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Author: Mostafa Haqqani-Fazl

• abstract

The book The Jurisprudential Foundations of Espionage and Counter-Espionage is a summary and compilation of the jurisprudential discussions by Shaykh Najm al-Din Tabasi at the Islamic seminary in Qom. This work was printed and published after being reviewed and corrected by him. In this book, jurisprudential discussions regarding espionage are presented in five sections. The author uses Quranic verses, narrations, and historical texts to present and analyze the different aspects of espionage. After defining and categorizing various types of espionage, the author proceeds to detail the ruling (hukm) for each category. Throughout the main discussion, related secondary issues concerning espionage have also been addressed.

A Brief Look at the Book

The Jurisprudential Foundations of Espionage and Counter-Espionage, authored by Najm al-Din Moravveji Tabasi, is a scholarly work within the domain of political jurisprudence. It was published in collaboration with Markaz e-Takhasussi e-Aimmah al-Athar (A). This book is a transcript and compilation of the jurisprudential discussions by Shaykh Najm al-Din Tabasi at the Islamic seminary in Qom, which has been published after his review and revision. This work aims to study the rulings regarding espionage — which has been categorized into several types in the text — through an examination of relevant narrations and the legal rulings of jurists from both sects (Shia and Sunni), along with issues related to it. These issues include matters such as committing unlawful acts for the purpose of espionage, the status of agreements and granting protection to spies, torturing spies, extracting confessions from them, and interpreting the legitimacy of espionage based on narrations concerning the appointment of an Arif (a recognized leader or expert in a community) and Naqib (a representative or head of a tribe).

About the Author

Najm al-Din Maruji Tabasi (born 1334 SH ) is a professor of Dars al-Kharij (advanced studies in Islamic jurisprudence) at the Islamic seminary of Qom. He has authored over 27 works, some of which adopt a jurisprudential approach. His notable works include: - Al-Dirasat al-Fiqhiyya fi Masa'il Khilafiyya (Jurisprudential Studies on Controversial Issues) - Al-Zawaj al-Muwaqqat 'inda al-Sahaba wa al-Tabi'in (Temporary Marriage Among the Companions and Followers) - Al-Irsal wa al-Takfir bayn al-Sunna wa al-Bid'a (Excommunication Between Tradition and Innovation) - Tab’id dar Islam (Exile in Islam) - Huquq e-Zindani wa Mawarid Zindan dar Islam (Rights of Prisoners and the Conditions for Imprisonment in Islam) - Mawarid al-Sajin fi al-Nusus wa al-Fatawa (Cases of Imprisonment in Texts and Jurisprudential Rulings)

Structure of the Book

The book The Jurisprudential Foundations of Espionage and Counter-Espionage is organized into five sections (maqām), with each section further divided into chapters, depending on the depth of the discussion, and presenting various topics. First Section: The Meaning of Espionage In this section, the linguistic and terminological meanings of espionage are examined.

Second Section: Types of Espionage and Spies Here, the author categorizes espionage into five types and classifies spies into two categories.

Third Section: The Ruling on Espionage This section is presented in two chapters: 1. Espionage benefiting disbelief (kufr) and in its interests. 2. Espionage benefiting Islam and the Islamic government. The first chapter includes three discussions:

a) The ruling on a Muslim spy according to the fatwas of Shia jurists.

b) The perspectives of Sunni jurists.

c) The jurisprudential evidence for the ruling.

Fourth Section: On Arif and Naqib Can narrations that encourage the appointment of an Arif (recognized leader) and Naqib (representative) be used to justify the permissibility of espionage?

Fifth Section: Committing Prohibited Acts During Espionage Is it permissible to commit sinful acts in the process of espionage?

Meaning and Types of Espionage

In the first section, the author discusses the linguistic meaning of Tajassus (espionage) using various lexical sources. After examining the different definitions, the author concludes that Tajassus refers to investigating hidden matters, whether for personal knowledge or other purposes, whether with good or malicious intent, and whether the matters themselves are virtuous or evil. In the second section, espionage is classified based on its benefit or lack thereof: 1. Investigating personal affairs without any rational motivation (i.e., meddling). 2. Espionage driven by corrupt intentions. 3. Espionage with a rational and legitimate purpose. The third category is further divided into:

a) Espionage for a necessary purpose, such as preserving the Islamic government.

b) Espionage for a commendable purpose, such as identifying qualified individuals.

