religious establishment — under the First Amendment, or in any way limits the government's power to regulate activity by foreigners that would be constitutionally protected if engaged in by Americans.

Plainly and simply, the First Amendment does not prevent Congress from flat-out prohibiting these expenditures. That is just what Congress ought to do.

Congress has done so in the area of campaign finance. It is illegal for any foreign government or foreign individual to make a contribution to an American political campaign. Period. This is the rule even though foreign governments or businesses may well have a legitimate interest in influencing American political campaigns, considering the importance that America's activities have in foreign countries. And no one has ever seriously argued that the prohibition violates the First Amendment.

Far from meriting First Amendment protection, the Saudi Wahabbist enterprise is, in the strictest sense, deeply anti-American and deeply hostile to our constitutional values. There is no precedent for it in our country's religious history. American worshipers who have religious or institutional ties with worshipers in other countries are typically exporters of support to those countries, not creatures of them. American Catholics participate in the program known as "Peter's Pence," sending contributions to the Vatican for the support of the Holy See. American Jews help support religious institutions in Israel and other countries. American Protestants underwrite the American and Foreign Christian Union, which supports English-language churches in European countries.

Moreover, the vast majority of American religious institutions — across boundaries of belief — are financed and governed congregationally. At least outside the Catholic Church, religious leaders are typically chosen by the members of the congregation and are hired or fired by them. Likewise, in a very large number of American religious institutions, it is congregants — through a "ritual committee" or the like — who decide on the religious issues that arise in a congregation.

But more than practice is against the Wahabbist enterprise. The First Amendment's prohibition of an "establishment" reflects not only the Jeffersonian idea that a "wall of separation" between Church and State protects us against clerical overreach, but also a belief that, as a great student of the First Amendment expressed it years ago, "a church dependent on governmental favor cannot be true to its better self" (Howe, The Garden and the Wilderness 7-8). Although these words were written long before the rise of Wahabbi-inspired Islamism, they elegantly state — or understate — the baleful results for Islam and the world of the Wahabbist enterprise in its native land. Congress would advance, not devalue, the First Amendment by putting an end to its sponsors' activities in America.

This is not to say that Congress could prohibit American Muslims from using their own funds to establish and pay for a mosque that adheres to Wahabbism. While an issue could fairly be raised about whether the violently exclusivist teachings of this strain of Islam deserve to stand on a constitutionally equal footing with the religious traditions that the First Amendment was intended to protect and foster, I doubt that a court would decide that truly home-grown Wahabbism doesn't merit constitutional protection.

But the point is that the Wahabbist institutions in America are not, as matters now stand, "home-grown" at all, nor is the terrorist activity associated with them. While these Saudi-underwritten mosques seem to attract large congregations, Barrett's book and other reporting suggest that there is significant resentment and even pushback from American Muslims to the infusion of money and personnel from the wealthy, high-handed, and politically wired Saudi establishment. Surely, American law ought to be doing everything possible to encourage this sentiment — leaving American Muslims to pay their own way, just as Christians and Jews and Hindus and Buddhists do --- and not to legitimate and entrench the Wahabbist enterprise. American Muslims' "free exercise" of religion promised by the First Amendment should be paid for by Americans, not King Fahd and his ilk.

Congressional action to ban Saudi financing of American mosques might also go a long way toward improving relations between Muslim Americans and our law enforcement agencies. These have come under pressure as the FBI and other agencies seek to find out what is being said and, potentially, planned in American mosques. Muslims have charged that law enforcement employs agents provocateurs and misuses immigration law in its efforts to head off Islamist violence.

It is hard to blame law enforcement for being suspicious of religious institutions so many of which are bought and paid for by the culture that produced the plotters and the foot soldiers of 9/11. What law-enforcement official worth his pay wouldn't wonder what is going on inside places whose paymasters rule a nation in which 75-year-old women are whipped, Christianity is criminalized, and a duty to wage murderous jihad against non-Muslims and even Shiite Muslims is endlessly preached?

If mosques were instead paid for and controlled by American citizens, this could go a long way toward building confidence that they are no more dangerous than churches and synagogues. At the least, it should no longer be assumed that our First Amendment is any bar to congressional action that would encourage such truly "home-grown" Islam.
 

Michael W. Schwartz, a member of the Commentary, Inc. board of directors, is a lawyer living in New York.

This article was published in the January 2010 issue of Commentary Magazine,
http://www.commentarymagazine.com/viewarticle.cfm/ wahhabism-and-the-first-amendment-15334

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