How Islamophobia Was Ingrained in America’s Legal System Long Before the War on Terror

At the turn of the 18th and 19th centuries, hundreds of thousands of African Muslims were forcibly brought to the United States to be enslaved. One of them, Omar Ibn Said, from Futa Toro, in modern-day Senegal, chronicled his journey and life under enslavement in a brief 15-page manuscript. “Wicked men took me by violence and sold me,” he wrote. “We sailed a month and a half on the great sea to the place called Charleston in the Christian land. I fell into the hands of a small, weak and wicked man, who feared not God at all.”

Omar Ibn Said converted to Christianity after he was forced from West Africa to the newly declared United States. His own autobiographical writings, however, provide evidence that he continued practicing Islam, as he had done in his homeland, until his death. “His outward conversion was a shield from punishment, one that enabled him to continue to observe Islam, his native faith,” writes critical theorist and legal scholar Khaled Beydoun in his new book, “American Islamophobia.”

Beydoun traces the beginnings of structural Islamophobia in the United States to Omar Ibn Said’s story, dispelling the pervading myth that it is a new phenomenon that came about only after 9/11 and intensified with the arrival of Trump to the political stage. He convincingly argues that throughout the existence of the United States, there has always been a legal framework in place that defines Islam and Muslim identity as incompatible with Americanness. Beydoun draws on the work of various theorists, including Edward Said and Kimberlé Crenshaw, to define Islamophobia as a structural phenomenon that is not simply rooted in acts of hate from private individuals and impacts Muslims occupying multiple identities, such as queer Muslims and black Muslims, in varying ways.

Khaled Beydoun, associate professor of law at the University of Detroit Mercy School of Law and senior affiliated faculty at the University of California, Berkeley Islamophobia Research and Documentation Project.

Much like other notable works on Islamophobia by scholars like Erik Love and Moustafa Bayoumi, Beydoun looks at the scope and impact of domestic “war on terror” legislation in how it racialized Muslims and transformed everyday life within Muslim communities. What he adds with “American Islamophobia” is the terminology and language to describe the demonization of Muslims from the state — and the necessary legal and historical context to understand the depth of structural Islamophobia and the tools needed to dismantle it.

The Intercept interviewed Khaled Beydoun about the experience of Muslim and Christian immigrants from the Middle East in the early 20th century, the roots of a media discourse that otherizes Muslims, and Trump’s continuation of a long heritage of systemic discrimination.

You begin your book by defining Islamophobia as rooted in state law and policy, and of course, there are instances of Islamophobia that happen in the form of hate crimes from everyday citizens. Can you walk through how these two forms of Islamophobia work together?

Fundamentally, I define it as the presumption that Islam is violent, inassimilable, and prone to terrorism. That presumption is effectively driven by law, by state policy. However, since Islamophobia has captured a lot of attention in the last couple of years, it’s been characterized as a form of animus or fear held by private individuals. It’s thought to be irrational, unleashed by individuals who are representative of society rather than what the state is doing, which exempts the state from any role with expanding or intensifying Islamophobia.

As a law scholar, I spend a lot of time thinking about Islamophobia and its precedent system, Orientalism. These stereotypes that are held widely by people, that are subscribed to by media pundits, scholars, and others, are derived from law and policy. That is their origin. I think one of the fundamental theses of the book is that it is state law and policy that is spearheading and disseminating these negative tropes. And the fundamental trope is tying Muslim identity to the possibility for terrorism.

Structural Islamophobia is basically how state policy like the Patriot Act, NSEERS, Countering Violent Extremism, the travel bans, even the “See Something, Say Something” campaign, are all central to advancing the war on terror, are built upon the foundational presumption that ties Muslim identity to the possibility of homegrown radicalization.

[NSEERS, the National Security Entry-Exit Registration System, required tens of thousands of designated travelers from mostly Arab and Muslim-majority countries to be fingerprinted and interviewed upon entering the United States. The Countering Violent Extremism program gives federal grants to community organizations and law enforcement to monitor people espousing radical beliefs. The program has overwhelmingly focused on Muslims.]

“American Islamophobia: Understanding the Roots and Rise of Fear,” by Khaled Beydoun.

