2019 Why I’m Suing Maryland to Protect My Constitutional Right to Boycott Israel

Washington Report on Middle East Affairs, May 2019, pp. 49-52

PANEL: Fighting Against Illegal Settlements And for Free Speech

Saqib Ali

Janet McMahon: Now, as I mentioned, both of these lawsuits were filed in U.S. federal court. But this next one that we’re going to hear about is about constitutional rights and Americans’ constitutional rights.

Saqib Ali served as a Democratic member of the Maryland House of Delegates from Jan. 10, 2007 to Jan. 12, 2011. He was the first—but, I’m happy to say, not the only—Muslim member of that body. There has been one more since he was serving. After leaving the legislature, Saqib co-founded Freedom2Boycott in Maryland, an organization of Palestinian solidarity activists dedicated to preserving their constitutional right to boycott Israel and Israeli settlements. The group mobilized support against and ultimately helped defeat the passage of anti-BDS legislation in the Maryland House from 2014 to 2017.

After those measures failed to pass the House, Maryland Gov. Larry Hogan issued an executive order denying state government contracts to businesses that refuse to sign pledges not to boycott Israel. This past January, Saqib, a professional software engineer, sued Governor Hogan and Maryland Attorney General Brian Frosh over the anti-boycott executive order. Similar measures have been implemented in 25 other states and overturned by the courts in Arizona and Kansas.

Please join me in welcoming Saqib Ali, who will explain, “Why I’m suing Maryland to protect my constitutional right to boycott Israel.”

Saqib Ali: Thank you very much. Greetings, everybody. My name is Saqib Ali. I’m very honored to be here and thankful that you are attending. This is my first time at one of these conferences and it’s great. I’m really delighted to see the turnout and the great speakers.

I would like to say that I haven’t ever heard that the Israeli military has distributed manuals for arsoning people. I have never heard that before, and that was quite a surprise to me. I’m not sure if it’s true.

By way of introduction—Janet did a great job—but my name is Saqib Ali. I’m a 44-year-old Pakistani American. I live in Gaithersburg, Maryland, which is about half an hour from here. I’ve been a political activist in the Democratic Party, my local Democratic Party, for a long time. I’m sort of a progressive liberal, we’re a dime a dozen. I’ve been involved in many causes, local causes about protecting roadways and school funding and lots of good stuff like that. Back in 2006, I actually ran for the state legislature, and I won a seat in the Maryland House of Delegates. I served there for four years. After four years I ran for election for the state Senate. I lost a very close election, so that’s why I’m no longer in the legislature.

Since leaving the legislature, I found my voice as a Palestinian solidarity activist. I found that there is a lot of—not all, but there is a definite faction in my Democratic Party that was pushing anti-Palestinian measures. Now, when I was in the statehouse, when I was a legislator, the conversation about Palestine rarely came up. Because we were a state legislature, we didn’t deal with foreign policy, mostly. Now occasionally, it does come up, but when I was there it didn’t come up, so it wasn’t a big part of my activism.

But what happened is in 2014, the BDS movement started gaining traction and gaining followers and headlines. This organization called the American Studies Association, a rather small organization of university professors studying Native American history and U.S. history—they passed a resolution. They decided to issue a resolution to boycott Israel and the Israeli-controlled settlements.

I felt it was rather obscure, a little bit obscure. I hadn’t heard of this organization before that, but I was glad that they did it, but I didn’t think it was really an earth-shattering event. But apparently some people did, and were very offended by this. This gentleman whose name is Benjamin Kramer—he was a Maryland state delegate like me, I served with him. Now he’s a state senator—he was very offended and outraged by the American Studies Association, and he introduced a bill in the Maryland legislature, I think it was in 2014, saying that the UMUC [University of Maryland University College], which is a major university in Maryland, a state-funded university, should be shut down, defunded, because they have five professors who are members of this organization, ASA.

So I thought that was outrageous and ridiculously draconian. Just completely disproportionate, and mindless, and crazy, frankly. But I was very alarmed that it was going to pass. So I got together a bunch of like-minded people who I knew, and got them over to my house. We had a meeting, and we decided that we were going to fight this in the legislature. We would go to Annapolis and we’d testify against it. We would educate the legislators of why this is such a bad idea. And we would use it as an opportunity to try and put the occupation on trial, and force them to grapple with the occupation of Palestine, and the settlements, and all the other human rights abuses that come along with that.

