Hunting the “Out-of-Place Muslim”

A Strange Journey

In 2006, the CIA faced a problem: it did not have a clear return address for a prisoner it no longer wanted.  Marwan al-Jabur – abducted in Lahore, interrogated in Islamabad, and held in a secret prison most likely in Afghanistan – must have presented something of a puzzle, even after two and half years of secret detention.  He was born in Jordan, raised in Saudi Arabia, and lived in Pakistan for most of his adult life, where he had married a woman from Larkana, Sindh and raised three children.

But because al-Jabur is originally Palestinian, the desire to send him “home” was by definition legally fraught.  The CIA flew al-Jabur to Jordan; after several weeks, Jordanian intelligence handed him over to Israel; and the Israeli secret police held him for a month before sending him to the Gaza Strip – where his parents once lived, but where he had never spent any significant time.  Trapped in the tiny sealed-off territory while his wife and three children remain barred from leaving Pakistan, al-Jabur was released from a secret prison only to be exiled to what is arguably the world’s largest and most notorious animal pen.

Between the West and the Rest

It is a little-remarked fact that some of the most notorious aspects of the “Global War on Terror” (GWOT) – such as Guantánamo, “extraordinary renditions,” and the secret CIA prisons – have disproportionately affected Muslim diasporas outside the “west.”  Let us call these “out-of-place Muslims.”  As an Arab living in Pakistan, Marwan al-Jabur is a perfect example of GWOT’s “target” demographic.

Most of the discussion about “terrorism” and Islam relates either to the subjugation of Muslim lands through occupation or proxy regimes, or the surveillance, intimidation, and repression of Muslims minorities in the west.  I am referring here to a third and less-highlighted category: Muslim travelers and diasporas outside the west, especially Arabs in South Asia, Africa, and Southeast Asia.  Eurocentric narratives of mobility, globalization, and cosmopolitanism tend to focus either on westerners venturing out to conquer/civilize/exploit the rest of the world, or the rest of the world coming to the west to toil/menace/assimilate. This picture leaves out the longstanding patterns of trade, kinship, labor, and learning that link different parts of the non-western world, thereby rendering some people seemingly random, aberrational, or otherwise “out of place.” One of the distinguishing and largely overlooked features of GWOT is a suspicion of mobility, exchange, and cosmopolitanism on terms not defined or controlled by the west.

The targeting of out-of-place Muslims emerged in the 1990s and expanded after 2001, as the U.S. perceived “foreign fighters” as a special kind of enemy: roving transnational Islamists of the kind who joined the earlier jihads in Afghanistan, Somalia, the Philippines, and elsewhere.  Marwan al-Jabur’s case is again instructive: by his own admission, he traveled to Afghanistan in the 1990s for military training in order to fight in Chechnya, though he says he did not manage to go any further.  He returned to Afghanistan during the U.S.-led invasion to help Arabs and their families escape at a time when the Americans were reportedly paying $5,000 bounties to Afghans for any Arabs they could turn over, who would then be sent to detention in Guantánamo or elsewhere.

Al-Jabur’s story is also consistent with available research suggesting that most of these foreign fighters never went on to join al-Qa‘ida.  During the Soviet-Afghan war, thousands of foreign Muslims, especially Arabs, supported the Afghan mujahidin as fighters, aid workers, clerics, or journalists.  Later, various Afghan actors, including the Taliban, allowed armed groups from abroad to operate training camps.  These foreigners all claimed to be waging “jihad” in some way but represented a staggering range of agendas; some were dedicated to overthrowing dictatorships in their own countries, while others fought for Muslim minorities in Russia, China, and elsewhere.  Al-Qa‘ida was distinct in its focus on directly attacking the U.S. anywhere for its military presence and support for despotic and settler-colonial regimes in Muslim lands.   Many “transnational jihadists” – such as Hudhayfa ‘Azzam, son of the most prominent Arab participant in the Afghan jihad, ‘Abd Allah ‘Azzam – explicitly reject attacks on civilians inside the west while seeing combat against U.S. forces occupying Iraq as a duty.  Many commentators, including some critics of U.S. policy, have lumped all of these different armed groups together despite the significant differences between them.  The result has been an often exaggerated image of a Hydra-headed global conspiracy of groups sharing three characteristics: the use of political violence, the invocation of Islam as justification, and some transnational or “foreign” aspect.