Private Islamophobia, which is the form that is widely covered and monopolizes broader definitions of Islamophobia, looks primarily at what private individuals are doing with regard to attacking, targeting, holding specific negative ideas of Muslims. We see this through the uptick in hate crimes, attacks on conspicuous or visible Muslims.

Dialectical Islamophobia is what ties the two together. It’s the idea that law and policy that forms structural Islamophobia are communicating really powerful messages to the people. If war on terror policies are effectively communicated — that Muslims are suspicious and close tabs need to be kept on them — that is effectively qualifying to the citizenry that these are bad, scary people. It’s endorsing these negative stereotypes that are widely held in society, which are disseminated from mass media and film. The dialectic is whereby state policy is endorsing and authorizing stereotypes of Muslims. During moments of crisis, the rhetoric that comes from people like Trump emboldens private Islamophobia.

In the book, you walk through the immigration cases of Muslim and Christian immigrants from the Middle East in the early 20th century. As a legal scholar, was there anything that surprised you in researching these past cases?

I initially read about these cases when I was in law school. I first encountered these cases, which are called the naturalization cases, through the experiences of non-Arabs and non-Muslims. I was reading what happened to South Asians and East Asians. There are two landmark Supreme Court cases that many people will read in law school: U.S. v. Thind, a case involving a Sikh individual seeking to become a naturalized citizen, and U.S. v. Ozawa, involving a Japanese resident of California.

I was reading these cases in the aftermath of 9/11. I quickly realized that much of the legal, scholarly attention on this era did not address what happened with Arabs and Muslims. It was primarily focused on what was going on with East Asians, South Asians, and Europeans. There was great work done on Jews and Italians seeking citizenship, and how Judaism and Catholicism pre-empted the possibility of immigrants from Europe who were Jewish and Catholic from becoming white. But there were very few Arab and Muslim law scholars. I wanted to try and fill that void.

It’s important to note from 1790 to 1952 there was a law in place called the Naturalization Act of 1790, which mandated whiteness as a prerequisite for citizenship. Which means if you were an immigrant from anywhere in the world and you wanted to become a naturalized citizen, you had to prove to a civil court judge that you were, in fact, white. This posed a dilemma not only for Muslims but anybody who came from “the Orient.” If you were a Christian coming from Lebanon or Syria, or an Egyptian Coptic Christian, Chaldean, or Assyrian coming from modern-day Iraq, even if you were a Jew coming from Morocco, you were presumed to be Muslim. Muslim identity was racialized and Orientalism was embraced by the courts. So you see Orientalism shift from this theoretical discourse into a legal phenomenon because it drove how civil court judges saw these immigrants from the region known as the Muslim world. Arab Christians effectively had to over-perform their Christian identity in order to persuade judges that they were not Muslims in order to be perceived to be white by law.

Religion was central to the formation of racial identity, and the cornerstone of whiteness is Christianity. So Christianity became the possible portal by which Arab Christians could become white. In 1915, the Dow v. United States case ruled that specifically Syrian Christians were white by law. However, Muslims, because Islam was constructed as the racial, civilizational antithesis of whiteness and American identity, could not become citizens.

Before 9/11, what would you say is the most significant turning point in terms of how mass media frames Islam and Muslims?

The imagery out of the 1979 Iranian hostage crisis was really potent, and it modernized how we conceive of the Muslim threat today. It was a shift from how we thought about the images and ideas that were disseminated from classical Orientalism, which primarily depicted Muslims as savage and patriarchal but weren’t the kind of immediate national security threat in the way that we imagine them today.

The hostage crisis demonstrated the early stages of the development of the modern Muslim terrorist. You saw these turban-clad, beard-wearing Iranian men carrying rifles handling these ambassadors and statesmen who were largely white. And remember, it was around the clock coverage at the time. People came home and were watching for updates, it was on the front pages of the New York Times and the Washington Post. News anchors were building careers off of this. The ratings for coverage of the hostage crisis were through the roof.

Armed Iranians search Americans who were living in the U.S. Embassy compound in Tehran, Iran, on Feb. 14, 1979.

