New controversial fight emerges over foreign lawsuits.
Image has not been found. URL: /wp-content/uploads/2009/05/3546364581_2054f15fac_b1.jpgDaniel Pipes, Alan Dershowitz, Frank Gaffney and Andrew McCarthy (Photo by: Dave Weigel)
In February, Sens. Arlen Specter (D-Pa.) and Joe Lieberman (I-Conn.) introduced the Free Speech Protection Act, legislation aimed at protecting Americans from libel lawsuits filed in foreign courts. The bill languished, attracting only two co-sponsors in the Senate, but on May 19 Specter was scheduled to promote the bill at a suitable event–a conference on “Libel Lawfare,” sponsored by a coalition of conservative legal groups and watchdogs of Islamic extremism.
At the eleventh hour Specter pulled out and canceled his opening remarks, citing only a “scheduling conflict.” The Council for American-Islamic Relations claimed credit for Specter’s “decision to withdraw from this inaccurate, inflammatory and agenda-driven conference,” in the words of CAIR-Philadelphia Executive Director Justin Peyton. “The senator’s appearance at this event,” said Peyton, “would have legitimized views not shared by the majority of Pennsylvanians of all faiths.”
That news wasn’t received well at the Capital Hilton, where a few dozen of more than 200 eventual conference attendees arrived early for a press conference that got scrapped. Brooke Goldstein, the director of the Legal Project at the Middle East Forum, explained Specter’s decision to the conference, eliciting groans and laughter from the crowd.
“This hasn’t stopped CAIR from issuing a petition,” said Goldstein, “which, ironically, calls for Specter to boycott this conference and refuse to speak out about the issue.” By shutting down its most prominent speaker, CAIR had proved “the point of the conference.”
Despite Specter’s rebuff, the first-of-its-kind conference brought together liberal-leaning and ultra-conservative adherents of a fairly new, and fairly controversial, issue in domestic and international law. In recent years, critics of Islam have accused Muslim activists of waging “legal jihad” against their opponents. In their telling, the activists, often bankrolled by Saudi interests, are using the strict libel laws of European nations to wage expensive lawsuits against people who critique their religion. They are silencing numerous other skeptics–it’s impossible to know how many–by making them afraid to speak out. After years of brewing in the foreign press and obscure corners of the “anti-jihadist” movement, the campaign against this is moving into the open and into the mainstream, at a forum co-sponsored by the Federalist Society and by the Middle East Forum, with input from the most prominent lawyers and pundits who regularly comment on the war on terror.
The push for protection against international libel suits can be traced back to the case of Rachel Ehrenfeld, a journalist who did not attend this conference. In 2003 she published “Funding Evil: How Terrorism is Financed and How to Stop It,” and accused Saudi bank tycoon Khalid bin Mahfouz of giving “tens of millions of dollars” to terrorist groups. Bin Mahfouz sued Ehrenfeld in England, taking advantage of the country’s libel laws after 29 copies of her book were sold via Amazon.co.uk. Ehrenfeld lost the case and watched her own, American lawsuit against bin Mahfouz get dismissed from a New York court. That led to a campaign for a law that would allow Americans sued for libel in foreign courts to countersue in America. And in May 2008, Gov. David Paterson (D-N.Y.) signed New York’s Libel Terrorism Protection Act.
So far, the increased attention has come with increased worry about exposure. At the May 19 conference, security guards checked attendees’ badges when they entered the main event hall and then when they entered a separate room for lunch. According to Goldstein, this wasn’t a response to any particular threat as much as a “prudent” response to the “potential for some crazy person to come” and disrupt the proceedings. A panel on “Islamist Lawfare in the United States” brought together critics of extremist Islam who have battled CAIR for years, including Middle East Forum Director Daniel Pipes and Center for Security Policy President Frank Gaffney. Pipes, the author of 18 books, won a recess appointment from George W. Bush to the United States Institute of Peace, overcoming a Democratic filibuster; Gaffney, a former assistant Secretary of Defense, signed the 1997 “statement of principles” from the Project for the New American Century. A luncheon panel brought together Joe Kaufman of Americans Against Hate and Hassan Dai of IranLobby.com, both of whom had faced tens of thousands of dollars in legal bills after facing libel lawsuits for statements about Islam.
