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Klein the Slime v. Elena Kagan

WorldNetDaily's Aaron Klein has hurled repeated attacks -- many of them distorted or completely false -- at President Obama's Supreme Court nominee.

By Terry Krepel
Posted 5/24/2010

Back in 2001, when WorldNetDaily felt that The New Republic's John B. Judis didn't give it proper credit for a story it broke, it published an article with the headline, "Judis or Judas?"

That precedent is why ConWebWatch feels comfortable referring to WND writer Aaron Klein as Aaron Slime. Hey, if WND has no problem hurling juvenile nicknames around, we don't either.

Besides, our nickname is much more accurate. Judis did not commit a Judas-like offense; Klein is very much a master of slime in the form of distortions and guilt by association. Klein has committed much more serious journalistic offenses than failing to give proper credit -- he has repeatedly distorted and misled, and even lied, about Barack Obama and his administration.

ConWebWatch first noted Klein's attempts to play guilt by association through red-baiting, attempting to tie Obama, however desperately and tangentally, to communism and socialism. This was expanded in his book "The Manchurian President," which, as ConWebWatch predicted, piles dubious attacks and false smears on top of the red-baiting (which we have detailed at Media Matters).

Klein has brought these same tangental attacks and refusal to tell the full truth to his coverage of Elena Kagan, Obama's nominee for the Supreme Court.

Klein kicked things off with a flurry of attacks immediately upon Kagan's nomination. A May 10 article uncritically rehashing right-wing attacks on Kagan without identifying any of the groups whose attacks he cited by their political ideology -- thus signifying to readers the ideological bias they are bringing to the discussion. These attacks include an assertion by the right-wing Move America Forward that Kagan is "radically anti-military" -- a claim that is utterly false.

In another May 10 article, Klein purported to read the contents of Kagan's mind when she was a college student, baselessly claiming that in her Princeton undergraduate thesis, Kagan "lamented the decline of socialism in the country as "sad" for those who still hope to 'change America.'" In fact, Kagan never claimed in her thesis that she personally supported socialism.

Klein selectively quoted Kagan to assert in yet another May 10 article that she "argued certain forms of speech that promote 'racial or gender inequality' could be 'disappeared,'" presumably by the government. It's not until the fourth paragraph that Klein noted that Kagan is referring to the "uncoerced disappearance" of such speech [emphasis ours]. This means Klein was lying when he suggested Kagan favored forced "disappearance" of such speech.

Klein repeats this fraudulently selective misquoting of Kagan in several successive articles despite its complete untruth.

Klein tried out a new smear in a May 12 article:

President Obama's nominee for the Supreme Court, Elena Kagan, helped shield Saudi Arabia from lawsuits filed by families of 9/11 victims seeking to target countries and leaders who helped finance al-Qaida.


"I'm very concerned about her views on executive power and her views with respect to the separation of power," Stephen A. Cozen, the lead attorney in the case for 9/11 victims, told WND.

"I believe she must be asked questions about whether or not citizens who are attacked inside the U.S. have the right to file suits domestically against terrorism financiers," said Cozen, the founder and chairman of Cozen O'Connor, a Philadelphia-based law firm with 24 offices throughout the country.

Cozen recounted to WND an April 2009 meeting he held with Kagen to present the case for his clients – thousands of family members and others affected by the Sept. 11, 2001, attacks who sought damages from the Saudi kingdom, Saudi high commissioners and the country's rulers.


Kagan's friend-of-the-court brief argued Cozen's case would interfere with U.S. foreign policy. She urged the Supreme Court not to hear the case.

In her brief, Kagan acknowledged inconsistencies with the lower court rulings and even conceded there were legitimate questions about whether the Immunities Act should apply in Cozen's case for the 9/11 victims.

Still, she sided with the Saudis, who had presented their case directly to Kagen that the terror victims lawsuit was harming U.S.-Saudi relations.

The Supreme Court sided with Kagen and refused to here the case.

Aside from the numerous grammatical errors in the original version of the article -- "here the case"? -- and misspellings of Kagan's name, Klein is hiding the truth about Kagan's brief.