Having framed its problem as one of foreign Muslim fighters, GWOT became a fight against Muslim foreigners.  Washington and its allies started looking at out-of-place Muslims as a suspect population of potential foreign fighters.  Hence the persistence of the assumption – in court records, intelligence reports, everyday offhand observations concerning GWOT – that any Arab in Afghanistan is probably up to no good.  A document used to train Guantánamo interrogators and obtained by Wikileaks could not make this perception any clearer:

Travel to Afghanistan for charity reasons or to teach or study Islam is a known Al-Qaida/extremist cover story without credence.  Likewise, travel to Afghanistan for any reason after the terrorist attacks of 11 September 2001 is likely a total fabrication with the true intentions being to support Usama bin Laden through direct hostilities against the US Forces.

Foreign fighters have attracted much attention from the security establishment (inspiring an entire conference by a right-wing think tank) and media.  They are a good enemy to have.  If most Muslim populations are bullied by the threat of being labeled either “moderate” or “extremist,” the foreign fighters are simply assumed to be beyond such a choice: they are almost by definition rootless, fanatical, and brutal.  We can see this distinction at work when the U.S. invites even the Taliban – hardly regarded as a sympathetic actor – to reform and abandon its foreign allies, who are portrayed as even more radical and implacable.

The focus on foreign fighters allows a kind of “enlightened” war on terror, one that can condemn the low-brow racism of Quran burnings and claim that the U.S. is not fighting a war on Islam.  Instead, it is helping Iraqis, Afghans, and others get rid of these narrow-minded interlopers who seek to impose their own puritanical brands of Islam.  In this way, the U.S. can even present itself as a champion of Muslim pluralism.

 Outside the Law or Above It?

 Critics accuse the U.S. of exaggerating the significance of foreign fighters to justify its actions or remind us that their presence should be understood as a response to U.S. occupation and invasion.  But there is more to the story.  On the one hand, the U.S. pushes out-of-place Muslims outside legal protection in the name of identifying and dealing with the foreign fighters amongst them.  On the other hand, it elevates other foreign fighters – namely, its own forces – above legal accountability.

To borrow the old counterinsurgency cliché, winning hearts and minds means encircling, counting, and tagging bodies first.  When a threat is framed in terms of foreign Muslims, then Muslims who happen to be foreigners became special objects of scrutiny and concern.  This is more than a matter of racial profiling at airports.  The U.S. has used various methods against suspicious out-of-place Muslims, from direct military action to pushing states to change their immigration and citizenship laws.  Guantánamo and the CIA prisons are only the most notorious parts of this system; hundreds, perhaps thousands, of people have been shuttled through a shadowy network of U.S. client states, a sort of sovereign underground whose outlines we still can barely sketch.

In some war zones, the U.S. has effectively declared open season on out-of-place Muslims.  During the occupation of Iraq, U.S. administrators rewrote the country’s immigration laws virtually overnight, threatening the legal status of thousands of foreign Arabs living in the country.  The U.S. military later admitted sending at least 200 alleged “foreign fighters” from Iraq to their home countries, a gaping hole in what is publicly known about rendition practices.  Foreign Muslims fleeing the Ethiopian invasion of Somalia in late 2006 were rounded up, transferred, and detained throughout the region at the behest of the U.S. government.


Out-of-place Muslims have been targeted far from active war zones as well.  To take one lesser-known example: I have spent the past five years monitoring U.S.-driven efforts to rid Bosnia-Herzegovina of suspicious Arabs, including former fighters and aid workers who settled down and started families with local women after the war.  In the aftermath of 9/11, Bosnian authorities bowed to intense U.S. pressure to hand over six Algerians (five of them naturalized citizens), despite an order from a Sarajevo court exonerating them of terrorism-related charges.  The Algerians were subsequently sent to Guantánamo.  Six years and several U.S. Supreme Court rulings later, they finally had their day in court.  A George W. Bush-appointed judge in Washington conceded that the allegations against five of them were baseless and ordered their release; the sixth will likely also be transferred out of the camp.