So what we did, in 2014 we went to Annapolis—dozens of us, some of the people I see here in the audience today. We went to Annapolis. We testified against this bill. We told them how terrible it was. And we got a quite receptive audience, particularly African-American legislators, who are a large faction of the Maryland Democratic Party. They sided with us quite decisively, and the bill was defeated. We were surprised, but thrilled that it happened. That was in 2014. It came back again in 2015, slightly different, in 2016 and in 2017. And every year we’d go there. We’d testify against it. We’d analyze why it was different.

But the main thing was that the first bill was to defund that university. But what it morphed into was the kind of bills you see now all around the country which say, “if you want to do business with the state government, if you’re a contractor and you want to do business, you have to sign a pledge saying that you will not boycott Israel or—this is critical—Israeli-controlled territories.”

What does that mean?

Of course it means the settlements, and of course they are trying to blur any distinction between Israel and the settlements and say that they are one. So it’s very offensive— and, of course, flies in the face of U.S. policy and international law.

So this bill in 2017, most recently, said that anybody who boycotts Israel cannot do business with the state of Maryland, and the pension fund should divest from any companies that are engaged in such a boycott. Luckily, we killed that bill in 2017 also. That was in April 2017. Unfortunately, what happened was, in October of 2017 our governor decided to pass this same legislation as an executive order. Since he couldn’t get it through the legislature, what he did, he did an end run. He said, “I’m going to issue this executive order mandating that all state employees follow this rule.” It essentially does a similar thing.

Although we blocked it in the statehouse, our Republican governor, his name is Larry Hogan—I circled him right there [referring to a slide]—you can see this is the ceremony where he is signing the piece of paper saying that this is the order. There’s another gentleman here who’s standing by. His name is Reuven Azar. He’s the deputy head mission of the Israeli Embassy who’s standing right there and you can see. So when people are trying to tell you, well, this is just really about non-discrimination, right? This has nothing to do with the Israeli Embassy, the Israelis are not pushing this—I think it’s quite preposterous, right? The Israeli Embassy sent their attaché to this event, they stood around, the governor said he was doing it for Israel. We weren’t born yesterday. We know what’s going on, obviously. We’re not going to buy their attempts to spin otherwise when their laws and executive orders get in trouble.

So what does this mean now that it’s been in place? It’s been in place for almost a year-and-a-half. What it means is that there are lots of contracts on the state government’s website. I just screenshot part of one so you can kind of see for yourself [see the slide on the previous page]. On the left side is the first page of this contract. You can see that there is a juvenile detention center in Maryland, and they need dental services. So they needed dentists to come out and take care of these kids’ teeth who they’ve put in jail, or who are incarcerated for crimes. On the left side, you will see in this contract the paragraph and what the dentist must sign, must promise that they are not boycotting Israel or any Israeli-controlled territories.

You have to sign this form to apply for any contract, whether you get it or not. So anyone, even to apply, you have to sign this ­contract.

It’s one thing when people tell you this. But when you see it right there in black and white, it’s quite startling. And there are hundreds and hundreds of contracts like this that have nothing whatsoever to do with Israel—like we need somebody to install a carpet in the bus terminal, we need somebody to provide us sanders for the roads, we need someone to power-wash our facilities, we need somebody to provide food trays at the hospital. All the businessmen who provide these things have to sign these silly, ridiculous contracts. It’s outrageous.

At the bottom, you can see, you can’t not sign this thing, right? You have to affirm under penalty of perjury that you swear to the aforementioned clause. What happens, of course, if you sign something under the penalty of perjury which is false? So I boycott Israel and I cannot sign this. If I sign this, I risk going to jail. Let me remind you, every state does their anti-BDS law slightly differently. In Maryland, they did it such that you have to sign this form to apply for any contract, whether you get it or not. So anyone, even to apply, you have to sign this contract.

As atrocious as that sounds, that was the Achilles heel of the governor’s executive order, because this gave me standing to sue, OK? Because in many other states, once you get the contract that you have applied for, then they make you sign this form. But in Maryland, they thought they were being clever, and they said, “anybody who applies—even to apply—you have to sign this form.”