First, Klein didn't bother to explain the origin of Kagan's brief. When Cozen appealed his case to the Supreme Court after it had been dismissed by a federal appeals court -- which pointed out that U.S. law bars such lawsuits unless the State Department has found that a government provided material support for terrorist groups, which the government has not done regarding Saudi Arabia -- the Supreme Court in February 2009 asked the U.S. Solicitor General's office to weigh in on the case. The amicus brief that was filed was done so by the Solicitor General's office, not by Kagan herself, as Klein falsely suggests; the names of five other attorneys appear on the brief in addition to Kagan's.

Second, while Klein claimed that Kagan "sided with the Saudis, who had presented their case directly to Kagen [sic] that the terror victims lawsuit was harming U.S.-Saudi relations," he also couldn't be bothered to explain the details of her argument (nor could he be bothered to provide a link to the brief). The Philadelphia Inquirer did the work that Klein wouldn't:

Kagan, in a 22-page amicus brief filed yesterday with the Supreme Court, said U.S. law generally barred lawsuits against foreign governments for supporting terrorism unless they met narrowly tailored exceptions.

Kagan said none of those exceptions applied, and she advised the court not to hear the case.

In her brief, Kagan said the U.S. Foreign Sovereign Immunities Act, which governs lawsuits by American citizens against foreign governments, permits such lawsuits only if the U.S. State Department has issued a finding that the foreign government is a terrorism supporter, or if the government has been directly involved in a terrorism act within the United States.

It noted that the State Department has issued no such finding regarding Saudi Arabia and concluded Saudi government financial support for radical Islamist charities was too far removed from the 9/11 attacks themselves to cause the Saudi government to be liable.

Klein offered no evidence that her arguments deviated in any way from established law. Klein also offered no evidence that Kagan's deliberate goal in her brief is to "shield Saudi Arabia from lawsuits," as he suggested.

The Supreme Court ultimately decided not to hear Cozen's appeal.

That smear having utterly collapsed, Klein tried the guilt-by-association route in a May 13 article by highlighting Kagan referring to former Israel Supreme Court president Aharon Barak as "my judicial hero." The rest of the article is spent attacking Barak, whom he calls "universally regarded as one of the most extreme liberal activist high court justices in history."

But Klein never actually proves that assertion. While he quoted various legal analysts calling Barak an "activist judge," Klein failed to explain how that translates to liberalism -- at no point does anyone call Barak "one of the most extreme liberal activist high court justices in history." Klein also wrote:

Barak worked tirelessly to place the judicial branch over the executive and legislative, subjecting even the Israel Defense Forces to judicial scrutiny on matters of self-defense.

For example, he famously ruled numerous times in favor of the Palestinians and against the IDF, which petitioned to construct the country's security fence on private Palestinian land in areas that had been used by terrorists to infiltrate Israeli population centers.

Barak's rulings halted the security fence construction and were blamed for scores of terrorist infiltrations from the very areas where Barak had stopped the fence from being built.

Barak also ruled the Israeli Supreme Court had the right to judge the IDF during wartime and that his court could counter military orders.

At no point did Klein demonstrate how ruling "in favor of the Palestinians and against the IDF" equates to being "extreme," or even "liberal." Nor did Klein cite the specific decisions regarding the Israeli security fence that he finds to be "liberal."

Such attacks, of course, are a highly selective reading of Barak's record. For instance, a High Court panel headed by Barak ruled that the route of one section of the security fence was indeed legal. And here's what the Israel consulate general's office in Los Angeles had to say about Barak and the security wall:

The decision by the High Court of Justice regarding the planned route of Israel's security fence in the northern Jerusalem area significantly emphasizes the important position of the rule of law and judicial review over Israel's security initiatives to protect its citizens from Palestinian terrorism. It also recognizes Israel's right to build a security fence that balances the security concerns of combating terrorism with the humanitarian needs of the local Palestinian population.

The court clearly determined that the goal of the fence is security in nature. President Aharon Barak wrote that the court "reached the conclusion based upon the factual background that the consideration for building the fence was security."

The court ruled, in accordance with international as well as Israeli law, that Israel's security authorities may plan the route of the fence based upon considerations of military necessity. At the same time, the court emphasized that the route must also take into account humanitarian considerations and a balance must be created between these two issues.

The court ruled that the Israeli government must reroute the planned fence in the northern Jerusalem area to balance those interests. The court rejected the claim of the appellants that, if the concerns were security in nature, the route of the fence must be along the "Green Line."

The court emphasized that security, and not political concerns, must determine the route without any connection to this or another line solely by balancing the concerns of security and humanitarian matters.

