As a high schooler at the Sylhet Cadet College, Rais had a public-speaking class every Thursday. All he had to do was stand and say something for three minutes, maybe five max. He was so shy then that he could barely manage. Now Rais found himself able, against all odds, to speak extemporaneously without any trouble. “It came automatically,” he said. “I didn’t push myself to go and have to prepare myself. It was a flow; it came out of me.”
Rais learned to be unfazed by the cameras and microphones jammed in his face. Halperin noticed that his protégé stopped needing notes. He began to trust in the power of his story. He mastered the politician’s art of foreswearing irony and irreverence, revealing nothing of himself but his devotion to the cause. He learned to open sentences with “Well,” to buy himself that extra second. He started pushing his hands out in front of him when he spoke, to underscore a point. In his pursuit of holy mercy, he had acquired something of the American hustler about him.
While most of his audiences were totally sympathetic, Rais was tested when, on the final stop of the tour, he met a skeptical, even faintly hostile, crowd in London.
The event was in the evening at the West London Islamic Center in Ealing. The large rectangular room was packed with fellow Muslims—perhaps a hundred or more—seated in two clusters of chairs. A few women sat in front, but the room was dominated by young men. With hardly any seats remaining, some of them were standing by the windows. It was the first time since the campaign was launched that Rais was addressing kin of the faith. He stood at a table with a lectern and began to speak. When he got to the part about forgiveness, justifying it in the name of his God, their God, Halperin remembers a man in the back raising his hand. The man, without being called on, began to talk, challenging Rais, who at first didn’t acknowledge him. Halperin recalled the moment like this: “He said, ‘Who are you as a Muslim to forgive a Christian? What right do you have to do that?’ Then this man went off on American policy in the Middle East and ‘Where is the forgiveness for all the Muslims that Americans were killing or had killed in Iraq and Palestine and Afghanistan?’ ”
Halperin added, “When he finally stopped, I remember, he was just angry and emotional and loud. And Rais said, ‘I’m not an Islamic scholar. I know that the Koran teaches forgiveness.’ And he recited a passage or two, and that obviously was not the answer the man wanted to hear, and he started interrupting Rais again as he stood up and walked out.”
Rais remembered it this way: “I thought it would be easy to share my story of forgiveness with them and didn’t have to explain the message of forgiveness in the light of Islamic teachings. But at the beginning, some in the audience thought I was speaking on behalf of the U.S. government.” He could understand their feelings but tried to steer them otherwise: “I told them my trip is completely personal to share my own story; it’s not a politically motivated trip.”
When the time came for questions, hands soared. Not every questioner was supportive. “It was the only audience where that large a percentage of the questions were critical of him for his act of forgiveness,” Halperin said. He figured it was 50-50 positive-to-negative; Rais estimated 70-30. Some people rose and told Rais that they totally disagreed with him about forgiveness, for many of the same reasons as the angry man who walked out, but that they respected what he was trying to do for the faith. When the event finished, Halperin was astonished to see virtually the entire audience line up single file to shake Rais’s hand. Some just thanked him; others stopped and talked awhile. Whatever they thought of his campaign, several of them told Rais, he had placed true Islam on display for the world—a religion of love and mercy, not bloodlust.
“Thank you for doing this,” they said over and over, shaking Rais’s hand and that of his Jewish-Texan-American sidekick. A few of them, Rais said, asked for his autograph.
UNTIL THAT MOMENT, Rais and his team had followed two interlocking strategies: to move public opinion to their side, and meanwhile to petition the Texas authorities to either commute or delay Stroman’s execution. The first strategy was working, but the second was having little effect. They had gone to the DA, had contacted prison officials to seek mediation with Stroman, had asked the Texas Board of Pardons and Paroles to recommend clemency to Governor Rick Perry. Each path dead-ended.
“Not only in our state in Texas but around the country and around the world, people were overwhelmingly in support and awe of his actions or his desire to save Mark Stroman’s life,” Halperin said of Rais. “They supported him wholeheartedly. So in the court of public opinion, we seemed to be winning. But we weren’t gaining much ground with the death-penalty apparatus here in the state of Texas.”