So, what happened was, in December of last year I got a call from the Council on American-Islamic Relations, also known as CAIR, which is an excellent civil rights organization. Free speech advocates, absolutely wonderful people, and I owe them a great, great debt of gratitude. Their lawyer called me and said—well, what happened was, I wanted to apply for a contract and CAIR has provided me pro bono representation to do so. So as I wanted to apply for one of these contracts and I was restricted—let me step back one second, sorry. I’m a software engineer by profession. I’ve been doing professional software engineering for more than 20 years. I have a long breadth of experience and knowledge about this particular field, and I decided that I wanted to apply for a contract in the state of Maryland. I legitimately want to do business with the state Maryland, and I want to fulfill some of their software needs. So I sought to apply for one of these contracts and, of course, the first thing I noticed was one of these clauses. I decided that I would sue, and CAIR provided me pro bono representation to do so.

On Jan 9 of this year, we filed a lawsuit in federal court, and [pointing to a slide] you see the CAIR staff standing next to me suing the governor of Maryland, Larry Hogan, saying that he violated my civil rights. There are three software contracts that I am seeking to get, I want to get. I can help the state of Maryland and I can make some money while doing so. But the governor is conditioning that on me giving up my First Amendment free speech rights.

Boycotting Israel is clearly, clearly First Amendment protected speech, and I should not have to give up my speech to conduct business with the state of Maryland. So I filed the lawsuit on Jan. 9 suing Governor Hogan, saying that he’s violating my civil rights. I should be able to apply for these contracts. And because I have not been able to apply for these contracts, I have suffered financial and career damage. So that’s where we are.

We filed the lawsuit on Jan. 9. Earlier this month the governor responded with something called a motion to dismiss, saying that, “no, no, no, this person can’t sue because he doesn’t have standing and because he never really applied.” So CAIR’s lawyers will be responding very soon, and we think that we have good arguments. I’m restricted in what I can say without jeopardizing the case, that’s why I’m trying to be extra careful here. So that’s where we are at. But we think that this case will succeed, and we think the issues are very clear cut.

NAACP v. Claiborne Hardware said that political boycotts are afforded the highest level of protected speech under the First Amendment. The governor is arguing that political boycotts are not protected free speech. That’s part of the nub. So based on the case history, and based on the Supreme Court’s rulings, we think we have a strong case. We’d love to see similar cases appear in every one of the other states. So that’s about it. I appreciate your attention and applause. Thank you very much.

Martin McMahon: Good job.

Questions & Answers

Janet McMahon: OK. So we have a few questions for our panelists. This is for you, Saqib. Arizona SB 1167 was approved on Wednesday by the legislators. It was revised from the previous anti-BDS bill to only apply to companies with more than 10 employees. Do you think this will hold up in court? I know you’re not a lawyer.

Saqib Ali: I’m not a lawyer and I’m not involved in defending that case, of course, but I think it may hold up, what they have done. What happens is these bills are unconstitutional. People sue saying that they’re unconstitutional. What the legislators do, they say, “oh, OK, it doesn’t really apply to you.” That’s basically what they do. They try to carve out people who are impacted by these bills, and have lost their jobs, to say it doesn’t really affect you. So what is the point exactly of these laws if anytime somebody is impacted by them the legislator runs away and says, “no, no, no, no, we didn’t mean you.” Well, who do you mean then? Who do you mean?

I’ll tell you who they mean. They want to silence people, and they think nobody is going to bother to challenge it, and simply by having the laws on the books they can silence and stigmatize Boycott, Divestment and Sanctions. So that’s their real plan and what they hope to do. And, of course, they hope to comingle and blur any distinction between Israel and the settlements, right? They like to say, you’re boycotting Israel even if you boycott Hebron, or Ariel, or Efrat.

Janet McMahon: A couple of questions for Martin. Do you think the settlers should be legally deemed combatants rather than civilians?

Martin McMahon: Well, having served in the U.S. Army in a MASH unit, I guess I’m qualified to answer that. There is a rogue element in the settler population, but make no bones about it: this is settlement militia that’s funded by our rich Jewish donors and Christian evangelicals. There are 20 or 30 members in this militia unit. When they go out and maim and murder Palestinians, I think they fit the definition. And they have done a lot of nasty things. I don’t have the time to go into all of it, but I think they’re combatants. They’re armed. They go after Palestinians who are armed with pitchforks in their olive groves. I think they’re combatants. Does that answer the question?

Janet McMahon: Can you also explain a little more who the plaintiffs and the defendants are in this case?

Martin McMahon: I was remiss. We have Palestinians. We have Palestinian Americans.

Janet McMahon: As plaintiffs.