In the meantime, efforts to control out-of-place Muslims within Bosnia-Herzegovina moved in a slightly more gradual and legalistic direction.  Starting in 2006, a special Bosnian government commission – one of whose members was a U.S. air force officer – met behind closed doors and stripped hundreds of people, mostly Arabs, of their naturalizations without trial.  Suddenly, individuals who had lived in the country for decades and raised families there became “illegal immigrants” slated for deportation.  For many Arabs in Bosnia-Herzegovina – especially ex-fighters and others marked as “religious fundamentalists” – repatriation could mean torture, imprisonment, or worse.

GWOT imperatives also dovetailed with European migration concerns as Bosnia-Herzegovina passed a statute providing for the indefinite detention without trial of any foreigner declared a threat to “national security.”  EU funds supported the construction of an immigration detention facility outside Sarajevo, whose first inmates were long-term Arab residents recently deprived of their Bosnian citizenship and declared a threat to national security.  Some are ex-combatants, others not.  After nearly three years of detention without criminal charges on the basis of secret evidence, some of the men have taken to calling the facility “Bosnatanamo.”  Several have cases pending before the European Court of Human Rights (disclosure: I have assisted in amicus curiae litigation in one of these cases).

Yet for all the talk of “foreign fighters,” the overwhelming majority of armed outsiders in places such as Afghanistan and Iraq happen to be soldiers, spies, and mercenaries from the United States.  But the term “foreign fighter” is more than unfortunately short-sighted.  By existing as a separate category implicitly marked as Muslim, it distracts from the equal if not greater “foreignness” of U.S. personnel, and their elevation above legal accountability.

Again, the headlines from Iraq and Afghanistan of mercenary atrocities are hardly exceptional; the problem flourishes in many sites of intervention, with the help of various immunity agreements in addition to sheer political and financial pressure.  In Bosnia-Herzegovina, foreign peacekeepers and contractors have faced no accountability for their own human rights abuses, including involvement in sex trafficking.  One may try to defend this situation by arguing that a uniquely dangerous transnational threat such as the (Muslim) foreign fighter requires such broad immunity laws.  But more interesting is how rarely the juxtaposition even has to be justified, how much it is taken for granted.

Thus, two of the recurring problems of the GWOT legal landscape – renditions and contractor impunity – express the same peculiar logic: The United States ultimately gets to determine on behalf of others how different foreigners are treated, all in the name of defending against interlopers.  The result is that in a country like Pakistan, some foreigners such as Marwan al-Jabur can disappear without ever being charged with a crime, while others like Blackwater contractor Raymond Davis can kill without ever facing trial.

An Empire of Equals

The banishing of some “foreigners” outside the law and the elevation of others above it is a reminder that the Global War on Terror is more than a crisis in the rule of law.  It is also a problem of empire in a post-colonial world.

Ever since it emerged as a “great power,” one key challenge facing the United States has been how to manage unequal relationships with formally equal allies in the “Third World.”  Nation-state sovereignty undoubtedly serves as a check on American discretion, but it also provides a benefit: an alternative address for responsibility.  Kwame Nkrumah described this dynamic in his essay on neo-colonialism: “For those who practice it, it means power without responsibility and for those who suffer from it, it means exploitation without redress.”

Balancing maximum control against minimal responsibility is why the U.S. has for decades relied on its sovereign client states to do much of its dirty work in detention and interrogation.  Journalist Petra Bartosiewicz is one of the few to spot the similarity between this practice and more general neoliberal practices:

Our demand for intelligence far outstrips the supply of prisoners. Where the United States itself has been unable to meet that demand, therefore, it has embraced a solution that is the essence of globalization.  We outsource the work to countries, like Pakistan, whose political circumstances allow them to produce prisoners with far greater efficiency.

