Israel lobby group trying to sue Steven Salaita

Graffiti on the Israeli-built wall dividing the occupied West Bank city of Bethlehem promotes the BDS — boycott, divestment and sanctions — movement.

Ryan Rodrick Beiler ActiveStills

An Israel lobby group is trying to expand its efforts to sue academics who support Palestinian rights, as part of a lawsuit against the American Studies Association.

It has asked the judge to add Steven Salaita and three other individuals to the list of defendants as part of an expanded complaint.

But lawyers call it a continuation of efforts to intimidate and punish academic associations and scholars who dare to disagree with the plaintiffs’ strident pro-Israel views.

“This is a harassment campaign at the highest levels,” Radhika Sainath, a staff attorney at Palestine Legal, said, adding that professors targeted by the lawsuit “have been subjected to death threats, rape threats and other misogynistic and racist hate mail.”

Defense lawyers say the real target of the lawsuit is the US Campaign for the Academic and Cultural Boycott of Israel, and the boycott, divestment and sanctions (BDS) movement more generally.

They are asking the judge not to accept the expanded complaint.

Frivolous and flawed lawsuits

In April 2016, several current and former members of the American Studies Association (ASA) filed a lawsuit in federal court against the group over its 2013 resolution to boycott Israeli academic institutions.

The force behind the lawsuit is the Louis D. Brandeis Center, an Israel advocacy organization that has for years worked to smear Palestine solidarity activism as anti-Semitism and attempts to suppress it with frivolous lawsuits and bogus civil rights complaints.

Its president, Kenneth Marcus, is an attorney for the plaintiffs. In October, the Trump administration tapped Marcus for a key civil rights post in the Department of Education that will allow him to advance his campaign to repress supporters of Palestinian human rights from within the federal government.

But in March this year, the lawsuit suffered a major setback when a federal judge in Washington, DC, threw out the plaintiffs’ key claim that the ASA had acted beyond its charter by passing the boycott resolution – a claim that it was acting ultra vires, in legal language.

“The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians,” US District Judge Rudolph Contreras wrote. “Thus, it was not contrary to the ASA’s express purposes.”

But the judge allowed other parts of the lawsuit to proceed, including accusations of “breach of contract” and “corporate waste.”

In addition to the ASA, the original lawsuit named several individuals as defendants: Lisa Duggan, Curtis Marez, Avery Gordon, Neferti Tadiar, Sunaina Maira and Chandan Reddy.

The lawsuit claims that these academics at institutions across the United States spearheaded the boycott initiative. Duggan and Marez are both past presidents of the ASA.

In November, the Brandeis Center filed an expanded complaint adding four more academics as defendants: Salaita, Jasbir Puar, J Kehaulani Kauanui and John Stephens, the ASA’s executive director.

Salaita gained broad international attention in the summer of 2014, when he was fired from his new position at the University of Illinois after posting tweets critical of Israel’s assault on Gaza.

“Lurid fantasies”

The amended 83-page complaint alleges that a “cabal of USACBI leaders” surreptitiously took over the ASA and used their positions on its executive committee and national council to foist the boycott resolution on the association’s unsuspecting membership.

It alleges that in the run up to the 2013 ASA annual meeting that approved the boycott, “certain individual defendants continued to collaborate with USACBI leadership and continued to keep secret their collaboration with USACBI.”

Jesse M. Fried and Eugene Kontorovich, advisers to the plaintiffs, summarized the conspiracy theory in a Wall Street Journal article earlier this month.

Citing snippets of emails written by Puar, Maira and others, taken from among thousands of emails obtained during discovery, Fried and Kontorovich claim that “the American Studies Association’s decision to boycott Israel was orchestrated by a small cadre of academics who infiltrated the ASA’s leadership to demonize the Jewish state.”

The amended complaint’s sharpened focus on Maira comes just as she has a forthcoming book on the academic boycott of Israel and the struggle for justice in Palestine.

In a letter to the editor, David Lloyd, an ASA member and English professor at the University of California Riverside, responded to what he calls Fried’s and Kontorovich’s “lurid fantasies.”

