Helping Hand for Relief and Development (HHRD), an Islamist charity recently called out by a number of Congressmen for ties to terrorism, recently distributed a secret memo to legislators aimed at discrediting research into HHRD. This memo claims that Sam Westrop, a noted expert on radical movements, "has previously falsely accused an individual of terrorism, as determined by a British court, for which he was ordered to pay 140,000 GBP."
In reality, Westrop did not "falsely" accuse anyone. That a UK court came to such a judgement is a perfect example of successful "lawfare," colloquially defined as the "misuse of legal systems and principles against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory."
According to terror-finance experts, the U.K.'s libel laws ensure that its courts are "particularly friendly jurisdictions for Islamists who want to restrict the dissemination of material drawing attention to radical Islam and terror financing." This is because they have weaker free speech protections. In America, libel plaintiffs must prove a disputed claim is false. In the U.K, the defendant must prove such a claim true. Litigation-wise, this is a seismic shift.
U.K. libel laws have weak free speech protections.
Also, British libel law doesn't confine itself to actual British citizens. This has led to absurd situations where individuals who post things on websites in far-away countries that are only viewed by a few people in the UK are nonetheless sued for libel in UK courts. While there have been reforms over the past decade to limit people bringing claims only tangentially related to the UK to British courts, the UK still has one of the most lawfare-friendly libel laws in the world.
The "chilling effect" on free speech is unmistakable. Khalid bin Mahfouz, a Saudi businessman accused of funding Al Qaeda, sued or threatened to sue in British courts more than thirty publishers and authors, including Americans, who wrote about his terror ties.
Famously, Cambridge University Press refused to publish the book "Putin's Kleptocracy: Who Owns Russia," because of fears of being sued by the Russian strongman (It was later released by Simon and Schuster, a U.S. company). In 2006, a former State Department official and a California professor wrote "Alms for Jihad," a book discussing terror finance, also to be published by Cambridge University Press. However, the aforementioned Mahfouz, who was tangentially named, claiming only that he had not knowingly funded terrorism, not that he hadn't funded it, sued. Cambridge University Press capitulated, agreeing to destroy further copies of the book, something former Congressman Frank Wolf (R-VA) called "basically a book burning."
Ennahda founder and notorious Islamist ideologist, Rached Ghannouchi, has successfully sued news sites in the UK on several occasions. Ghannouchi was banned from entering the United States for years due to his extremist views and the threats he made against the country. While Tunisian papers regularly accuse Ghannouchi of expressing commitment to democracy while still promoting an Islamist ideology, British news sites and channels are not able to do this without finding themselves in court. Earlier this year, Middle East Online was ordered by a British court to pay Ghannouchi £45,000 (over $60,000) as compensation after the site suggested that the Ennahda founder did not truly support democracy. Ghannouchi had already won similar lawsuits against the BBC and the Al Arabiya news channel-- receiving £165,000 (over $220,000) from the latter.
Radicals have tried similar things in U.S. courts, of course, but with significantly less success. Yale University Press and American scholar Matthew Levitt were sued by Kids In Need of Development and Relief, Inc. (KinderUSA), which Levitt claimed was a charitable front for terror financing. He and his publisher counter-sued using the so-called "Anti-SLAPP" statute aimed at deterring frivolous lawsuits. KinderUSA backed down shortly thereafter.
In 2010, Congress passed a law preventing U.S. Courts from enforcing British libel laws.
The gap between US and UK libel laws is so profound that, in 2010, Congress passed a law preventing U.S. Courts from enforcing British libel laws, to avoid the "chilling effect" this would have on free speech in the U.S.
Westrop's case traces back to his work for the British counter-extremist organization Stand for Peace, for which he wrote a 2015 blog post reporting that Subway Sandwiches had backed out of sponsoring a fundraiser with charities to benefit Gaza after learning that the event included radical speakers. One of them, Westrop noted, was Rahim Jung, a presenter on the Islam Channel, which, according to the Quilliam Foundation, an anti-radicalism organization founded by Muslims, features numerous "active members of Hizb ut-Tahrir, a global movement which is dedicated to establishing a totalitarian state." Westrop mentioned in passing that the CEO of the Islam Channel, Mohammed Ali Harrath, was a "convicted terrorist."
Westrop's article linked directly to an article in the prominent British newspaper The Guardian, which reported that Harrath "has a conviction in Tunisia for terrorism-related offences." Harrath had, in fact, been convicted in absentia. Additionally, there had previously been an Interpol notice out for Harrath for 20 years.
The reason for Harrath's troubles was that he was the Secretary General and founding member of the Tunisian Islamic Front (TIF), which by his own admission advocated armed insurrection against the Tunisian government. According to the U.S. State Department, TIF "claimed responsibility for the murders of four policemen" and "warned all foreigners to leave Tunisia." According to Department of Defense documents concerning a TIF member who was considered "one of the most dangerous Tunisian operatives," TIF is "suspected to be the armed wing of Ennahda."
