Judge Colleen Kollar-Kotelly
A federal judge ruled against the Council on American-Islamic Relations today in its lawsuit against a father and son who carried out a six-month undercover investigation of the D.C.-based Muslim group, denying a request to conduct discovery – an examination of its opponent’s witnesses, facts and documents – prior to hearing a motion to dismiss the case.
CAIR is suing P. David Gaubatz and his son, Chris Gaubatz, for allegedly stealing sensitive internal documents and making recordings of officials without consent. Chris Gaubatz, who posed as a Muslim in an internship with CAIR’s national office in Washington, took some 12,000 pages of documents destined for a shredder in an attempt, he said, to expose the group’s ties to Islamic jihad and terrorism. His father is a former Air Force special agent with extensive Middle East experience who researches the spread of radical Islam in the U.S. and its threat to national security.
In her ruling today, Judge Colleen Kollar-Kotelly of the U.S. District Court in Washington, D.C., canceled a court hearing scheduled for Tuesday and gave CAIR until Jan. 15 to reply to the Gaubatz’s motion to dismiss the case.
The motion filed last month by Gaubatz lawyer Daniel Horowitz asserts CAIR has no claim because it does not legally exist.
Horowitz explains that 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.
“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.
The FBI produced evidence at the trial of the Texas-based Holy Land Foundation in 2008 that CAIR was established as a front for the Palestinian terrorist group Hamas.
The material obtained by the Gaubatzes is featured in the book “Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America,” published by WND Books, an affiliate of WorldNetDaily.com. The book 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.
Horowitz said CAIR had hoped to draw WND Books into the legal battle so it could pull the book off the shelves. But the federal judge’s ruling today prevents the group from any legal investigation of the Gabautzes or WND Books under the court’s authority before the motion to dismiss the case is heard.
In its lawsuit, CAIR sought to stop the Gaubatzes and their associates from “posting, publishing, disclosing, or in any way using any documents, recordings, or other information obtained from CAIR, either directly or indirectly.”
“That means pull the book,” Horowitz explained. “Since CAIR doesn’t even exist, what right do they have to question the publisher of the book or anyone else?”
Horowitz asked further, if Kollar-Kotelly throws out the case “because CAIR filed under a false name, what is the ‘real’ name that they can use if they refile?”
“In my opinion, the only real name that they can use, that is not a fraud on the court, is Hamas,” he said.
Horowitz says if CAIR 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.”
The reply to CAIR also contends the Gaubatzes’ actions to expose the group are protected by the First Amendment.
Kollar-Kotelly issued a restraining order Nov. 3 barring the Gaubtazes from further use or publication of the material 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 one year ago in response to the group’s terrorist ties. Democratic Sen. Charles Schumer of New York and other senators have called for a government-wide ban on CAIR.
Horowitz, a frequent TV legal analyst based in the San Francisco Bay area, represented talk-radio host Michael Savage in his lawsuit against CAIR. Renowned First Amendment lawyer Martin Garbus, who represented Daniel Ellsberg in the Pentagon Papers case during the Vietnam War, also is defending the Gaubatzes. A third high-profile advocate, Bernard Grimm of Washington, D.C., also is a member of the legal team.
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 take on 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.
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.