Lloyd writes that “Several years of very public and open grassroots organizing preceded the resolution’s passing, including numerous advertised panels on the topic.”

Lloyd accuses the lawsuit’s authors of a “ludicrous” attempt to label “democratic deliberation and advocacy suspect and sanctionable activities.”

Similarly, Palestine Legal describes the expanded complaint as “a desperate attempt to bury the single most important fact: the ASA membership voted by an overwhelming democratic majority – 66 percent – after months of open debate, to support a boycott in support of Palestinian equality.”

Punishing opinions

Lawyers for the ASA, from the Washington firm Whiteford, Taylor & Preston, are asking the judge not to allow the expanded complaint.

They argue in a motion filed in November that the plaintiffs’ amended complaint is “a continuation of their public relations campaign through litigation, whose focus is not truly the well-being of the ASA, but punishment of persons and entities who dare take contrary positions regarding boycotts of Israeli academic institutions.”

They say it repeats allegations the court already threw out and tries to resurrect the dismissed ultra vires claims, but “just dressed up differently.”

According to the motion, the new complaint is a “thinly veiled attack on another organization which is not even a party to this case,” namely USACBI – the US Campaign for the Academic and Cultural Boycott of Israel.

The ASA’s lawyers note that the plaintiffs spend “several paragraphs discussing a gentleman by the name of Omar Barghouti, a nonparty and a founder of the BDS movement.” The complaint also brings in all kinds of other extraneous opinions from USACBI or people associated with the BDS movement, “but fail[s] to set forth the language of the ASA resolution itself.”

This “telling omission” the defense lawyers argue is because the plaintiffs know that the ASA resolution differs from USACBI’s stances, and it underscores the lawsuit’s real motivation of silencing dissent on Israel.

The timing of the new complaint, according to the ASA’s lawyers, is meant to “ratchet up” the pressure to deter other scholarly associations that “might consider a boycott against Israeli academic institutions.”

Notably, the Brandeis Center’s Kenneth Marcus attempted to publicly spin the court’s March dismissal of the ultra vires claims not just as a “victory” but as one that “is much bigger than merely the ASA.”

Marcus specifically cited the supposed deterrent effect of the lawsuit, claiming that “Academic activists are beginning to think twice before adopting anti-Semitic and unlawful policies.”

Threats, harassment and smears

According to the ASA’s lawyers, individuals targeted by the lawsuit began to receive hate mail specifically referencing Marcus’ press release.

The harassment was severe enough that the judge granted a defense request for a protective order. This unusual move stops parties in the lawsuit from publishing personal information about the defendants that could be used to harass them.

The ASA’s lawyers also allege that the attempt to amend the complaint and add defendants was timed immediately before this year’s annual Middle East Studies Association conference, a forum which they say the plaintiffs hoped to use as an opportunity to “mine for data with which to harass anyone whose views differ from plaintiffs and their supporters.”

Of those the plaintiffs are trying to add as new defendants, Steven Salaita is perhaps the best known for being targeted by Israel lobby smears that ultimately destroyed his academic career.

But he is not the only one.

Jasbir Puar, a professor of women’s and gender studies at Rutgers University in New Jersey, has been the subject of vicious attacks by anti-Palestinian advocates for her work on Palestine, including pinkwashing – Israel’s propaganda painting itself as LBGTQ-friendly to deflect attention from its human rights abuses.

She has been accused of “anti-Semitism” and the anti-Palestinian blog Legal Insurrection alleged she spread “blood libels” for reportedly stating in a February 2016 lecture at Vassar College that Palestinians fear Israel has taken organs from Palestinian bodies without permission for use in scientific research.

Ignoring the facts

This campaign escalated in the weeks prior to the filing of the amended complaint: the far-right pro-Israel publication The Algemeiner ran an article in October attacking Puar over her new book The Right to Maim.

The article claims Puar “supports terrorism” and that she falsely accuses Israel of shooting Palestinians to deliberately maim and disable them.

A follow-up Algemeiner article reports on efforts to pressure Rutgers to suspend the “anti-Semitic” Puar and tries to link her with an alleged incident in which “a swastika was put on someone’s car.”

As such smear campaigns invariably do, the one against Puar flagrantly ignores the facts.

