CAIR Executive Director Nihad Awad shakes hands with intern Chris Gaubatz, aka David Marshall, at CAIR’s national headquarters in Washington, D.C., in 2008
In an intriguing twist to a lawsuit with national security implications, lawyers defending a father and son who carried out a six-month undercover investigation of the Council on American-Islamic Relations have filed a reply claiming the D.C.-based Muslim-rights group has no claim because it does not legally exist.
Just two weeks after CAIR was named by the Justice Department in May 2007 as an unindicted co-conspirator in the largest terrorist finance case in U.S. history, the organization changed its name to the Council on American-Islamic Relations Action Network, explains attorney Daniel Horowitz in a motion to dismiss the case filed in federal court in the nation’s capital.
“CAIR is not a valid entity and even if it were, the exposure of its inner workings is part of the price it pays for being a controversial group in a hotly contested arena,” Horowitz declares in his reply to CAIR’s lawsuit.
Horowitz says if the group responds to his brief by filing an amendment to change its registered name back to Council on American Islamic-Relations, he will seek an evidentiary hearing “to establish whether there is a genuine corporate entity that is ‘CAIR’ or whether ‘CAIR’ is a moniker used to represent the activities of a ruling group that oversees (in some way) the operations of other CAIR related groups.”
As WND reported, CAIR alleges P. David Gaubatz and his son, Chris Gaubatz, who served as an unpaid volunteer for CAIR last year, obtained access to the Muslim group’s property under false pretenses, removed internal documents and made recordings of officials and employees “without any consent or authorization and in violation of his contractual, fiduciary and other legal obligations to CAIR.”
The reply to CAIR also contends the Gaubatzes’ actions to expose the group are protected by the First Amendment.
A federal judge in Washington issued a restraining order Nov. 3 barring the Gaubtazes from further use or publication of the material – 12,000 pages of documents along with audio and video recordings – and demanding that they return it to the Muslim group’s lawyers. But the FBI also has shown interest in the material, stepping in with a warrant Nov. 23 to examine the papers and recordings, apparently as part of its concern
about CAIR and its terrorist links to Hamas.
The FBI cut off ties to
CAIR in January after the group was named an unindicted co-conspirator
in the Holy Land Foundation terror-financing case in Texas. Democratic
Sen. Charles Schumer of New York and other senators have called for a
government-wide ban on CAIR.
The material is featured in the book “Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America,” published by WND Books.
The book, co-authored by David Gaubatz and “Infiltration” author Paul Sperry, asserts CAIR is acting as a front for a conspiracy of the Muslim Brotherhood – the parent of al-Qaida and Hamas – to infiltrate the U.S. and help pave the way for Saudi-style Islamic law to rule the nation.
An exhibit filed by Horowitz with his reply to CAIR shows a search on the Department of Consumer and Regulatory Affairs website for the name Council on American-Islamic Relations produced no results. Further, a search for “name availability” on the same site showed Council on American-Islamic Relations was available while the names Council on American-Islamic Relations Action Network and Council on American-Islamic Relations Foundation were not. Both of the latter names turned up in a search for incorporated names.
“CAIR is not a valid entity and even if it were, the exposure of its inner workings is part of the price it pays for being a controversial group in a hotly contested arena,” Horowitz says in the brief’s conclusion. “If the press or publishers had to prove the purity of their sources before publishing we would never hear about the various romances of Tiger Woods (which might be a relief) but we also never have heard of the Pentagon Papers.”
In the well-known case brought by the New York Times against the federal government, the U.S. Supreme Court upheld the right of the press to the Pentagon Papers – the top-secret Defense Department history of U.S. involvement in Vietnam – because they related to “matters of great public concern,” Horowitz argues.
The famed New York City lawyer who represented Daniel Ellsberg in the Pentagon Papers case, Martin Garbus, also is defending the Gaubatzes. Another high-profile advocate, Bernard Grimm of Washington, D.C., is a third member of the legal team.
Horowitz, a frequent TV legal analyst based in the San Francisco Bay area, represented talk-radio host Michael Savage in his lawsuit against CAIR.
CAIR is seeking punitive damages for trespass, breach of contract, conversion – the unlawful use of someone else’s property – and breach of fiduciary duty. In the lawsuit, however, CAIR, a self-described Muslim civil-rights group, does not defend itself against the book’s claims.
