THE LATEST TERROR TACTIC -- LITIGATION:
Why Not Use this Same Tactic Against the Terrorists?
By Daniel Huff
The plot was to storm the Copenhagen newsroom of Jyllands Posten and murder its staff. It was the fourth attempt this year by Islamic extremists to punish the newspaper that published the Muhammad cartoons. But the terrorists are guilty of selective prosecution. They have yet to strike Politiken, which also published the cartoons, even though its offices are literally next door.
It is logical that Jyllands is the principal target because it sparked the controversy. It was Jylland's editor, Flemming Rose, who originally commissioned the cartoons in 2005. A Danish comedian had told interviewers he would publicly urinate on the Bible, but would not dare do the same to the Koran. Rose's message was that Islam should be treated equally, not specially.
Nevertheless, there is a second reason Politiken is not a target. It already surrendered, vanquished by the nonviolent instrument of a civil lawsuit.
In 2008, Islamic extremists nearly murdered Kurt Westergaard, who drew one of the original cartoons. In response, Politiken reprinted the cartoons as part of a unified stand against intimidation of the press. The defiance didn't last. A Saudi law firm claiming to represent 94,923 descendants of Muhammad threatened it with legal action and the paper caved. On February 26, 2010, it effectively apologized for defending free speech.
This is a textbook illustration of how litigation has become a complementary and sometimes superior strategy for Islamic extremists who traditionally relied on physical violence alone to intimidate their opponents.
In Europe especially, their cause is aided by vague hate speech laws that make it all too easy to punish legitimate discourse on Islam. Last month, a Danish Member of Parliament pleaded guilty to violating hate speech laws with comments he made on Islam's treatment of women. He had agreed to forgo parliamentary immunity in order to fight the charges on the merits, only to discover that truth is no defense. On January 24, 2011, another Danish politician, International Free Press Society President Lars Hedegaard, will stand trial for similarly speaking his mind. He also faces a potentially costly libel suit. There were reports last Summer that Denmark's hate speech laws would be reformed to prevent abuse, but this has yet to happen.
In the meantime, authorities can borrow from the extremists and use civil litigation as a complementary strategy in counterterrorism operations, particularly in the U.S.A.
Forcing terrorists to fight simultaneous criminal and civil proceedings would make it difficult for them to focus their defense resources effectively. This has been the experience in white-collar cases when the U.S. Justice Department and a federal regulatory agency pursue parallel investigations against a target company.
While criminal defendants can get court-appointed lawyers, civil defendants pay out of pocket and the plaintiff's burden of proof is typically lower. In addition, the broader scope of discovery in civil cases may produce information otherwise unavailable to prosecutors. Finally, parallel lawsuits can pin terrorists between remaining mum in the civil suit and likely losing, or fighting back and forfeiting their right to "plead the Fifth" in the criminal case. Defendants might dodge these difficulties by delaying the civil proceedings, but courts do not always permit that.
This plan presupposes a clear basis for civil suits. In 1994, Congress passed a bill making it illegal to use force against persons exercising abortion rights and permitting victims to sue for damages. With only minor modifications, this law could be expanded to cover threats against free speech rights as well.
For example, officials are investigating whether the recent plot is connected to the 2009 arrest of two Chicago men for conspiring to attack Jyllands Posten. According to the indictment, Tahawwur Rana and David Headley gained access to Jylland's offices on the pretext of purchasing advertising for their immigration services company. Once inside, they conducted videotape surveillance of the premises which they provided to co-conspirators in Pakistan who recommended using a truck bomb.
Headley pleaded guilty in March, 2010, but Rana goes on trial in February, 2011. Were the proposed law on the books now, Jylland's staff could sue for damages using information from the indictment and guilty plea. This would be particularly disruptive to Rana as he tries to focus on preparing for his criminal trial.
More broadly, a law along these lines would allow victims to go on the offensive against Islamic radicals who terrorize them, instead of having to hope authorities continue catching these extremists in time.
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Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as Counsel to the U.S. Senate Judiciary Committee, handling a number of matters related to American national security and to civil and criminal law. As a member of the staff of the Judiciary Committee, one of his priorities was the Free Speech Protection Act, which was designed to combat "libel tourism," the practice of intimidating American authors by suing them for libel in foreign jurisdictions less protective of freedom of speech and expression than is the U.S.A.
Prior to his service in Washington, D.C., Huff was an associate at McKinsey & Company in New York, N.Y. A member of the New York Bar, Huff is a graduate of Columbia University Law School, where he was a Harlan Fiske Stone Scholar.
The foregoing article by Daniel Huff was originally published in The Daily Caller, January 11, 2011, and can be found on the Internet website maintained by the Middle East Forum, a foreign policy think tank which seeks to define and promote American interests in the Middle East, defining U.S. interests to include fighting radical Islam, working for Palestinian Arab acceptance of the State of Israel, improving the management of U.S. efforts to promote constitutional democracy in the Middle East, reducing America's energy dependence on the Middle East, more robustly asserting U.S. interests vis-à-vis Saudi Arabia, and countering the Iranian threat. (URL: http://www.meforum.org/2817/terrorist-tactic-litigation)
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