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The Courts

"When Thomas Bratcher asked Malcolm X to testify as an expert witness in the case of SaMarion v. McGinnis, he articulated the relationship between incarcerated Muslims and those outside through the metaphor of war: "The fighting man cannot win a war without the moral support of the home front." Black prisoners saw the courts as a breach in the walls, which allowed them to express their claims before the world outside. Jacobs wrote that "it is as if the courts had become a battlefield where prisoners and prison administrators, led by their respective legal champions, engage in mortal combat." Prisoners used testimony as part of what Berger has called "a strategy of visibility" to make their struggles known. Sostre later described the court as "an arena. It is a battlefield - one of the best. We will use these same torture chambers, these same kangaroo courts, to expose them." Testifying has its political roots in slavery and is central to the Black feminist tradition. As Danielle McGuire argues regarding the struggle against sexual violence in the civil rights movement, "testimony must be seen as a form of direct action and radical protest." Prisoners were fighting on the front lines, with courts as their battlefield, supported by a home front of Muslims on the outside. Writ writing and testimony were what Sostre called their "most essential weapons."

When Commissioner McGinnis took the stand as a defendant before U.S. district court judge John Henderson in October 1962, SaMarion was the only plaintiff from the earlier case of Pierce v. LaVallee. The trial differed in several significant ways from the one that had emerged from Clinton two years earlier. The Pierce ruling had not brought about the changes the NOI [Nation of Islam] had hoped for. Judge Brennan constantly berated NOI attorney Edward Jacko for trying to expand the case beyond the initial complaint regarding denial of access to the Quran, at one point even admonishing him to be a "good little boy." As Brennan saw it, the case had been resolved before it came to trial. He told Jacko "You are asking to purchase the Koran. Now, the Warden says you can have the Koran. Well, what is there left for me to litigate?" Jacko concluded with dismay. "I think that is the crux of the case." However the plaintiffs sought weekly congregational services conducted by Buffalo's Robert X Williams, correspondence with and visitation from ministers and access to prayer books and the Messenger magazine. They meticulously documented their losses of good time credit and years in solitary confinement in order to demonstrate religious discrimination.

The Pince case demonstrated the steep challenge for prisoners during the era when the courts followed a hands-off policy. Judge Brennan did not believe the judicial branch should be involved in matters of prison discipline to begin with. He opined:

This Court didn't put these men in jail. This Court didn't commit the crime for which they were convicted. This Court didn't try them. This Court didn't sentence them. This Court didn't control them, so that you must turn somewhere else to settle those other things.

He argued that naming the warden of Clinton had little bearing, since he is "hot free to run his prison as he likes," and suggested that if the plaintiffs "wanted something, to get a decision that would bind them, No. 1, you would have to bring in the Department of Correction." Perhaps heeding this advice, the men added Commissioner McGinnis to the SaMarion suit.

The state defense attorneys raised the ante by claiming that members of the Nation of Islam were not in fact "true members of the religion of Islam." Calling the tenets of the NOI "preachments of hate [and] race prejudice," Deputy Attorney General Robert Bresinhan outlined what would become the standard argument of the state against the practice of Islam in prisons: that the NOI was a political group acting in the guise of religion and posed clear and present danger to the prison as an institution. He told the court:

It is our position that every activity in a prison must be supervised and it is our position that religion, the guise of religion, does not give a prisoner or anyone else the right to come in and violate those security rules.

As court-appointed attorney Richard Griffin later recalled, since religious orthodoxy was taking center stage, it was "clear that I needed an expert witness and I decided to contact Malcolm X to see if he would testify."

Bratcher wrote Malcom X optimistically before the trial that

This trial promises to be the last one in the Muslims fight for Religious Freedom. This writ is taken out on behalf of the 60 Muslims in Attica Prison. This writ covers all grievances. We have compounded so much evidence - over a period of two years. - against the defendants - Paul D. McGinnis and Walter H. Wilkins-that under its magnitude, these two tyrants must fall.

In its breadth, testimony, and implications for future policy, SaMarion surpassed previous cases in its capacity to decide the future of the Nation of Islam in prisons.

Bratcher correctly anticipated the state's defense in his letter to Malcolm X a year before the trial:

From the Attorney General's answer to my writ, I can see that his main argument is going to be in the presenting of certain publications out of Books, magazines, and papers about the Muslims.... He is going to try and justify the warden's violation of our constitutional rights by submitting these published reports to the court saying that we are preaching hare and we are a fanatical group not recognized by the rest of Muslim World.

As the state began to outline its defense that the NOI was an illegitimate religious group that threatened prison security, Bresinhan's questioning of key witnesses revealed its central strategy: to delegitimize the Nation of Islam's religious standing. Recognizing that "this is the only loophole (Bresinhan] has," Bratcher told Malcolm: "I plan to close this hole up forever. The 'Key' wittness [sic] I am depending on you to 'seal' our victory Minister Malcolm X.