It also had major political ramifications; Jimmy Carter lost the election because of his handling of the hostage crisis. The sheer scale of the event and that political moment led to the permeation of this male, Muslim, brown, bearded threat, which becomes the modern prototype for how we think about the Muslim terrorist. In addition to that, it had a major psychological impact in that American hegemony isn’t as strong as we might think. It was a moment of vulnerability, that these guys can really do harm if they want.

The second major moment is the Oklahoma City bombing in 1995. The immediate reporting from prominent, well-respected journalists in news stations like CNN and CBS reported it as a Muslim threat. There’s a tie to what happened and how the impact of 1979 was entrenched in media institutions. That was the reporting initially, but it turned out that the culprit, Timothy McVeigh, was a young white man conspiring with other young white men.

Ultimately, I don’t think the identity of the real culprit mattered because it demonstrated in the contemporary moment in 1995, regardless of what happens, the immediate presumptions were that suspects are going to be Muslims. Even when they’re not, the state response will be geared specifically toward Muslims, which demonstrates the early stages of structural Islamophobia as we know it today coming to the fore.

What do you make of the more recent contemporary and “liberal” depictions of the “good Muslim/bad Muslim” dichotomy that equates piousness as suspect, and non-practicing Muslims as the “acceptable” way of being Muslim?

You have a celebration of Muslim womanhood, especially the hijab in the commercial mainstream. For instance, Macy’s just adopted a line of conservative clothing including hijabs. Nike just made a Nike Pro Hijab. Mattel made a doll of Ibtihaj Muhammad, the Olympic fencer. This celebration of Muslim women appears to be progress. But we have to ask, What are they driven by? Are they driven by commercial interests? And why now? What about this moment makes it palatable or safe to express Muslim identity?

There’s a racial dimension, too. You don’t see black Muslims being celebrated in mainstream spaces. There’s a racial and a colorist dimension. There’s a commitment to not only almost stripping Muslim identity from its religious and conservative religious foundation, but also to whitewash it in some ways. To make it as palatable and alignable with whiteness as possible. So you see a celebration of fair-skinned Muslim women. You see a celebration of brown Muslim men in Hollywood who are generally quite intentional about distancing themselves from conservative expressions of Muslim identity. Which plays on the binary you brought up earlier — that these are individuals who are good Muslims who are keen on assimilating and who are veering toward American identity in ways that are distancing themselves from Muslim identity.

Can you elaborate on why black Muslims, despite being nearly a quarter of the American Muslim population, are rarely represented in media, pop culture depictions, and even within the Muslim community? How does anti-blackness factor into Islamophobia?

It’s important to start off with the idea that the formation of racial classifications in the United States is distinct. It’s distinct in the fact that blackness was shaped to be the direct opposite or the antithesis to whiteness. Blackness became synonymous with slavery. It was shaped to brand black bodies as property and not human beings. As I point out in the book, a large percentage of enslaved Africans in the antebellum South were in fact Muslims. They continued to practice Islam when they were bonded to slavery.

This is in the legal origins of why we don’t see black Muslim bodies today as legitimate or bonafide Muslims. Because blackness became an identity, became stripped from religion. Simultaneous to the construction of blackness as areligious chattel was the production of Muslim identity through the Orientalist lens of being narrowly Arab and Middle Eastern. Muslim identity was racialized, and black bodies were commodified. Those two constructions were irreconcilable. In order to be Muslim, you had to be Arab or Middle Eastern. So a black Muslim was an identity that was oxymoronic according to the legal construction of Muslim identity and black identity.

And these perceptions and frameworks continue today. Most Americans will only view black Muslims as part of the Nation of Islam, not as any other type of Muslim. It’s tied to that specific political designation and it comes from these formative constructions of black and Muslim identities.

When we talk today about anti-black racism, it functions in a dynamic way within the Muslim community and beyond the Muslim community. We know that anti-black racism is pervasive in Arab Muslim communities and South Asian Muslim communities. That’s tied to a number of things. When Arabs and South Asians come stateside, they want to become white, and early on, this was because whiteness was tied to citizenship. You had to effectively be acknowledged as white by a court to become a citizen, and what’s central to the inclusion into the white population is the performance of anti-black racism. There’s an overcompensation effect when it comes to communities like Arabs and South Asians who want to be white. So they might engage in anti-black racism at a clip higher than whites to prove to the white gatekeepers that they are part of this group.

