Protecting the Constitution

The following is a piece in yesterday's Wall Street Journal by two U.S. Senators who are sponsoring a free speech bill in the Senate. In this country, we have been treated to the spectacle of a human rights investigator with the Canadian Human Rights Commission sneering at the idea of free speech, declaring it an "American concept" that has no relevance in Canada. We also saw the mind-boggling interview on CBC when an intellectually-challenged Avi Lewis accused Ayaan Hirsi Ali of being brainwashed when she declared the United States to be a truly free society. Her rebuttal is well worth the five minutes it takes to watch this tape.

Methinks we could learn a few things from our American cousins.

Our Constitution is one of our greatest assets in the fight against terrorism. A free-flowing marketplace of ideas, protected by the First Amendment, enables the ideals of democracy to defeat the totalitarian vision of al Qaeda and other terrorist organizations.

That free marketplace faces a threat. Individuals with alleged connections to terrorist activity are filing libel suits and winning judgments in foreign courts against American researchers who publish on these matters. These suits intimidate and even silence writers and publishers.

Under American law, a libel plaintiff must prove that defamatory material is false. In England, the burden is reversed. Disputed statements are presumed to be false unless proven otherwise. And the loser in the case must pay the winner's legal fees.

Consequently, English courts have become a popular destination for libel suits against American authors. In 2003, U.S. scholar Rachel Ehrenfeld asserted in her book, "Funding Evil: How Terrorism Is Financed and How to Stop It," that Saudi banker Khalid Bin Mahfouz helped fund Osama bin Laden. The book was published in the U.S. by a U.S. company. But 23 copies were bought online by English residents, so English courts permitted the Saudi to file a libel suit there.

Ms. Ehrenfeld did not appear in court, so Mr. Bin Mahfouz won a $250,000 default judgment against her. He has filed or threatened to file at least 30 other suits in England.

Fear of a similar lawsuit forced Random House U.K. in 2004 to cancel publication of "House of Bush, House of Saud," a best seller in the U.S. that was written by an American author. In 2007, the threat of a lawsuit compelled Cambridge University Press to apologize and destroy all available copies of "Alms for Jihad," a book on terrorism funding by American authors. The publisher even sent letters to libraries demanding that they destroy their copies, though some refused to do so.

To counter this lawsuit trend, we have introduced the Free Speech Protection Act of 2008, a Senate companion to a House bill introduced by U.S. Rep. Pete King (R., N.Y.) and co-sponsored by Rep. Anthony Weiner (D., N.Y.). This legislation builds on New York State's "Libel Terrorism Protection Act," signed into law by Gov. David Paterson on May 1.

Our bill bars U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment. If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.

First Amendment scholar Floyd Abrams argues that "the values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each." We agree. But it is not in our interest to permit the balance struck in America to be upset or circumvented by foreign courts. Our legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards. No more. No less.

We have seen this type of libel suit before. The 1964 Supreme Court decision in New York Times v. Sullivan established that journalists must be free to report on newsworthy events unless they recklessly or maliciously publish falsehoods. At that time, opponents of civil rights were filing libel suits to silence news organizations that exposed state officials' refusal to enforce federal civil rights laws.

Now we are engaged in another great struggle -- this time against Islamist terror -- and again the enemies of freedom seek to silence free speech. Our legislation will help ensure that they do not succeed.

Mr. Specter is a Republican senator from Pennsylvania. Mr. Lieberman is an Independent Democratic senator from Connecticut.

What can you buy with $300,000? A whole lot of Al-Takeyya, apparently

Photo of Mubin Shaihk, courtesy of The Toronto Star

What can you buy for $300,000 these days?

Two years ago there was a huge media flare up when combined police forces and the Canadian Security Intelligence Service (CSIS) allegedly cracked a nest of 18 wannabe Muslim terrorists. Since then the number has dwindled to 11, with charges against 7 being stayed.

The trial of these folks that has been trundling along for a week suddenly took a steep dive south yesterday and the day before.