This decision set the stage for a four-day showdown between Malcolm and the state's witness, Columbia University professor Joseph Franz Schacht. While Malcolm admitted openly in court that he had an eighth grade education, had no formal theological training, and could not speak Arabic, Schacht had a "masterly knowledge" of the language, and his book Origins of Muhammadan Jurisprudence - which discussed the historical development and sociological implications of Islamic law-was considered a seminal text in the Western study of Islam. Yet Malcolm weaved around the state's probing questions regarding his expertise. When asked if he had a degree in theology, he replied that if

my understanding of the word 'theological" is correct, the study of God, the science that deals with religion and the study of God, I studied theology in that sense under the Honorable Elijah Muhammad about our God.

When pressed on the length of his education, he replied, "I am still studying." When interrogated on whether or not he was ordained or had a written certificate permitting him to proselytize, he reminded the court that "Jesus sent his disciples forth with no written certificate or anything but his approval." Malcolm's testimony was so convincing that when Schacht took the stand and listed his memberships in the Royal Netherlands Academy and the Arabic Academy in Damascus, and his honorary degree in law from the University of Algiers, the judge responded, "I don't think it is quite thoroughly clear at this time to qualify him as an expert."

After establishing his religious credentials, Malcolm used the courtroom as a stage to articulate his political views. Almost a year before delivering his most widely remembered speech, "Message to the Grassroots," Malcolm explained the difference between a "House Negro" and a "Field Negro" to a federal judge. The former, he emphasized, had no support from the Black community. "He is a leader in public relations, but when it comes to actual following among Negroes, he has no following. That is how you can tell him." When asked about the Nation of Islam's opposition to integration Malcolm pivoted to the difference between racial separation and racial segregation. "Segregation means to regulate or control," he explained. "A segregated community is that forced upon inferiors by superiors. A separate community is done voluntarily by two equals."

The deputy attorney general tried to return to the point that the NOI taught violence and fomented an unsafe environment in prisons, adducing confiscated material that said "To combat the Negro, convert him or annihilate him is the holiest task of the faithful." This statement, Bresinhan reasoned, was clear evidence of the violent aims of the Nation of Islam. Yet again, Malcolm thwarted the cross-examiner. To destroy the "Negro," he explained, "is to destroy the stigma that makes this Negro a Negro. By converting him you annihilate, annihilate the ignorance and lethargy and immorality and things that sort." No Black person calls himself a Negro except those in America he continued. "The white man respects the Black man, he disrespects the Negro." Malcolm and the Nation of Islam sought to destroy a denigrated notion of Blackness defined by white society as "Negro" and replace it with an exalted, self-determined definition signified as "Black."

Malcolm's rhetorical sleight of hand was not evasive but didactic. Judge Henderson addressed Malcolm specifically at one point, remarking his changed understanding of the term "Negro":

I was taught in my early life that the word 'Negro' is a mark of respect to the Black man. I learned yesterday for the first time that there is a preferred name, the Black man, I take it. I am not used to that and when I refer to the Negro in my discussions to you, I am not doing it with a mark of any disrespect. I was always taught and I thought of it as a mark of respect. I want you to understand that.

While Henderson had, in effect, apologized for and excused his racism in the same remark, his high regard for Malcolm's opinion shifted the tenor of the trial. As Griffin recalled, Henderson was "impressed by Malcolm and his testimony" and "respected Malcolm for his clear statements and responses." Bresinhan, likely attempting to curry favor with the judge, then began adopting the phrase "the American Black Man'' in his questioning. Malcolm's testimony, which lasted for three days and constituted over 20 percent of the trial transcript, persuaded the judge to rule that the Nation of Islam was a religious organization. Even more importantly, Malcolm's expression of his political views took center stage and fundamentally altered the discourse and scope of the case.

Malcolm's testimony radically expanded the case beyond the issues of religious counsel, correspondence, and access to literature. It articulated the NOI's critique of civil rights leadership and questions of self-determination, citizenship, and racial identity. In Malcolm's own intellectual development, his trial testimonies played a central role in developing his political ideas and rhetoric. Before the October 1962 trial, he frequently used "Uncle Toms" to deride civil rights spokespeople such as Martin Luther King, Jr., Bayard Rustin, and Roy Wilkins. After the trial, he developed the contrast between the "House" and "Field Negro," which drew parallels between slavery and the present in an incisive but more historically rooted analysis. The courtroom served as a space where the NOI articulated its views and developed its broader critiques of the civil rights movement, the prison system, and American racial liberalism. As Malcolm X's three days on the witness stand demonstrated, prison litigation should not be measured in legal victories alone but should be seen as part of a wider arsenal of political strategies, ranging from fighting for constitutional rights through the law to engaging in direct-action protests such as sit-ins, hunger strikes, and takeovers of solitary confinement, which widened the Black freedom struggle during the 1960s.

- Garrett Felber, Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State. Chapel Hill: The University of North Carolina Press, 2020. p. 77-80

#nation of islam #religion in prison #black freedom struggle #racial segregation #prisoner trials #african american history #those who know don't say #reading 2023 #prisoners' rights movement #prisoner resistance #prisoner organizing #expert testimony #new york prisons #california prisons

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