At Reprieve, Clive Stafford Smith was convinced that Rais had a compelling legal case in America if he wanted one. The asking-nicely strategy was failing, and as Rais returned from Europe, Stroman had less than two weeks left on the planet, barring some miracle. Reprieve suggested that Rais file a lawsuit claiming that he had been denied his right under Texas law to victim-offender mediation. Stafford Smith saw in him, as Halperin did, an unusual commando in the long-running war against capital punishment. Rais agreed with the plan.
He researched his options for a lawyer and came upon one named Khurrum Wahid. Wahid was a high-profile defense attorney based in Miami and had made a name for himself representing Muslims caught in the antiterror dragnet. Like Stafford Smith, he had gotten himself involved with Guantánamo cases, which wasn’t necessarily the association Rais needed for his campaign. Wahid offered to take the case for free, though, and they had a deal.
On Wednesday, July 13, a week before the execution date, with Stroman’s team working in parallel on more conventional appeals, Rais went to court with the help of his new attorney. He did so with characteristic ambition, filing a lawsuit that would come to be known as Bhuiyan vs. Perry. That very week, the state’s square-jawed charmer of a governor, Rick Perry, was much in the news. A flailing Republican Party, worried by the ongoing presidential contest, was looking to transfuse fresh blood into the race. Perry had said he was thinking about it. He had recently announced that he would be going ahead, despite protest, with his massive prayer event for evangelical Christians at the Reliant Stadium in Houston. He had also let it be known, lest anyone think he had fewer foreign-policy bona fides than Herman Cain, that he and his wife had just lunched, in Austin, with former President and Mrs. Musharraf of Pakistan. In a month’s time, he would be a full-fledged presidential candidate, and even a front-runner. And in that moment when his star was beginning to rise over the country, he became a defendant in an obscure case in state court. The plaintiff was Rais, whose lawsuit made some of the more unusual arguments ever to land before a Texas judge.
“THE MEANING OF this Shariah law is not bad,” Rais said. “It’s really, actually, good. But we people in this country, we give the word a bad name.” Across the country, fear of Shariah was ascendant. Just in the previous year or so, half of American states were said to have considered formally prohibiting judges from relying on Shariah, the ancient Islamic legal code, or other foreign law—even though actual evidence of judges doing so was hard to come by. Oklahoma had amended its state constitution to bar Shariah from its courts. Texas was especially hostile terrain for arguments citing Shariah. But Rais was a serial survivor who wrote his own rules, and he wanted his lawsuit not only to save a life but also to bend perceptions of Islam and, specifically, of Shariah. He called it “taking back the word.” If you used the word in the good way before a court, maybe people would begin to hear it as Rais did.
So Rais’s legal team filed a few dozen pages of briefs that suggested, among other things, that Governor Perry should consider what Islamic law had to say about the situation.
As if to set the tone for its arguments, the first item in the lawsuit’s “Statement of Material Facts” was this: “Plaintiff is a United States citizen who is Muslim.”
In the usual manner with such cases, the strategy was to throw all kinds of argum
ents at the judge and pray that one would stick. Broadly, though, the lawsuit advanced three claims in support of its plea that Stroman not be executed the following week.
The first was the most conventional, and where a less gumptious plaintiff might have ended. The suit noted that Article 56.02 of the Texas Code of Criminal Procedure lays out certain victims’ rights, of which one is “the right to request victim-offender mediation coordinated by the victim services division of the Texas Department of Criminal Justice.” Rais argued that no one had informed him of this right around the time of the attacks, and that, once he learned about it, he was thwarted from making use of it. “Plaintiff is a victim,” the lawsuit said. “As such, he did not want to rush into a public spotlight. Had he only known his rights, he would have been quietly pressing for his rights for a long time.” The suit said Rais needed to meet Stroman—and, more than that, to succeed in changing him—in order to heal: “Plaintiff’s own ability to reach a cathartic point in his own recovery depends very much on his being able to make full efforts to help Mark Ströman to reach his full potential, and to overcome the very negative lessons that he was taught as a child.”
