Welcome to ‘Lawfare' - A New Type of Jihad

The Islamist movement has two wings – one violent and one lawful, which can operate apart but often reinforce each other. While the violent arm attempts to silence speech by burning cars when cartoons of Mohammed are published in Denmark, the lawful arm is skillfully maneuvering within Western legal systems, both here and abroad.

Islamists with financial means have launched a "legal Jihad," filing frivolous and malicious lawsuits with the aim of abolishing public discourse critical of Islam and with the goal of establishing principles of Sharia law (strict Islamic law dating back to the 9th Century) as the governing political and legal authority in the West.

Islamist Lawfare is often predatory, filed without a serious expectation of winning, and undertaken as a means to intimidate, demoralize and bankrupt defendants. The lawsuits range in their claims from defamation to workplace harassment and they have resulted in books being pulped and meritorious articles going unpublished.

Forum shopping, whereby Plaintiffs bring actions in jurisdictions most likely to rule in their favor, has enabled a wave of "libel tourism." At the time of her death in 2006, noted Italian author Orianna Fallaci was being sued in France, Italy, Switzerland and other jurisdictions by groups dedicated to preventing the dissemination of her work.

Libel Tourism has also resulted in foreign judgments against American authors mandating the regulation of their speech and behavior. The litany of American anti-Islamist researchers, authors, activists, publishers, congressman, newspapers, television news stations, think tanks, NGOs, reporters, student journals and others targeted for censorship is long and merits brief mentioning here.

One of the earliest cases in the US dates back to 1937, where in Birmington, Alabama, an Arab Sheik sued the Birmington Post for libel over an article entitled "Arabian Sheik Asks Friend Here to Buy him an American Girl for Harem." The Post reported that Sheik Fareed Iman, "who is 29 years old and fears he may reach 30 before he obtains a chief-wife for his four-wife harem, is ready to purchase a suitable girl from her parents. The lucky girl", the article continued, "will benefit from the traditional Arabian protective treatment of women but she can't be seen by those who are not members of the household."

The article read more like a parody of a personal ad in the dating section of a magazine and listed a telephone number should anyone reading be interested. Nevertheless, the Alabama court of appeals refused to dismiss the suit and judged the article libelous per se, or defamatory on its face, and remanded it for jury trial, where eventually the Plaintiff lost for his failure to state a cause of action.

Within the last ten years, however, we have seen a steady increase in cases pursued by Islamic organizations and Muslim individuals attempting to use Western courts to stop the flow of certain information. They are achieving a degree of success in Europe because the judicial systems in England, France and elsewhere don't afford their citizens, or American citizens for that matter, the same free speech protections granted in America under the U.S. Constitution. The cumulative effect of the suits abroad, and of the suits here at home even if they are not successful, and the looming threat of future suits is creating a detrimental chilling effect on dialogue concerning important matters of public concern because, naturally, people want to avoid costly litigation.

I want to mention briefly a few cases that have occurred here within the last ten years against American anti-Islamist authors and activists. It is imperative that our judicial system continue to enforce the authors' and activists' rights to free speech and free assembly against all parties attempting to stifle them here and abroad.

In 1998, America Online (AOL) permitted chat rooms in which voluntary participants could post comments and talk to one another about issues involving the Koran and tenants of Islam. One Muslim visitor to the chat room named Saad Noah considered posts by other visitors blasphemous and defamatory against Islam. Noah then sued AOL for libel, attempting a class action on behalf of all Muslim chat room participants and claiming that AOL wrongfully refused to prevent participants from posting anti-Islamic comments. The court properly dismissed the case against AOL, for failure to state a cause of action.

In 2003 the Council on American Islamic Relations (i.e., CAIR) sued U.S. Congressman Cass Ballenger after an interview with the Congressman was published in the Charlotte Observer wherein Ballenger exclaimed how living in Washington across the street from CAIR headquarters no longer appealed to him because CAIR was, "a fundraising arm for Hezbollah," and that the Congressman had reported such to the FBI and the CIA. Fortunately, the judge ruled that Ballenger's statements were made in the scope of his public duties and were therefore protected speech in the interest of public concern.

The following year, CAIR sued Andrew Whitehead, an American activist and blogger, for $1.3 million for maintaining the website Anti-CAIR.net.org, on which Whitehead lists CAIR as an Islamist organization with ties to terrorist groups. Ironically, after CAIR refused Whitehead's discovery requests, seemingly afraid of what internal documents the legal process it had initiated would reveal, CAIR withdrew its claims against Whitehead, the two parties came to a settlement – the terms of which have not been publicly disclosed – and the case was dismissed by the court with prejudice. Whitehead's Anti-CAIR website, however, is still up and running along with the articles that were at issue.

