THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume XIII, Issue # 13, January 11, 2011
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
THE LATEST TERROR TACTIC -- LITIGATION:
Why Not Use this Same Tactic Against the Terrorists?
By Daniel Huff
CIVIL LITIGATION AS A MEANS OF FIGHTING ISLAMIST TERRORISM: BORROWING FROM THE ISLAMIC EXTREMISTS
& USING CIVIL LITIGATION AS A COMPLEMENTARY STRATEGY IN COUNTERTERRORISM OPERATIONS, PARTICULARLY IN
THE U.S.A. -- NEEDED FOR THIS PURPOSE: ENACTMENT OF CONGRESSIONAL LEGISLATION MAKING IT ILLEGAL TO
USE FORCE AGAINST PERSONS EXERCISING THEIR FREE SPEECH RIGHTS, LEGISLATION ALSO PERMITTING VICTIMS TO SUE
FOR DAMAGES
FULL STORY:
On December 29, 2010, Scandinavian authorities arrested five Islamist terrorists planning an attack in Denmark.
Almost as interesting as what they targeted is what they spared and the lessons it holds for future
counterterrorism efforts.
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.
LINKS TO RELATED TOPICS:
Lawfare -- The Use of Law as a Weapon in War & Politics:
Islamist Lawfare & the "Legal" Jihad Against America & the West
Islamism & Jihadism -- The Threat of Radical Islam
Page Three
Page Two
Page One
Middle East -- Arabs, Arab States,
& Their Middle Eastern Neighbors
American Foreign Policy -- The Middle East
International Politics & World Disorder:
War, Peace, & Geopolitics in the Real World:
Foreign Affairs & U.S. National Security
Page Two
Page One
Islamist Terrorist Attacks on the U.S.A.
Osama bin Laden & the Islamist Declaration of War
Against the U.S.A. & Western Civilization
Islamist International Terrorism &
U.S. Intelligence Agencies
Counterterrorism & U.S. National Security
U.S. National Security Strategy
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)
Republished with Permission of the Middle East Forum
Reprinted from the Middle East Forum News
mefnews@meforum.org (MEF NEWS)
January 11, 2011
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Dr. Almon Leroy Way, Jr., Editor
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