By David Hanners
Thursday, September 20, 2012
If a Muslim woman wasn't punished for refusing to stand when a federal judge entered the courtroom, others would have been emboldened to show disrespect for the court, the judge has ruled.
Chief U.S. District Judge Michael Davis wrote that defendant Amina Farah Ali's silent gesture -- which she said was rooted in religious principle -- could have led to chaos during her trial on terrorism-related charges last year.
"If Ali were allowed to sit while court is called, it may have been possible that her many sympathizers would have begun to emulate her in a show of support," Davis wrote in anopinion and order.
"The court was also concerned that allowing Ali to show disrespect for the court by failing to rise would encourage additional signs of disrespect, leading to a loss of control in the courtroom."
Ali, 36, is one of two Rochester women awaiting sentencing for raising money for al-Shabaab, a group fighting the government of her native Somalia.
In a pretrial hearing and during the first two days of her trial last October, Ali refused to stand when Davis entered or left the courtroom. The "standing requirement," as it is known, is intended as a show of respect for the legal system in general and not the judge in particular.
After the first incident, Davis warned her that he would find her in contempt if she did it again. She did, and in all, the judge issued 20 contempt citations against her and gave her five days in jail for each one.
Ali told Davis that she did not rise because she believed her religious beliefs barred such a gesture. She related an Islamic teaching in which the Prophet Muhammad told a group of people they needn't stand for him as a show of respect.
After finding Ali in contempt, Davis revoked her pretrial release and ordered her jailed. After two nights in jail -- and after she talked to Muslim leaders -- she began rising on the trial's third day.
Ali and co-defendant Hawo Mohamed Hassan, 65, (who did stand) were convicted of conspiracy and other counts and are awaiting sentencing; each could to 30 years in prison. Ali's attorney, Daniel Scott, appealed the contempt citations to the 8th U.S. Circuit Court of Appeals.
Scott argued that Ali's actions weren't disruptive and that because they were sincerely held religious beliefs, Davis was obliged under federal law to find the "least restrictive" way to maintain order in the court.
The appeals court agreed. It said the Religious Freedom Restoration Act of 1993, or RFRA, required Davis to find a way to accommodate the woman's religious expression. But the three-judge panel also said judges have discretion in how they run their courtrooms.
The appeals court threw out all but the first contempt citation and sent the matter back to Davis to reconsider. At a hearing Tuesday, Sept. 18, (at which Ali stood when the judge entered) Davis reinstated the contempt citations but then "purged" them, saying he would explain his rulings later in a written order.
That opinion and order was issued late Wednesday. In the 15-page document, the judge said the women's case had generated a lot of publicity and that because it involved al-Shabaab -- which the State Department designated as a terrorist organization in 2008 -- the case "raised security concerns for the Court."
Davis wrote there was a "compelling government interest" in maintaining order in the court. He said the woman's religious expression wasn't the only thing he had to consider.
"Here, the issue is not Ali's mere failure to stand," Davis wrote. "Rather, Ali's failure to stand must be evaluated in light of the nature of the charges issued against her and the factual backdrop to such charges -- raising funds and other material support for a designated foreign terrorist organization, al-Shabaab."
He said public sentiment surrounding the case "was deeply divided, and the charges evoked strong passions on the part of those who, like Ali, support al-Shabaab, and those who may have been direct or indirect victims of al-Shabaab's terrorist activities."
The courtroom was filled with spectators during the trial. Many Somalis interviewed said that though they were there to support Ali and Hassan, they opposed al-Shabaab, which has carried out acts of violence, including suicide bombings, in its attempts to wrest control from Somalia's government.
Davis said that because it was a high-profile case and feelings ran strong, he needed to "enforce the rules of decorum strictly" and "make it known that the court rules would be strictly enforced, given the potential for outbursts or even violence."
He said that given those considerations, his order that Ali rise -- and his contempt citations -- didn't violate Ali's rights under RFRA.
$8,600 AT STAKE
Ali is married and a mother of two. She was convicted of conspiracy and 12 counts of providing material support to al-Shabaab. The federal charges said she was responsible for wiring $8,608 to the group between September 2008 and July 2009.
Hassan, a mother of nine who had been a teacher in Somalia, was convicted of conspiracy and two counts of lying to the FBI.
The women didn't deny she had raised the money and, indeed, before the State Department's February 2008 designation, such activities weren't illegal. They said the money they raised was intended for orphans, the poor and the families of militants in their native Somalia.
It was clear in phone conversations secretly recorded by the FBI, though, that the women knew some of the money was funding al-Shabaab fighters seeking to overthrow Somalia's transitional government.
The money they raised was miniscule by al-Shabaab standards; the funds they wired over a 10-month period was equivalent to what the group brings in every 45 minutes.
A 2011 U.N. report said al-Shabaab generated $100 million a year through taxes, extortion, commerce, "diaspora support" and other sources.
David Hanners can be reached at 612-338-6516.