The second line of argument was that Rais was being denied his constitutional rights as an American because of the state’s refusal to honor his right as a Muslim to offer mercy. “As a Muslim, Plaintiff is of the belief that when he forgives or promotes mercy for his attacker, the government should no longer have a duty or a right to exact the ultimate punishment upon Mr. Stroman,” the lawsuit said.
Rais’s brief offered a tutorial in Shariah law to make his point: “The first lesson that might come as a surprise to many people is that Islamic law does not call for mandatory killing of everyone who commits murder, or the chopping off of hands at the first opportunity. Rather, while murder is obviously strongly condemned, mercy is vigorously upheld.” The brief then gave this quotation from the Koran, chapter 5, verse 32: “If anyone kills a … it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people.” The quotation’s stray “a” followed by that ellipsis was easily overlooked, but if the judge had Googled it, he might have been surprised. The “a” was the beginning of a clause that Rais’s legal team redacted, and that clause read: “any person who had not committed murder or horrendous crimes.” The full version (in a slightly different translation from that in the legal brief) read: “Anyone who murders any person who had not committed murder or horrendous crimes, it shall be as if he murdered all the people.” Rais was right about the Koran calling for mercy, but this citation didn’t apply to murderers like Stroman.
More solid support came from the famous “eye for an eye” passage, in chapter 5, verse 45: “The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation. But whoso forgoeth it in the way of charity it shall be expiation for him.”
The lawsuit argued that, in light of these passages, it was Rais’s religious duty to seek mercy. It acknowledged that this was an uphill battle: “Perhaps it has been true in Christian society at various times, but the process of showing mercy is more integrated into the Islamic legal tradition today than it is in many Western legal systems.” The suit went further in suggesting that Rais would suffer religious discrimination if Texas denied him the chance to exonerate his attacker: the state often listens to victims whose beliefs lead them to seek vengeance, it argued, but ignores those whose faith calls for mercy. The suit also claimed that Rais was being denied equal treatment under the law because Texas granted mediation to victims of lesser crimes but not as readily to those ensnared in capital punishment cases.
The third, and perhaps most surprising, argument was the suggestion that Texas revert to the good old days when victims and perpetrators, without too much meddling from the state, resolved their differences bilaterally. This argument, too, emanated from a reading of Shariah law. It was an idea that endured in many Islamic societies, where victims have some influence over a perpetrator’s punishment, with an option in some cases to reach a financial settlement or grant mercy instead of sending the accused to prison or death. Bilateral justice was also, of course, how an earlier era’s disputes were resolved right here in Texas, as shown in all those movies that had made Abida fear the place years before. The lawsuit argued that in the shift away from a direct victim-perpetrator connection, the virtue of mercy had fallen away. And it had an interesting source of support: a growing movement in the United States itself in favor of so-called restorative justice, of which one component is a greater emphasis on the victim-perpetrator relationship.
“The move towards recognizing victims’ rights has come about primarily in the last quarter century, representing a shift back towards the way that the judicial system used to operate when the United States was founded, and for some time afterwards,” the lawsuit said. It was quick to distance itself from a return to simple vigilantism: “Obviously society must excise corruption from the system of justice; it may well be that society should discourage the cycle of revenge; but there was never any room for the criticism of victims who were interested in restorative justice, or who advocated compassion.” This the suit wanted to change, and Shariah law, it submitted, offered a way forward. It offered an elaborate explanation of the rules of diyat, or blood money: a practice under Shariah law of compensating a family for its dead relatives, often as a substitute for prison time or execution. (Incidentally, and unbeknownst to Rais’s team, four months earlier, in a court in Lahore, Pakistan, a jailed CIA officer named Raymond Davis had been freed by diyat: 200 million Pakistani rupees in exchange for forgiveness from the relatives of the men he shot.)