Regarding spies, the author categorizes them into two types, irrespective of their religion (Muslim, dhimmi—non-Muslim under Islamic protection, or harbi—enemy combatant): 1. Spies working in favor of the enemies of Islam. 2. Spies working in favor of the Islamic state.

Espionage Benefiting Disbelief (Kufr)

The Ruling on a Muslim Spy

In this section, the author discusses the ruling on a Muslim spy under three main headings. 1. Fatwas of Shia Jurists: After presenting various opinions, the author summarizes that, according to Shia jurists, a Muslim spy is generally not subject to execution. However, some contemporary scholars have ruled for the death penalty in cases where espionage is considered muharaba (waging war against God and the Islamic state) or ifsad (corruption).

2. Opinions of Sunni Jurists: The author surveys a range of Sunni views, which include imprisonment, execution, or corporal punishment for a Muslim spy. Ultimately, the predominant Sunni opinion favors imprisonment.

3. Jurisprudential Evidence: The author presents five pieces of evidence:

- Shia Narrations (the narration about Hatib, the actions of Imam Hasan, and a narration from Da'a'im al-Islam).

- A Sunni Narration from Sunan Abi Dawood: In this narration, the Prophet (PBUH) initially ordered the execution of a spy, but when it was revealed that the spy was Muslim, the Prophet pardoned him.

- A Historical Account: The exile of Hakam ibn Abi al-'As, reportedly for espionage. In the first three evidences, after questioning the authenticity and the implications of the texts, he concludes that there is no reliable evidence to justify the execution of a Muslim spy. Based on the principle of precaution and available evidence, he argues that the appropriate ruling for a Muslim spy is ta'zir (discretionary punishment). Regarding the Sunan Abi Dawood narration, the author contrasts it with another narration (Musannaf), where the term “ayn” is absent. He then discusses two scenarios: one where the individual was Muslim during the espionage, and another where the person converted to Islam after committing espionage. In both cases, he finds the narration insufficient to justify execution. As for the historical account of exile, the author believes that if it is proven that the reason for Hakam's exile was espionage, exile could be classified as a form of ta'zir. The author does not provide a definitive conclusion, however from the points made, it is clear that he aligns with the rulings of Shia jurists.

Ruling on a Non-Muslim Spy

There is no explicit ruling in Shia jurisprudence concerning non-Muslim spies, but historical and maghazi (early Islamic battles) accounts from Sunni sources suggest that the Prophet (PBUH) ordered the execution of non-Muslim spies. However, these narrations are not considered authoritative for deriving legal rulings, and they are included in the book mainly to provide a comprehensive discussion. The author then presents two narrations from the historian al-Waqidi, which indicate that the ruling for a non-Muslim spy is execution. Nevertheless, in certain circumstances, a ruler may pardon the spy for strategic reasons and might even use the spy to harm the enemy. According to these narrations, it is also permissible to threaten or physically harm the spy to extract a confession.

The Dhimmi Spy and the Musta'min Spy

In the context of non-Muslim spies, the author explores two jurisprudential branches: a) Does espionage violate the Dhimmah (pact of protection for non-Muslims under Islamic rule)? There are two opinions: 1. Espionage immediately breaks the Dhimmah covenant, turning the Dhimmi into an enemy (Harbi), who is no longer protected. 2. It depends on the terms of the Dhimmah agreement. If refraining from espionage is one of the conditions, then their blood is forfeit. However, the conditions of the Dhimmah contract are not fixed, meaning that the ruler, based on his discretion, can add or remove certain conditions. The author also refers to various Sunni opinions, including execution or taking the spy as a prisoner. He concludes this discussion with a citation from Ahmad ibn Yahya al-Zaidi's Uyun al-Azhar, which states: "The enforcement of legal punishments (hudud) is solely in the hands of the Imam... including the execution of spies."

b) The Ruling on a Mu'ahid or Musta'min Spy

The ruling on a spy who is a treaty-holder (Mu'ahid) or a person under temporary protection (Musta'min), someone who enters Islamic lands under a protection agreement but not to reside there permanently: In this section, the author presents the views of Shia scholars, who state that if the Imam finds that the spy has committed an offense punishable by hudud (legal punishment) or ta'zir (discretionary punishment), the appropriate punishment is carried out. However, if no legal claim is established against the spy, they are sent back to their homeland. Moreover, Muslims are permitted to prevent an enemy spy from returning to their own territory.