Horowitz argues that CAIR’s declaration shows the use of Council on American-Islamic Relations Action Network is not just a convenient shortening of the name. He points out that in CAIR’s case against Savage, CAIR’s own attorneys appeared separately for CAIR and for CAIR Action Network, or CAIR-AN.
CAIR claims the Gaubatzes used CAIR property and personal information of CAIR’s employees and donors to cast the group in a “negative, inaccurate light.” The group claims it had an expectation of confidentiality that was breached, causing injury to the organization and causing it and its officials and employees “to suffer unwarranted harassment up to and including threats of violence.”
But Horowitz says CAIR’s pleading does not make it clear that the documents taken from CAIR were consigned to the shredder. “Muslim Mafia,” he points out, describes Chris Gaubatz’s internship at CAIR as “a six-month counterintelligence operation” during which he “routinely load[ed] the trunk of his car with boxes of sensitive documents and deliver[ed] them into the custody of investigative project leader P. David Gaubatz who in turn stockpiled them at his office in Richmond, Virginia.”
Chris Gaubatz says CAIR’s office manager had asked interns to destroy whole boxes of documents in the basement with a commercial shredder. The other interns didn’t want to do the mundane task, leaving Gaubatz virtually alone in the basement, where he “would sometimes spend hours going through boxes and putting together one box that was good stuff and shredding the rest.”
“And then at the end of the day I would just walk down there (to the basement), pick the good box up, and walk out of the building with it,” he said.
The Gaubatzes’ legal reply to CAIR argues the damages claimed are not specific and, in any case, are related to conduct protected by the First Amendment.
The reply says CAIR, which contends it is simply a civil rights group, is trying to bring a debate into the courtroom that actually belongs in the public arena. In contrast to CAIR’s description of itself, Horowitz notes, the authors of “Muslim Mafia” describe CAIR as “a full-service terror support group.”
“CAIR’s lawsuit tries to bring the debate into the courtroom by confusing its version of how the material was obtained with a claim for damages due to the effects of publication,” the brief states.
Horowitz calls CAIR’s action “an impermissible end run around First Amendment protections.” He notes that ironically, in CAIR’s case against Savage, the group “decried this same tactic, alleging that ‘fair use’ protected CAIR’s right to use six minutes of a radio talk show and post it on CAIR’s website to illustrate a point.”
“The fact that ‘CAIR’ is upset or that members may have been threatened does not weaken the First Amendment protections,” Horowitz argues.
Regarding CAIR’s claim of suffering threats, Horowitz says, “Obviously, any thinking person would be alarmed and even outraged if it were true that threats arose in response to … ‘Muslim Mafia.’ But the book itself does not directly or indirectly seek this. There are no claims that ‘Muslim Mafia’ sought to generate physical harm, only that it cast CAIR in a ‘negative light.”
CAIR’s claim of breach of fiduciary duty and breach of contract is based on its allegation Chris Gaubatz signed a confidentiality agreement when he began the internship. But CAIR has not been able to produce evidence any agreement was signed, and Horowitz says that even if signed, “this document would have been signed between a non-existent corporate entity and Chris Gaubatz. There need to be two parties to a contract.”
CAIR’s claim of trespass also is invalid, Horowitz contends, because the group has not even insisted in its pleading that its premises were private or not open to the public.
“There cannot be trespass to a place open to the public without fee,” he argues.
CAIR claims its e-mails are protected by the Electronic Communications Privacy Act, but Horowitz asserts the law does not apply to office computers at CAIR. Rather, he says, it “protects users whose electronic communications are in electronic storage with an [Internet service provider] or other electronic communications facility.”
IMPORTANT NOTE: WND needs your help in supporting the defense of “Muslim Mafia” co-author P. David Gaubatz and his son Chris against CAIR’s ongoing legal attack. Already, the book’s revelations have led to formal congressional demands for three different federal investigations of CAIR. In the meantime, however, someone has to defend these two courageous investigators who have, at great personal risk, revealed so much about this dangerous group. Although WND has procured the best First Amendment attorneys in the country for their defense, we can’t do it without your help. Please donate to WND’s Legal Defense Fund now. Thank you.