Kaufman’s struggle didn’t involve international libel law. In 2007, after criticizing the Islamic Center of North America, going so far as to call them “jihadists,” he arrived at Six Flags Over Texas to protest Muslim Family Day. “I was served right there on the spot,” Kaufman told TWI. Seven Muslim groups sued him. Slowly, at no small cost, he beat the rap, and in his home in Florida he supported the passage of the nation’s second state law against “libel warfare.”
At the conference, the panel of experts portrayed the threat of “guerrilla lawfare” as serious and mounting. “To put it in the most stark terms,” said Pipes, “this is a debate between those who want to keep the Constitution and those who want to replace it with the Koran. Those of us who want to keep the Constitution should be able to speak out freely.” Goldstein wondered aloud if a similar panel could even be held in five or 10 years at the rate that things were deteriorating.
No one put it more ominously than Gaffney, who informed that America’s sovereignty was at risk. “We take it for granted, like air,” he said, “taking for granted that it will be there in the future. Not so.” The issue went far beyond protecting Americans from international libel cases. Opponents of lawfare needed to oppose any use of government funds to enshrine Sharia law in America–something that the lawfare movement was shooting for, and something President Obama indulged when he spoke to Arab nations with “respectful language,” which they might take as code. “This constitutes a pincer movement,” Gaffney explained, pointing his hands to emphasize the point, “between the secularists on one hand and the religious transnationalists on the other, wielding lawfare as the Liliputians wielded their tiny strands to immobilize Gulliver.”
The crowd, made up of lawyers, activists, and interested observers, gave warmer applause to Gaffney than to the panelists who criticized him. James Taranto, a Wall Street Journal columnist who had promoted the effect–and mocked both CAIR and Specter for the pre-event drama–declared that he “wanted to disassociate” himself from Gaffney’s remarks on respectful language. John Walsh, a lawyer who often represented libel plaintiffs, drew some laughter when he suggested that “local law enforcement” could protect critics of Islam from threats. Larry Frost, a retired intelligence officer who had just completed his law degree, came to the conference after being warned off of holding a forum on whether Islam could comport with the Constitution. “When you’re critical, they call you an Islamophobe,” said Frost. “My response to that is if you’re not an Islamophobe, you’re either ignorant of Islam or you’re deliberately lying to yourself.”
Alan Dershowitz, the legendary appellate lawyer and Felix Frankfurter Professor of Law at Harvard Law School, spun some of his remarks off of how an Italian court had indicted him for libel for a speech he’d made in America. He supported the concept of the Free Speech Protection Act while opposing the idea that critics of Islam should dodge foreign lawsuits. “I’d prefer to go over there and win and set the precedent,” said Dershowitz. (Gaffney said after the panel that he didn’t oppose Specter’s bill, but worried that “it’s likely to give people a false sense that they’ve taken care of a problem.”) Gaffney brought up the nomination of Yale Law Dean Harold Koh for State Department legal adviser as an opportunity to make the arguments against “transnational” law. Dershowitz said that he “welcomed the debate,” and while he argued that the goal of “lawfare” critics should be to spread American norms of free speech, after the panel Dershowitz admitted that he would have preferred that Koh had not been nominated. “I would have preferred someone else for the job,” said Dershowitz. “He’s a friend, but I disagree with some of his views. I’m not sure the president knows his views as well as he ought to.”
After the luncheon, Goldstein aligned herself with Dershowitz’s comment that the lawfare conference was a “historic event” that had gotten the ball rolling. “What’s important to note is how this issue is quite nonpartisan,” she said. “You had people who came on the stage with very divergent views, but all of them agreed that there is a substantial threat to free speech, all agreed to participate in this conference, and all agreed to keep talking about the issue.” A little bit of controversy won’t stop the issue from making its way into mainstream political debate.
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