Torture of Spies and the Validity of Confession Under Torture

Regarding the discussion of torturing spies and the validity of confessions obtained under torture, the author presents two viewpoints: one permitting and the other prohibiting torture, as well as rejecting the validity of confessions made under duress. The proponents and their reasoning for each stance are also discussed. Under the section titled “Additional Narrations from Sunnis Regarding Torture,” ten narrations are cited. Afterward, under two headings, "Views of Shia Jurists" and "Views of Sunni Jurists," the opinions of some scholars from are presented. In the end, the author concludes that torturing someone to force a confession from them is unlawful. Such an act constitutes a form of domination or authority over another person, and the basic principle is that no one has authority over another, except when justified by a valid reason (such as necessity or public interest).

Espionage for the Benefit of Islam and the Islamic System

In this section, the author examines three Qur'anic verses and eight narrations (hadiths), offering his analyses of each: In this section, the author presents three Quranic verses and eight narrations, offering his analysis of each: 1. Surah Al-Hujurat, verse 12: The conclusion is that the verse addresses spying for the benefit of disbelievers or, at the very least, in matters of individual and social affairs. The verse forbids investigating hidden matters and faults. 2. Surah An-Nur, verse 19: The conclusion is that this verse does not relate to espionage or have any direct connection to the topic. 3. Surah Al-Anfal, verse 27:

- The context of the verse is debated:

1. A hypocrite informed Abu Sufyan that Muhammad was pursuing him.

2. Some individuals would overhear the Prophet’s words and reveal them to the polytheists.

3. The story of Abu Lubaba during the war with Banu Qurayza.

Based on the first and third explanations, the verse is related to the prohibition of espionage. However, the second explanation pertains more to the prohibition of spreading and disclosing secrets, which may not be entirely relevant to espionage.

Supplementary Discussions

Juridical or Subject-Specific Exception?

Is espionage for the benefit of the Islamic system and national security considered unlawful? If it is not prohibited, is the exception due to a juridical or subject-specific exemption? The author, in response to this question, writes that contrary to his earlier view, this type of espionage falls under a juridical exemption, not a subject-specific one. In fact, this type of espionage still constitutes a form of prohibited espionage. In this type of espionage, expediency merely is not sufficient to lift the prohibition; a stronger expediency must exist because, in cases of conflict, the more important takes precedence (similar to the case of not executing a coerced murderer or exceptions to gossip). Espionage is prohibited, but the preservation of the [Islamic] system is obligatory, and in the presence of conflict and the prioritization of the more significant matter, espionage is permissible; thus, the exemption here is judicial in nature. However, some instances of espionage have a subjective exemption; for example, if they do not fall under the category of probing into the faults of others (such as polling public satisfaction regarding the government) or if they do not involve uncovering hidden matters, like when a person openly commits a sin and does not conceal their wrongdoing.

The Use of Spies in the Lives of the Infallibles

To prove the appropriateness and necessity of this practice, the author presents eight historical and narrational examples from the lives of the Infallibles. These instances demonstrate either direct involvement in espionage, or sending of spies or approval of spy operations. Any objections to these texts do not pose a problem, as their abundance has reached the level of certainty, confirming that some of them were indeed sanctioned by the Infallibles.

Sunni Narrations on Military Affairs during the Prophet’s Time

In this section, the author lists fifteen narrations that show how the Prophet (PBUH) used intelligence provided by others about enemy movements during wars and different circumstances, or how he himself ordered espionage. The author highlights the narration from Ibn Hisham as one of the most significant examples. This narration refers to when the Quraysh abandoned their siege of Medina and retreated toward Mecca. The Prophet (PBUH) instructed Imam Ali (A.S) to spy on them to ensure their intentions. The Prophet told Imam Ali: “If they are riding camels and their horses are loose, they are headed for Mecca. But if they are riding horses and their camels are untied, they intend to return and attack.” This is because the Infallible (the Prophet) orders espionage, and another Infallible (Imam Ali) is tasked with spying. Furthermore, the author believes that the narration from Ibn Sa'd (in the expedition of Usamah ibn Zayd ibn Harithah, the Messenger of God instructed Usamah: “Take guides with you and send out spies ahead of you”) conveys a meaning that goes beyond mere permissibility of espionage; it indicates its obligation.