The default solution in this set-up for out-of-place Muslims is to eventually put them “back” into place: sending them to their countries of origin to be detained, warehoused, or monitored, with no other state responsible for them.  This is basically how the “extraordinary rendition” program emerged in the 1990s, through collaboration between the CIA and Egyptian intelligence to capture and forcibly return the overseas cadres of armed opposition groups such as al-Jama‘a al-Islamiyya and al-Jihad al-Islami.

The opening of extraterritorial prisons directly run by the U.S. after 9/11, such as Guantánamo and the CIA “black sites,” were variations on this theme, likely prompted by two immediate factors: First, Afghanistan (unlike Iraq) lacked a strong pre-existing state apparatus that could effectively control large prisoner populations.  Just weeks before the first detainees arrived in Guantánamo, a prisoner uprising near Mazar-i-Sharif, Afghanistan led to the massacre of hundreds of captives and the death of a CIA officer.  Second, Washington was undoubtedly anxious about the reliability of some of its clients, especially Saudi Arabia and Yemen.  Interestingly, very few citizens of Washington’s most stalwart clients – Egypt, Jordan, and Morocco – ever arrived in Guantánamo, and were likely sent directly to those countries’ torture chambers.

By the middle of the past decade, however, it was clear that large-scale incarceration of even out-of-place Muslims was better left to client states after all.  As Henry Crumpton, former State Department counterterrorism coordinator, framed the problem:

All of us in the discussion agreed that Guantánamo was not working for lots of reasons and that the simplest way to proceed is that when you have foreign fighters captured you send them back home. … If you don’t send them to Gitmo, and the C.I.A. doesn’t want them, then where do you put them?

Marwan al-Jabur’s multi-prison-stop itinerary “home” to the Gaza Strip – a stateless space he’d hardly ever been to – is the exception that proves this rule. The logic of relying on sovereign clients runs into a wall, so to speak, when the subject is a stateless Palestinian.  The West Bank and Gaza Strip are the only patches of inhabited territory that are still not formally claimed by any recognized nation-state.  Ruled by a regime that refuses to define its own international borders, these territories remain at the edges of jagged and bloody frontiers that are simultaneously geographical, temporal, and political.  Without a readily available proxy sovereign to take charge of him, Marwan al-Jabur was passed between the U.S., Pakistan, Saudi Arabia, Jordan, and Israel, a kind of unclaimed parcel with no return address, dumped in the juridical equivalent of a dead-letter office.

To Hold No Bodies

 For many, the struggle against the Global War on Terror in the Bush years came to be narrowly identified with the campaign for the writ of habeas corpus – Latin for “you have the body.”  The Obama administration appears to have sidestepped this proceduralist call by deciding that henceforth, when it comes to out-of-place Muslims, it will strive not to hold any bodies at all.

The problem with captives, no matter what jurisdictional shell games one wishes to play, is that they are ultimately a burden.  Aside from maintaining the Bush-era prisons at Guantánamo and Bagram, the Obama administration has recalibrated the balance between power and responsibility through two moves.  First, a return to the quieter and more time-tested approach of using client states to hold out-of-place Muslims (either where they live or where they are from) outside apparent U.S. responsibility.  Second, a shift in emphasis from capture to execution, using drones, cruise missiles, and commandos in Pakistan, Yemen, and Somalia.

Both of these tendencies have played out in the media spotlight in recent weeks, with the killing of Usama bin Ladin.  Initial reports suggested that his widow will be interrogated in Pakistan and repatriated to Yemen, safely deposited back into her (national) place.  On the other hand, bin Laden’s body was disposed of at sea, an eerie but unsurprising fate for a man who had been long ago rendered stateless and cast outside of the community of nations.  That these two destinies – return or total erasure – would appear as the only logical ones is a reminder of how unsettling the out-of-placeness of Muslims remains in the imaginaries of post-colonial empire.

* This article – greatly strengthened by comments from Beena Ahmad, Amna Akbar, Samar al-Bulushi, and Zuzanna Olszewska – draws from research conducted for a longer study, “A Universal Enemy?: ‘Foreign Fighters’ and Legal Regimes of Exclusion and Exemption Under the ‘Global War on Terror’” in the winter 2010 issue of the Columbia Human Rights Law Review.

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