When we look at the intersection of anti-black racism and Islamophobia, especially during this moment in America, it highlights the enhanced vulnerability black Muslim communities face. This intersection of racist, aggressive, violent policing in places like Philadelphia and Baltimore, where there’s a sizable African-American Muslim community, or Minneapolis, where there’s a large black Somali community, makes these communities face structural and state-sponsored Islamophobic programs while also facing the perils of police brutality and racial profiling.

What do you make of the Trump administration’s brash anti-Muslim rhetoric and policy, with regard to the Muslim ban, and targeting of undocumented immigrants from African Muslim-majority countries? Do you consider this to be a new phase of Islamophobia in America?

We’re definitely in a new phase of Islamophobia, which can be best characterized as a transparent, brazen, explicit unleashing of Islamophobia that is spearheaded by the likes of Donald Trump. He makes it very apparent by enacting the Muslim bans and saying things like “Islam hates us.” The words are new and the scale of the rhetoric is unprecedented in the modern era, but the underlying ideas and structural mechanisms are well in place. Trump is succeeding two presidents who were entirely invested to carrying forward the war on terror. The difference is he is escalating things and he’s being more honest about it. But he’s not establishing new structures. The Department of Homeland Security was created by President Bush. President Obama intensifies surveillance of Muslim communities with establishing the Countering Violent Extremism program in 2011.

Girls in hijabs walk past a man as he shouts at activists, not pictured, protesting outside Trump Tower against the U.S. Supreme Court decision to revive parts of a travel ban on people from six Muslim-majority countries, in New York City on June 26, 2017.

The fundamental distinction between Trump and the preceding two presidents is the type narrative that is relayed to the public. George Bush was very much wed to the “clash of civilizations” binary that we are at war with Islam. He framed it as the good Muslim versus bad Muslim binary. To him, there are the terrorists and there are the “good Muslims” who enlisted with us and buy into the war on terror project. Obama engages in embracing tolerant, almost laudatory rhetoric toward Muslims. He gave that beautiful speech in Cairo months after he was elected. But then there’s a dissonance where the message sounds really good, but the policies he capitalizes on are still wed to the idea that Muslim identity is correlated to the prospect for radicalization. Countering Violent Extremism becomes the signature counterterror program that he establishes. Trump does away with all of that. He doesn’t even engage in the good Muslim/bad Muslim binary. To him, they’re all bad. He embraces a more hyperbolized form of the clash of civilizations. There are no good Muslims according to Trump. Perhaps the only good Muslims to him are in places like Saudi Arabia that have some sort of economic and political value.

What needs to be done to dismantle structural Islamophobia? Are you hopeful that it can be done?

We have to approach it the way we think about dismantling and diminishing other forms of racism. It’s important to tie Islamophobia to the broader project of white supremacy. You can see that correlation really closely in the Trump campaign itself. “Make America Great Again” is the covert appeal to restoring white supremacy. It’s tied to the idea that we need to prohibit the entry of Muslims and rebuff the expansion of Islam.

Even among Muslims, there’s a lot of misunderstanding as to what Islamophobia is. There isn’t an understanding, broadly speaking, that ties it to laws, policies, and state structures, so the first step is to acknowledge that. That’s the primary catalyst of Islamophobia. Then the second step is to think about real strategy that enables us to bring down these policies. Even more so, the fundamental tenet that enables these policies to work. We’ve got to defeat the idea that Muslim identity is correlative with terrorism. And honestly, we have all the evidence that enables us to do that. Look at who the most likely mass shooters are, and who poses the greatest demographic threat in the United States — it’s not Muslims. We have to arm ourselves with arguments that critique the policies that are currently in place. If we can do that, then we can disconnect what the state is doing from endorsing negative stereotypes that are held widely in society.

How we do that practically is another question, which is why we need critical Muslim representation, not tokenized representation in media, academia, and in every sphere of American society. And I think we are seeing the formative stages of an emerging Muslim American intellectual renaissance, juxtaposed with this moment of rife Islamophobia.

Top photo: People hold flowers during a vigil for Nabra Hassanen, a 17-year-old Muslim girl killed while walking to her mosque, in New York City on June 20, 2017.