Last year, When Joe Kaufman, an American activist and chairman of Americans Against Hate, traveled to Texas to lead a peaceful ten-person protest against the Islamic Circle of North America outside an event the group was sponsoring at a Six Flags theme park, he was served with a temporary restraining order and sued for defamation and harassment. What is particularly troubling about Kaufman's case is that the suit was filed against him, not by ICNA, but by seven Dallas area plaintiffs who had never previously been mentioned by Kaufman, nor had they been present at the theme park. This suit currently is being litigated.

Another case that is ongoing is that of Bruce Tefft. Tefft is a former CIA official and worked as a counter-terrorism consultant for the NYPD. After sending out emails to a voluntary list of police officer recipients in which he cut and pasted articles about terrorism – complemented with Tefft's own commentary – Tefft, along with the NYPD, was sued by a Muslim John Doe Police Officer alleging workplace harassment.

Often the mere threat of suit is enough to intimidate publishers into silence, regardless of the merit of their author's works. In 2007, when wealthy Saudi Arabian businessman, Khalid bin Mahfouz, threatened to sue Cambridge University Press for publishing the book Alms for Jihad, by American authors Robert Collins and J Millard Burr, Cambridge Press immediately capitulated, offered a public apology to Mahfouz, took the book out of print and ordered the destruction of all unsold copies and the removal of the book from the shelves of libraries – a directive certain libraries refused to follow.

Sometimes defendants targeted are able to take advantage of Anti-SLAPP statutes.

Anti-SLAPP statutes have been enacted in several, but not all, states and are aimed at preventing such lawsuits designed to hinder legitimate public participation.

In the book Hamas, author Matthew Levitt describes KinderUSA as a charitable front for terror financing. When Levitt, along with Yale Press who published his book, were sued by KinderUSA, he instituted a counter-claim against the plaintiff based on California's Anti-SLAPP statute. Shortly afterwards, KinderUSA dropped their lawsuit claiming it found the suit too costly to pursue.

Most disturbing, parties sued for reporting on U.S. government investigations into terrorist activities, or for formally appealing government authorities to conduct investigations, include The New York Times which, in 2001, reported on the US Government investigation of the Global Relief Foundation; The Wall Street Journal which, in 2002, reported on the monitoring of the Saudi bank accounts; and ADL which, in 2002, called for the investigation of a public school superintendent, Khadja Ghafur, based on indications that schools under his supervision were teaching religion.

Legal Jihad is gaining momentum with a ripple effect, and we must expect that Islamists will engage in future legal efforts along these lines. Indeed, the Islamic Society of North America (ISNA) and the Muslim Public Affairs Council (MPAC) have both stated publicly that they are considering filing defamation lawsuits against their critics. The Muslim World League has called for the establishment of a commission to take legal action against those who abuse Islam and its prophet Mohammed. During the recent two-day summit in Dakar, taking legal action against those who defame Islam was a key issue debated at length by Muslim leaders.

For its part, the Council on American-Islamic Relations has announced an ambitious fundraising goal of $1 million, in part to "defend against defamatory attacks on Muslims and Islam." One of its staffers, Rabiah Ahmed, has stated that lawsuits are increasingly an ‘instrument' for it to use." Moreover, CAIR's chairman, Parvez Ahmed, has stated that "People who make statements connecting CAIR to terrorism should understand the legal consequences of their attempted slander and defamation."

This is not a Left or Right issue.

The Islamist Lawfare challenge presents a direct and real threat to our constitutional rights and national security. Left unabated, this phenomenon has the potential to seriously hinder public debate on the threat of radical Islam. The United States was founded on the premise of freedom of worship, but also on the principle that one should have the freedom to criticize religion.

Should the voices of concerned Americans be intimidated into silence, a real possibility exists that the criticism of radical Islam will be stifled, and Sharia law will begin to creep into our system as we are seeing it do in the financial markets with Sharia banking.

Daniel Pipes, who founded and heads the Middle East Forum, recognized the seriousness of this threat and last spring established the Legal Project (LP) to counter it. The LP has been working to recruit and establish a network of attorneys who are willing to work as pro bono counsel for the defendants in these cases; it has also embarked on fundraising efforts to assist with the cost of litigation and is working to raise public awareness of this phenomenon. Moreover, the LP is capable of positioning itself on the offensive and has recently succeeded in causing The Muslim Weekly publication, a UK-based lslamist magazine, to issue an apology and retraction of an article in which one Tariq Ramadan made false and defamatory statements about Dr. Pipes.

Those parties who recklessly and wrongfully defame our counter-terrorism researchers should beware.

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FamilySecurityMatters.org Contributing Editor Brooke Goldstein, a practicing attorney, is the Director of The Legal Project at the Middle East Forum, Director of the Children's Rights Institute, an Adjunct Fellow at the Hudson Institute and the 2007 recipient of the E. Nathaniel Gates Award for Outstanding Public Advocacy. Goldstein has been invited to the White House and State Department to brief government officials on issues of counter-terrorism and has appeared on Fox News, CNN and in other media as an expert commentator.

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