Martin McMahon: As plaintiffs. It may come as a surprise to you. These Palestinians want the State Department to reclaim their property. We have folks who had lost $3-4 million of real estate stolen by settlers, confirmed in an Israeli government report—forged deeds, by the way. So the Palestinians are in the lawsuit and Al-Tamimi is the lead plaintiff. He’s been arrested 12 times, tortured 10 times, lost a brother-in-law and a sister because of settlers who murdered them. His crime? Every Saturday he shows up in protest of settlement encroachment. The other Palestinians are folks that have lost their homes, lost their children, lost their siblings, lost their olive groves and everything else.

Janet McMahon: And the defendants are Americans like Sheldon Adelson.

Martin McMahon: Well, yeah. Defendants are rich people and also 501(c)(3)s. I believe if you got rid of the $2 billion money laundering scheme that occurs every year, you’d put a dent in the ability of these settlers to expand settlements. Maim and murder their Palestinian neighbors, arm themselves with Kalashnikovs. That’s where the money comes from. So we’re going after the people who promote arms trafficking.

You can’t, I can’t, believe it—that America, a country I love—and I think we have to educate the people in the hinterland about this—there are people who are spending a million dollars promoting violence in the OPT in contradiction of President Bush’s executive order and President Clinton’s order. And they take tax write-offs because the settlers are out to purchase Kalashnikovs. So we’re going after those people as defendants.

Janet McMahon: OK. This is not a question for Martin, but it’s a statement: “My Palestinian family was harassed for 10 years by our neighbor. We came to you for advice. We followed your advice and we won the case in the court. The harassment included smearing our cars with Swastikas over and over by our Jewish neighbor. Any thoughts? Thank you, Mr. McMahon. God bless you.”

Martin McMahon: Unfortunately, we get too many requests to help. I’m a small law firm. I must have contributed $120,000 to this case so far, my own money, with law clerks and associates. I’m glad this client felt that he got satisfied. I think you all know in this room, there’s an unequal distribution of wealth in America, which is imperiling our democracy and will kill us over time. That allows rich people to gain access to top law firm talent. Look at the 30 law firms I’m battling. So I think we have to do something about that issue.

I try to make myself affordable in some fixed-fee arrangement to bring on lawsuits that I think are viable. As a Jewish psychiatrist friend said to me one day, “Martin, you can’t air-condition the world.” He said, “Remember what we say in New York: you’re pissing on my head and you’re telling me it’s raining out.” So I try to do the best I can with limited resources. There are a tremendous number of great lawyers out there. But, gee, lawyers come up to me everyday and say, why do you represent those people, those Muslims? You have banks. I said, I don’t know, I’m Irish. Does that answer the question?

Janet McMahon: It sure does. So this last question I think will lead into Conor Kelley, who will tell us about what’s happening in our final Ideas Fair. What can people and groups do to help you win the lawsuit against Sheldon Adelson and the settlers? Who can we talk to? And Conor, you can tell us where we can talk to him after the break.

Martin McMahon: I’m sorry. That’s for me?

Janet McMahon: Yes.

Martin McMahon: What is it?

Janet McMahon: My point is that you’ll be around during the afternoon break and you can talk to people who want to find out how they can help you in this case.

Martin McMahon: OK. I mean, at $395 an hour, do I get to bill?

Janet McMahon: Absolutely. Absolutely. OK, come on.

Martin McMahon: No, I’ll be available. I’m extra available, and feel free to send us an e-mail, especially young people out there. We need young people to go after the purveyors of hate in America. I’m dedicating my time to go after those purveyors of hate, including Trump. Trump is going to be sued for a billion dollars in my next lawsuit. To send Adelson a message, I’m also naming his lovely wife, Miriel [sic], who happens to be an IDF veteran.

Audience member: Miriam.

Martin McMahon: Miriam. I’m sorry. Comments from the peanut gallery. But the lawsuit is all about denationalization of the Palestinian people, dehumanization of the Palestinian people, and the establishment of an apartheid regime in the occupied territories.

Janet McMahon: OK.

Conor Kelley: Thank you, Martin.

Martin McMahon: There are a lot of bad people.

Janet McMahon: Yeah.

Martin McMahon: I’m way over my time.

Conor Kelley: You still have one last chance to talk to Martin and others at our Ideas Fair in our last afternoon break coming up here, and a chance to still visit everyone on your passport to get a free beverage ticket. So please take a chance to stop by all the great organizations who can make some real change, and give some agency to things we’ve been talking about today.