So Rais, a victim of an American version of tribal law (“We was wanting justice,” Stroman had said), was now reaching back to the ideas of his own, Islamic tradition of tribal law to seek support for showing Stroman forgiveness. A violent notion of bilateral justice—justice unmediated by the state—was being met by a nonviolent one. Rais’s arguments could come across as a call for kangaroo justice, and yet they had many strange echoes. They resonated with Stroman’s idea of taking matters into his own hands, but also with theories gaining ground in the restorative justice field and even with the movement across the nation, and in Texas especially, toward more robust victims’ rights. But it was in Shariah law that the idea had its amplest expression, the lawsuit said.
“In Islam,” the lawsuit said, “the victim is hugely respected. This has not been Plaintiff’s experience of the judicial process in Texas to date.”
THAT OLD “TRUE AMERICAN” manifesto, which Stroman had loved and circulated from prison, declared: “My uncles and forefathers shouldn’t have had to die in vain so you can leave the country you were born in to come here and disrespect ours and make us bend to your will.” But a man whose hours are dwindling can become flexible, or at least allow his lawyer to be flexible on his behalf. Which is how Mark Stroman went on record calling for the application of Shariah law in a Texas court of law.
As Rais pursued his case, Stroman’s lawyer, Lydia Brandt, was mounting her own appeals. The two sides were collaborating, and it showed: certain arguments appeared in similar form in both sides’ filings, so that the two became almost indistinguishable at times. The two litigants, who had faced each other in hostility all those years ago at the Buckner Food Mart, now copied ideas from each other’s documents, plagiarizing shamelessly, as if to underscore that they now played for the same team.
One of Stroman’s briefs spoke, as did Rais’s, of reviving what was lost in the evolution of modern justice systems: “In enforcing the criminal law, the judicial process has evolved over hundreds of years primarily to replace vigilantism and the terrible cycle of revenge. Society gradually sought to place limitations on the degree of punishment so that a blood feud between two families would not continue wreaking havoc for generations.” However, the brief said, this process had perhaps gone too far, s
hutting out a victim’s voice when that voice wants to show kindness instead of anger: “There is nothing illogical about a system where society does not always fulfil the victim’s desire for revenge, but always respects the victim’s desire for mercy.”
Perhaps the most unusual strategy Stroman’s lawyer employed was attempting reverse psychology on the Texas judiciary. Failing to spare Stroman’s life, she argued, would amount to Texas accepting the moral superiority of Shariah law—and we can’t let that happen, can we now?
“It is perhaps ironic, given the 9/11 spark that precipitated these tragedies, that Islamic (or Shari’a) law would not permit executions under these circumstances,” Stroman’s brief said. “The essence of a judicial process is that the victims cannot unilaterally demand vengeance—the state procedure is placed between the perpetrator and the victim to avoid the cycle of revenge. However, at the other end of the pendulum, there is no moral basis for suggesting that the victims cannot exercise mercy. If they called for mercy in an Islamic court, their wishes would be respected.”
The brief opined, “It would be sadly ironic if the law of Texas were unable to show respect equal or greater to Shari’a law for a compassionate victim of crime.” Stroman’s lawyer now went a step further, arguing that it was unconstitutional to execute Stroman because doing so would admit American inferiority: “The U.S. and Texas Constitutions do not permit the execution of a person when the victims oppose it because the law of the United States and of the state of Texas is not somehow inferior to Islamic or Shari’a law.”
Mark Stroman had to be saved, in other words, because not saving him would admit that his beloved country was second-best.
Bro
This was, Stroman was certain, either the end or the start. “If I’m allowed to live past the 20th of July, I will take that as a sign from God that my work has just begun,” he wrote on his blog. As the days dwindled, he was full of motion—corresponding, thanking, bloviating, advising, giving interviews, taping statements for his loved ones, welcoming visitors.
The True American: Murder and Mercy in Texas Page 24