The Role of Arif and Naqib

In the fifth section of the book, the author discusses the terms Arif and Naqib, beginning with their linguistic meanings. The word Naqb refers to searching for secrets and hidden information, and a Naqib was someone in charge of a tribe who was knowledgeable about its affairs and of the means to recognize them. The Arif, on the other hand, was a person responsible for the affairs of a group or tribe, aware of their conditions, but of a lower status than the cheif. The author also references a hadith from Imam Ali (A.S.) where Arraf with a particular pronunciation refers to an astronomer or priest. The author then addresses the statement of Ayatollah Kharazi, who asserted that “the numerous narrations encouraging the designation of an Arif and Naqib indicate that inquiry, in principle, has been encouraged.” The author presents two points: 1. The term Arif means caretaker and does not imply inquiry or espionage. 2. The reasoning based on these narrations requires further contemplation, as the admonitory narrations (five in total) do not prohibit undertaking this responsibility but rather highlight its serious nature. It is also possible that the term Arif in the prohibitive context refers to a astronomers or priests. Moreover, the encouraging narrations (six in total) cannot be used to support Ayatollah Kharazi's claim. If there were clear evidence that these narrations endorse the appointment of Naqibs, then relying on them to validate the legitimacy of espionage and inquiry is acceptable.

Committing Forbidden Acts during Espionage

In the sixth section of the book, the author raises a key question: “If espionage requires committing forbidden acts, is it permissible to engage in them?” The author notes that it has been stated that if the only available means is a forbidden act, then engaging in such acts can be justified based on certain evidences and texts. He then presents these evidences and critiques them.

Notes on the Book

1. The book is a transcription of Najm al-Din Tabasi’s advanced jurisprudence class (Dars-e-Kharij), penned by one of his students. Perhaps for this reason, various side discussions and unrelated topics are frequently raised throughout the book. In different sections, the author digresses from the main topic into secondary discussions as deemed appropriate. For instance, while narrating a tradition from Tabarsi’s works, the author critiques the last part of the narration that states, "Perhaps God has turned His attention to the people of Badr and forgiven them, telling them: 'Do whatever you wish, for I have forgiven you'" (p. 39). He then brings in Allama Tabatabai’s response to this objection, which takes up about seven pages of the book. Additionally, the author introduces discussions on the narrators (rijal) whenever names of individuals are mentioned, which seems unnecessary. Similarly, when discussing the chain of narrators for one tradition, a biographical discussion is initiated due Nofali being accused of extremism (ghuluw), leading to a lengthy discussion on the Qom scholars’ view on extremism, followed by criticisms of their stance (pp. 88–93).
2. The presence of these tangential discussions disrupts the cohesion of the book, leaving the reader with a less structured and consistent narrative. As a result, the flow of the discussion is sometimes lost, and the reader may occasionally feel that the discussion lacks a clear conclusion.
3. In many instances, the author could have included topics that are less relevant to the main discussion as footnotes or endnotes instead of integrating them into the main text.
4. The author, in discussing the first verse concerning the permissibility of espionage for the benefit of Islam and the Islamic system, argues that the verse on espionage is not general but specifically refers to espionage benefiting the enemy. He interprets "suspicion" in the verse to mean acting on and avoiding backbiting and slander (which do not benefit Muslims), thus restricting the prohibition of espionage to cases that do not benefit Muslims. Therefore, no conflict arises here, as this matter is categorically excluded, and from the outset, espionage for the benefit of Muslims is not included in the type of espionage that the verse addresses; rather, it is specifically excluded and is not prohibited, so no conflict occurs (p. 133). Here, in addition to the reasoning seeming inadequate, the author later states that contrary to our previous opinion, it appears that the exception is a juridical one, not a subjective one. In fact, this type of espionage is one of the instances of prohibited espionage (p. 157).
5. In discussing the torture of spies and the validity of confessions obtained under torture, the author refers to two narrations that were related to cases where someone was concealing information; however, it seems that the narrations generally prohibit torture. However, he concludes that narrations prohibiting torture are absolute and, based on this, deduces that torture for extracting confessions from spies is forbidden.
6. None of the ten narrations in the section titled "Additional General Narrations on Torture" directly concern espionage; rather, they are general or related to theft and failure to pay tribute or taxes.
7. The author could have integrated the discussion on Arif and Naqib under the broader section on narrational evidence regarding espionage. Similarly, the topic of committing forbidden acts during espionage could have been treated as a subsidiary issue within the legal rulings on espionage, rather than being assigned separate chapters or sections.