And then there's this statement, as reported by Israeli National News:

To those who criticize the security fence, claiming that 'the damage outdoes the good', Barak responded: "Similar statements are made by others – one could call them the Israeli left – against the involvement of the High Court in matters pertaining to Judea, Samaria and Gaza. They say that the court overstepped its authority, viewing its ruling as negative. Why? Because most petitions are rejected, and they allege that this "legitimizes the occupation", and that therefore it would be best not to involve the court. I am of the opinion that this would be the most grievous of errors. The percentage of rejected petitions from Judea, Samaria and Gaza – is the same as the percentage of rejected petitions from inside Israel. The situation for Palestinians in the region would be far worse if it weren't for the High Court."

So Barak did, in fact, take security into consideration regarding the fence, but he balanced it with concerns about the population being affected by it. In other words, Klein is lying again.

Further, as Media Matters reported, none other than conservative Supreme Court Justice Antonin Scalia has professed his respect for his "good friend" Barak. That is curiously absent from Klein's reporting.

Perhaps that's because he was too busy trying to dream up new ways to smear Kagan. His next attempt came on May 16, when he asserted that Kagan was a "listed member" of and donated money to a "pro-abortion group," the National Partnership for Women & Families. At no point does Klein identify where Kagan was a "listed member"; while Kagan has previously described herself as a member of the group, she also stated in a questionnaire for her nomination for solicitor general that "I have no current memory of whether such contributions ever made me a member of this organization." That seems to run contrary to Klein's assertion that Kagan was a "listed member" of the group.

Klein also misportrayed the nature of the group Kagan may or may not have been a "member" of. As Media Matters detailed, the National Partnership for Women & Families "promote[s] fairness in the workplace, reproductive health and rights, access to quality affordable health care, and policies that help women and men meet the dual demands of work and family." Portraying it only as an abortion-related group is highly dishonest.

Undaunted, Klein tried to smear Kagan yet again with a May 17 article carrying the headline "Kagan: Flag-burning OK," in which Klein claimed that Kagan has "argued the government may not ban flag-burning protests." Klein did not note that this position is the same one the Supreme Court holds, and that none other than Antonin Scalia joined the majority in that ruling.

Klein tried the guilt-by-association route in his May 18 article, essentially claiming that because Kagan hired "radical regulatory czar" Cass Sunstein to work at Harvard Law School, Kagan must share Sunstein's views -- indeed, Klein claims that "Sunstein, like Kagan, has advocated extraordinary restrictions on speech." But Klein once again had to resort to selectively quoting Kagan to make his case, obscuring what she actually said.

In addition to repeating the false claim that Kagan want certain speech "disappeared," Klein also wrote that "in a 1996 paper, 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,' Kagan argued it may be proper to suppress speech because it is offensive to society or to the government." In fact, Kagan specifically stated that "government may not limit speech because other citizens deem the ideas offered to be wrong or offensive."

Klein claimed that "Kagan shows strong beliefs for court intervention in speech, going so far as to assert free speech should be weighed against 'societal costs'" -- which is the very same view that the Supreme Court holds. Klein also ignored the specific instances Kagan cites in which "societal costs" outweigh free speech, such as child pornography, obscenities and "fighting words" -- again, not a deviation from prevailing court rulings.

Further, Klein has never told his readers that legal experts find Kagan in the mainstream on issues of free speech -- presumably because the truth would conflict with his lie-ridden anti-Kagan narrative.

Klein also misled about Sunstein. He highlighted Sunstein's "proposing that Congress hold hearings about mandates to ensure websites post links to a diversity of views on issues" without mentioning that Sunstein has since renounced that idea.

Finally, there's Klein's incredibly illogical premise that because Kagan hired Sunstein, she is responsible for every view Sunstein has ever uttered. Klein has been silent about the fact that Kagan also hired conservative professors at Harvard Law School, like Jack Goldsmith, who while in the Bush administration wrote memos advising how to skirt Geneva Convention restrictions on CIA transfer of terror detainees.

There are many ways to describe Aaron Slime's, er, Aaron Klein's aggressive determination to smear Kagan with lies and distortions -- biased, unethical, agenda-driven -- but one word perhaps best sums it up: slimy.

If WorldNetDaily can tar a writer with the name of the most notorious betrayer in history for the minor offense of insufficient, we can speak truth to power by condensing Klein's much more serious journalistic crimes into a single, accurate sobriquet.

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