Editorial

The latest terrorist tactic: litigation

On December 29, Scandinavian authorities arrested five terrorists planning an attack in Denmark. Almost as interesting as what they targeted is what they spared and the lessons it holds for future counterterrorism efforts.

The plot was to storm the Copenhagen newsroom of Jyllands Posten and murder its staff. It was the fourth attempt this year by Islamic extremists to punish the newspaper that published the Mohammed cartoons. But the terrorists are guilty of selective prosecution. They have yet to strike Politiken, which also published the cartoons, even though its offices are literally next door.

It is logical that Jyllands is the principal target because it sparked the controversy. It was Jylland’s editor, Flemming Rose, who originally commissioned the cartoons in 2005. A Danish comedian had told interviewers he would publicly urinate on the Bible, but would not dare do the same to the Koran. Rose’s message was that Islam should be treated equally, not specially.

Nevertheless, there is a second reason Politiken is not a target. It already surrendered, vanquished by the nonviolent instrument of a civil lawsuit.

In 2008, extremists nearly murdered Kurt Westergaard, who drew one of the original cartoons. In response, Politiken reprinted the cartoons as part of a unified stand against intimidation of the press. The defiance didn’t last. A Saudi law firm claiming to represent 94,923 descendants of Mohammed threatened it with legal action and the paper caved. On February 26, 2010, it effectively apologized for defending free speech.

This is a textbook illustration of how litigation has become a complementary and sometimes superior strategy for Islamic extremists who traditionally relied on physical violence alone to intimidate their opponents.

In Europe especially, their cause is aided by vague hate speech laws that make it all too easy to punish legitimate discourse on Islam. Last month, a Danish Member of Parliament pleaded guilty to violating hate speech laws with comments he made on Islam’s treatment of women. He had agreed to forgo parliamentary immunity in order to fight the charges on the merits only to discover that truth is no defense. On January 24, another Danish politician, International Free Press Society president Lars Hedegaard, will stand trial for similarly speaking his mind. He also faces a potentially costly libel suit. There were reports last summer that Denmark’s hate speech laws would be reformed to prevent abuse, but this has yet to happen.

In the meantime, authorities can borrow from the extremists and use civil litigation as a complementary strategy in counterterrorism operations, particularly in the US.

Forcing terrorists to fight simultaneous criminal and civil proceedings would make it difficult for them to focus their defense resources effectively. This has been the experience in white-collar cases when the Justice Department and a regulatory agency pursue parallel investigations against a target company.

While criminal defendants can get court-appointed lawyers, civil defendants pay out of pocket and the plaintiff’s burden of proof is typically lower. In addition, the broader scope of discovery in civil cases may produce information otherwise unavailable to prosecutors. Finally, parallel lawsuits can pin terrorists between remaining mum in the civil suit and likely losing, or fighting back and forfeiting their right to “plead the Fifth” in the criminal case. Defendants might dodge these difficulties by delaying the civil proceedings, but courts do not always permit that.