Ennahda, a political party in Tunisia, is the latest iteration of a long-standing Islamist group previously known as "Islamic Tendency Movement," the founders of which were "greatly influenced by the (Muslim) Brotherhood's intellectuals," according to one scholar, with another explaining that Ennahda's early members "pledged allegiance to the Egyptian Muslim Brotherhood." While there is considerable debate about whether Ennahda has truly moderated into a less theocratic party since the fall of Zine El Abidine Ben Ali, the ruler of Tunisia from 1989-2011, or if its ostensible transformation is purely tactical, there can be little doubt about Ennahda's past violence and radicalism, nor of TIF's.
However, after the "Arab Spring," which originated in Tunisia, Ben Ali was overthrown and Harrath benefited from the transitional government passing an "amnesty" for anyone convicted before 14 January 2011 of crimes relating to the interior security of the state. This "amnesty" was widely supported in Tunisia as many of the prisoners were human rights activists, journalists, trade unionists and others who had peacefully expressed opposition to the totalitarian regime. However, beneficiaries also included terrorists such as Harrath and Abou Iyadh. The latter, shortly after being released, founded the designated organization, Ansar Al-Sharia, which was close to Al-Qaeda and was involved in the 2012 storming of the American embassy in Tunis and the setting on fire of the nearby American School.
Under American law, Harrath's claim would likely not even be litigated.
Under American law, Harrath's claim would likely not even be litigated. Harrath's membership in an organization believed to be a terrorist organization, as publicly stated by multiple branches of the U.S. Government, along with multiple think-tanks and experts, as well as the former Tunisian Government, let alone the fact of his underlying conviction, would have sunk any libel claim. Even if the subsequent amnesty was seen in the same light as the British courts, the "wire service" defense, which holds that repeating stories furnished by reputable wire services cannot be libelous and has a success rate of "almost 100%," would apply here.
It is on this amnesty that Harrath based his case, claiming that this amnesty made calling him a "convicted terrorist" libelous, in spite of the fact that he had been convicted of terrorism.
The law under which Harrath was convicted was not repealed, nor was there anything specific that stated Harrath himself qualified for this amnesty, nor was it clear that the effect of the amnesty removed the conviction as if it never existed, or merely forgave the consequences. Nor was there any indication that the memo had been published beyond the Official Gazette of Tunisia, a government run newspaper.
Yet under British libel law, it seems that citing a documented historical fact can be libelous if a successful coup d'etat results in a new foreign government establishing new facts, such as through amnesties for terrorist convicts.
Court documents show plainly that Harrath's lawsuit was aimed at silencing his critics.
If it wasn't already clear enough, court documents show plainly that Harrath's lawsuit was aimed at silencing his critics. When first approached about the offending blog, Harrath's lawyer repeatedly refused invitations from Westrop, coupled with offers to remove any offending information, if Harrath would explain why the text in question was libelous. But no explanation was forthcoming until well after the lawsuit had been filed. Harrath wasn't really interested in protecting his reputation. Indeed, there is no indication that he ever did anything to publicize the amnesty, or to claim that it rendered old charges moot, or mount any kind of effort to show that this amnesty vindicated him after decades as a well-known terrorism convict with Interpol on the lookout for him.
Harrath obviously choose to pursue Stand for Peace, a small organization that Westrop founded, rather than larger publications that had repeatedly noted the same facts. Westrop was effective in pointing out Harrath and other Islamists' extremism to influential people. But he did not have the financial resource to mount an aggressive legal or PR defense.
As HHRD's behavior shows, today, Harrath's lawsuit provides a quick and easy way for other Islamists investigated by Westrop to deflect valid questions about their ties to extremism and terror finance.
HHRD is the self-described "sister organization" of the Islamic Circle of North America, the foremost American franchise group of the South Asian Jamaat-e-Islami radical network, according to prominent scholars. And HHRD is desperate to distract from the Middle East Forum's work that Congress has put to good use, drawing attention to disturbing facts about HHRD and its activities.
These facts include HHRD openly sponsoring conferences with multiple branches of Lashkar-e-Taiba in Pakistan, the U.S. and U.N. designated terrorist group, and loudly bragging about having hundreds of ongoing projects with the Al-Khidmat Foundation. Al-Khidmat is Jamaat-e-Islami's Pakistani-based charitable arm, which is widely believed by journalists and experts to support Hizbul Mujahideen, a U.S. and U.N designated terrorist group, and has openly sent money to Hamas, a U.S. and E.U. designated terrorist group. All while HHRD is running interference in Congress against its foes.
Much like Harrath, HHRD isn't interested in addressing the details of the facts asserted. It merely wants to hush its critics. But it is imperative that those, like Westrop, who truly "stand for peace," not be silenced.
Clifford Smith is Washington Project Director at the Middle East Forum. Martha Lee is the research fellow of Islamist Watch, a project of the Middle East Forum.