In an article for Jadaliyya responding to the smear campaign, Puar explains that she made no factual claims in her lecture about Israel harvesting organs, but rather “relayed a simple ethnographic observation” that some Palestinians “speculate that their bodies were mined for organs for scientific research.”

“This example was intended to highlight the daily terror that imbues Palestinians’ lives and the ways that fear for their bodily integrity animates every interaction with the Israeli state,” Puar adds.

According to Puar, “During the question and answer session, no one asked for further elaboration or clarification about why Palestinians might fear organ mining of their relatives’ corpses.”

But had they done so, she could have readily explained the facts underlying such fears.

Israel has admitted that for years pathologists at its Abu Kabir forensic institute did indeed harvest organs from dead Palestinians and others without the consent of their families.

This included the removal of livers, brains, breasts, wombs, testicles and prostates for research purposes, without permission.

The institute then compounded the violation by burying tissue samples in a mass grave without permission from the families, claiming it did not even know who the body parts came from.

And Israel’s practice of deliberately shooting or threatening to shoot Palestinians to disable them has been documented recently in Dheisheh refugee camp near Bethlehem.

In her book, Puar cites extensive evidence from human rights groups and Israeli media of such practices dating back to the first intifada three decades ago, when Yitzhak Rabin, then Israel’s defense minister, ordered soldiers to use “force, might and beatings” to crush Palestinian protests. Under Rabin’s leadership, soldiers deliberately broke the bones of Palestinian demonstrators.

Yet the amended complaint serves as a vehicle to further spread the smears against Puar, claiming that she is “infamous for anti-Semitic lectures condemning Israel, which she charges with maiming Palestinians, ‘pinkwashing,’ murdering innocent Palestinian children, and using the bodies of the dead and maimed Palestinians for scientific research, in the vein of Dr. Mengele and blood libels directed against Jews since at least the Middle Ages.”

It is undoubtedly no coincidence that Rutgers University, where Puar teaches, was previously the subject of a civil rights complaint backed by Marcus’ Brandeis Center claiming that administrators tolerated a hostile atmosphere for Jewish students, because of campus advocacy for Palestinian rights.

In 2014, the US Department of Education’s Office of Civil Rights – the office the Trump administration has now nominated Marcus to head – dismissed the complaint as baseless.

Writing in Jadaliyya, Puar highlights the purpose and effect of the harassment and smears: “The exercise of free speech and academic freedom becomes extremely constrained in such environments, where any information or research about the Israeli occupation of Palestine is a priori characterized as anti-Semitic.

New York case dismissed

So far the Israel lobby lawsuits against the American Studies Association haven’t fared much better. In addition to the setback in federal court in March, a New York State court last month dismissed altogether another lawsuit targeting the ASA.

The complaint filed in 2016 by an Israeli organization called Athenaeum Blue and White claimed that the ASA’s 2013 boycott resolution violated New York’s anti-discrimination laws.

But New York State Supreme Court Justice Carolyn Wade ruled that the case was baseless and the plaintiff had no standing to sue.

The court’s 6 November decision states that the plaintiff “acknowledges that it was accepted as a member of ASA.”

“There are no allegations that any of plaintiffs’ members were denied access to any of the programs hosted by ASA,” the ruling adds. “The pleadings are also devoid of claims that Israeli academic institutions were denied membership. Thus, plaintiff has not established an injury in fact.”

The plaintiff in the New York lawsuit was represented by David Abrams, director of the Zionist Advocacy Center.

In 2015, Abrams worked with the head of the Mossad-linked Israeli lawfare group Shurat HaDin to file a complaint against a US trade union that voted to back BDS.

The US National Labor Relations Board dismissed the complaint.

But as the Brandeis Center’s Kenneth Marcus and other Israel lobby lawfare operatives have made abundantly clear, the point of these legal proceedings is to punish and deter support for Palestinian rights.

Whether the plaintiffs win or not, they impose a cost by dragging their targets through the enormous emotional, financial and career costs of litigation.

Lawyers expect that the judge in the federal case will rule within the next few months on whether to allow the expanded complaint and the addition of new defendants.

This article has been updated since initial publication.