The prosecutor's case mainly hangs on the testimony of a police informant, Mubin Shaikh, who was paid $300,000 for his services in infiltrating the group and attending its alleged terrorist training camp. Two days ago, under cross examination, the witness agreed with a defence lawyer that the leader of the group was engaging in a fantasy world with his calls for jihad. He also contradicted other evidence he had given by saying that the youth at the camp did not know its real purpose. Yesterday, the prosecutor turned on its own witness and, in effect, called him a liar.

I loved Shaikh's response to this attack: "I seek refuge with Allah for such an implication."

I remember when these guys were arrested how the authorities went out of their way to describe them in ways that had nothing whatsoever to do with Islam: "They come from all walks of life." When you are a lawyer there is no substitute for thorough research. A little less analysis from the perspective of political correctness and more Islamic scholarship would have better suited the purpose. The prosecutor ought to have familiarized himself with the concept of Al-Takeyya.

See a fuller explanation of this religiously sanctioned practice of deception at this site, but the shorter version is outlined below.

Lying in Islam

By Abdullah Al Araby

Like most religions, Islam in general, forbids lying. The Quran says, "Truly Allah guides not one who transgresses and lies." Surah 40:28. In the Hadith, Mohammed was also quoted as saying, "Be honest because honesty leads to goodness, and goodness leads to Paradise. Beware of falsehood because it leads to immorality, and immorality leads to Hell."

However, unlike most religions, within Islam there are certain provisions under which lying is not simply tolerated, but actually encouraged. The book "The spirit of Islam," by the Muslim scholar, Afif A. Tabbarah was written to promote Islam. On page 247, Tabbarah stated: "Lying is not always bad, to be sure; there are times when telling a lie is more profitable and better for the general welfare, and for the settlement of conciliation among people, than telling the truth. To this effect, the Prophet says: 'He is not a false person who (through lies) settles conciliation among people, supports good or says what is good."

... lying is a common policy amongst Islamic clerics and statesmen.

This point is proven by many incidences in the life of Mohammed. He often lied and instructed his followers to do the same. He rationalized that the prospect of success in missions to extend Islam's influence overrode Allah's initial prohibitions against lying.

Provisions for lying in Islam

Most Muslims are familiar with the principles of Islam that will justify lying in situations where they sense the need to do so. Among these are:

War is deception.
The necessities justify the forbidden.
If faced by two evils, choose the lesser of the two.

These principles are derived from passages found in the Quran and the Hadith.

... the Quran clearly reveal that Muslims' unintentional lies are forgivable and that even their intentional lies can be absolved by performing extra duties. It is also clear that if forced to do so, Muslims can lie while under oath and can even falsely deny faith in Allah, as long as they maintain the profession of faith in their hearts.

In the Hadith, Mohammed, emphasizes the same concept.

From "Ehiaa Oloum al-Din," by the famous Islamic scholar al-Ghazali, Vol. 3: PP.284-287:
One of Mohammed's daughters, Umm Kalthoum, testified that she had never heard the Apostle of God condone lying, except in these three situations:

For reconciliation among people.
In war.
Amongst spouses, to keep peace in the family.

The principle of Al-Takeyya

The Arabic word, "Takeyya", means "to prevent," or guard against. The principle of Al Takeyya conveys the understanding that Muslims are permitted to lie as a preventive measure against anticipated harm to one's self or fellow Muslims. This principle gives Muslims the liberty to lie under circumstances that they perceive as life threatening. They can even deny the faith, if they do not mean it in their hearts.

...a Muslim can pretend to befriend infidels (in violation of the teachings of Islam) and display adherence with their unbelief to prevent them from harming him.

Under the concept of Takeyya and short of killing another human being, if under the threat of force, it is legitimate for Muslims to act contrary to their faith. The following actions are acceptable:

Drink wine, abandon prayers, and skip fasting during Ramadan.
Renounce belief in Allah.
Kneel in homage to a deity other than Allah.
Utter insincere oaths.

The implications of the principle of Al-Takeyya

Unfortunately, when dealing with Muslims, one must keep in mind that Muslims can communicate something with apparent sincerity, when in reality they may have just the opposite agenda in their hearts. Bluntly stated, Islam permits Muslims to lie anytime that they perceive that their own well-being, or that of Islam, is threatened.
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Islamic Lawfare

A very cool synopsis by this very hot lawyer, Brook Goldstein, of the concept of Islamic Lawfare at this site.