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The First Amendment case the media refuse to cover
Posted By Art Moore On 02/01/2010 @ 9:38 pm In Front Page | Comments Disabled
The Council on American-Islamic Relations’ lawsuit against a father-and-son team that conducted an undercover investigation of its terrorist ties claimed it couldn’t specify how it was damaged until it received back the 12,000 pages of internal documents obtained in the probe.
But even after the return of the documents to CAIR and their release to the FBI, the Muslim group’s latest brief still does not present any evidence it suffered damages, rendering the case moot, argues a new legal reply to CAIR by Daniel Horowitz, attorney for former Air Force special agent P. David Gaubatz and his son Chris, who served a six-month CAIR internship in 2008 posing as a young Muslim convert.
The lawsuit should be dismissed, Horowitz writes, as it “has no chance of producing damages, but it is damaging simply as it chills the First Amendment rights of defendants.”
The documents – preserved by Chris Gaubatz after he was told to shred them – provided key evidence for the book “Muslim Mafia”, published last fall by WND Books. But the lawsuit does not address the substance of the book’s claim that CAIR is a front in a conspiracy by the Egypt-based mother organization of leading worldwide terrorist groups, the Muslim Brotherhood, to pave the way for Saudi-style Islamic law in the U.S.
The case has been virtually ignored by mainstream media, whose minimal coverage has failed to mentioned the FBI’s decision to cut off ties to the Muslim group after its designation by the Department of Justice as a terrorist co-conspirator and that many CAIR leaders and prominent supporters have been convicted in terrorism-related cases. CAIR officials, nevertheless, were called on by numerous major media outlets to speak on behalf of American Muslims in the wake of the Fort Hood massacre.
Horowitz noted to WND that normally, if a party believes a book is deliberately false, it will sue for defamation.
“Truth is a defense,” he said, “and we have always been willing to debate CAIR in a public forum or in the courts on these issues.”
Horowitz said the First Amendment protects his clients from the charges CAIR does make in its complaint and subsequent filings.
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
CAIR alleges the Gaubatzes 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.”
But Horowitz argues that even if the case had any viability, it is moot because CAIR now has its documents back and CAIR’s attorney has retracted his initial objections to a subpoena, served by the FBI, to turn over copies of the documents to a federal grand jury.
In its response to Horowitz’ motion to dismiss in December, CAIR claimed that spelling out its damages “exhaustively and in detail” would have been impossible at the time of the complaint “because CAIR could only infer what precisely it was that Defendants had stolen.”
Horowitz argues CAIR ignores that nearly three months have passed since a federal judge in Washington ordered the documents returned, and CAIR could have amended its complaint to “properly allege damages,” but it “has elected not to.”
“CAIR is trying to continue the lawsuit “in the hope that some future event will reveal the missing damages,” Horowitz asserts.
In his motion to dismiss in December, Horowitz argued that CAIR is unable to demonstrate it suffered harm and, furthermore, has no claim because the group does not legally exist. Horowitz explains that CAIR changed its name to the Council on American-Islamic Relations Action Network almost immediately after it was named by the Justice Department as an unindicted co-conspirator in the largest terror-finance case in U.S. history.
Horowitz contends CAIR’s reply does not address his allegation that the group used a non-existent entity to file the lawsuit, dismissing the use of the wrong name by calling it a “misnomer.”
“CAIR forms groups, dissolves them, takes credit for them or disclaims them as it sees fit,” he told WND.
The legal name change in May 2007 to Council on American-Islamic Relations Action Network, for example, came just two weeks after the Justice Department’s designation of CAIR as an unindicted co-conspirator in the prosecution of the Holy Land Foundation. The Texas-based group was convicted of channeling funds to the Palestinian terrorist group Hamas.
CAIR, Horowitz asserts in his latest brief, has the burden of proving its use of the wrong legal name was an honest or understandable mistake. The law does not allow a party “to deliberately mislead the court and opposing counsel and then claim no harm, no foul and amend as they see fit,” he writes.
Horowitz points out that when he defended Michael Savage in CAIR’s case against the radio talk host, CAIR’s own attorneys appeared separately for CAIR and for CAIR Action Network, or CAIR-AN.
“CAIR and CAIR-AN are two distinct corporate entities,” he told WND, “and while CAIR-AN may be a successor to CAIR, the name problem goes far deeper than mistakenly using a predecessor corporation.”
In its legal reply to Horowitz, CAIR concedes it cannot sue over First Amendment-protected activities such as publishing information about the organization.
But Horowitz argues that CAIR, nevertheless, focuses its entire complaint “on the attacks on its self-proclaimed character as a civil rights organization.”
CAIR, he points out, says Chris Gaubatz’ mission was both to collect and to “misappropriate information” that was “to later be disclosed publicly and used to cast CAIR in a negative light.”
Those actions, CAIR claims, “caused CAIR and its officials and employees to suffer unwarranted harassment up to and including threats of violence.”
But Horowitz argues that in CAIR’s legal briefs, “no specific threats are alleged and no attempt is made to show that the alleged wrongful conduct had any relation to the alleged threats.”
He also points out CAIR’s original pleading does not make it clear that the documents taken from CAIR were consigned to the shredder.
CAIR says in its reply brief that much of “Muslim Mafia” is “devoted to critiquing CAIR” and, contrary to the defendants’ claims, is “a decidedly unserious book that only warrants CAIR’s attention due to the criminal and tortious conduct which it admits Defendants perpetrated upon CAIR.”
Horowitz calls that statement another concession by CAIR that it suffered no damages.
CAIR’s claim of breach of fiduciary duty and breach of contract is based on its allegation that Chris Gaubatz signed a confidentiality agreement when he began his internship. But CAIR has not been able to produce evidence any agreement was ever 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.”
Horowitz writes in his reply to CAIR’s response that courts apparently have presumed a volunteer like Gaubatz is not a “fiduciary,” someone in a position of special trust.
“CAIR does not assert that it entrusted Chris Gaubatz with secrets,” he argues. “They claim that he stole items that were not entrusted to him. His actual sphere of influence is not detailed in the complaint at all (except for his shredding responsibilities). There is simply nothing in CAIR’s pleading that even attempts to qualify the relationship as special.”
IMPORTANT NOTE: The CAIR legal attack on WND’s author is far from over. WND needs your help in supporting the defense of “Muslim Mafia” co-author P. David Gaubatz, as well as his investigator son Chris, against CAIR’s lawsuit. 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.
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