In a public hearing exclusively recorded and streamed by NewsBusters, on Friday, CNN defended their use of Taliban Sharia law in the courtroom. CNN’s lead counsel Deanna Shullman (of Shullman Fugate PLLC) repeatedly argued that the network was correct to suggest Plaintiff and Navy veteran Zachary Young took part in an illegal “black market” because he was getting women out of Afghanistan “without permission of the Taliban;” an argument that got some push back from Judge Scott Henry.
As NewsBusters previously reported, a major crux of the argument against CNN was that the term “black market” and how it played a huge role in the alleged defamation since it suggested that Young was a criminal who had taken part in illegal activity.
“Moreover, your Honor, the market was illegal,” Shullman declared. “CNN obviously does not condone the Taliban. It's ridiculous, but that was who was in charge at the time. And it's no dispute, your Honor, that they did not permit the evacuations.”
According to CNN (and despite them admitting they didn’t find evidence of illegal activity), since Young was pointing out the definition of “black market,” they were now right to paint him that way because he didn’t get “permission” from the Taliban to get those women out.
“They further admitted that the entire point, the entire point of the private evacuation market was to get people out without permission of the Taliban and without getting caught by the Taliban,” Shullman said. “So, there is an illegal black market in in evacuations. Young has put in no testimony that he had permission from the Taliban to move people. It's the whole point why he says his operatives waited for guards at the gate of Pakistan who would look the other way and let their evacuees in despite not having permission to leave the country.”
Judge Henry expertly thought up an equivalent situation to query Shullman. He wondered if CNN would think it would be illegal for people in Mexico to flee a town besieged by a drug cartel who forbade anyone from leaving. The question seemed to leave Shullman on her heels and she admitted getting out of that situation would be “a good thing”:
HENRY: So, in Mexico, if a cartel is restricting people from going somewhere and you run your car out of town against the cartels “law,” are you saying that somebody did something illegal by leaving that town because the cartel said no you can't go? I mean, that that seems to be the equivalent of what you're suggesting here.
SHULLMAN: Your Honor, what I'm – what I'm – Again, there's a disconnect between whether it's a good thing to get out of town because of the cartels and whether the cartels would have allowed it, and that's the issue here. Yes, it's a good thing to get people out of the country, but the truth is the Taliban didn't allow it, so you had to sneak around and to get it done.
Just before that point, Judge Henry asked a probing question about the validity of the Taliban’s supposed laws, questioning how one could know what they were and/or if they were codified anywhere? Shullman responded by saying the Judge was “putting an American spin on laws that are not written”:
HENRY: And where I, I mean, if I, you know, if I'm saying somebody did something illegal in the state of Florida. I point to some chapter and some section, sub subsection of a statute that says this in Florida makes it illegal. Where does it say in Taliban law adopted in Afghanistan in 2021, the fall of 2021, that this is illegal to do?
SHULLMAN: So, plaintiffs own expert –
HENRY: If I was to apply Taliban law as being the standard of whether he was doing something illegal.
SHULLMAN: This is where his own expert helps you with this, Your Honor, because the expert testifies, you can't think of it like that. This is not a place where there is a code of federal regulations in place. Laws as American, you're putting an American spin on laws that are not written, you know, put in organized leather-bound book –
But, as NewsBusters previously reported, CNN may have blown up their own legal argument with an article they published last week admitting that the Taliban had only just gotten around to codifying their brand of Sharia law.
“The 114-page, 35-article document seen by The Associated Press constitutes the first formal declaration of vice and virtue laws in Afghanistan since the Taliban seized power in 2021, when it also set up a ministry for the ‘propagation of virtue and the prevention of vice,’” they reported.
Young’s lead counsel, Vel Freedman (of Freedman Normand Friedland LLP) made a similar point to Judge Henry’s cartel analogy. He posed a scenario where terrorists took over a building and told everyone they couldn’t leave; pointing out that the terrorists weren’t the actual government of the building, thus their edicts did not carry the weight of law (Click "expand"):
Before I get into the legal reasons why that fails, Judge, as common sense tells us that makes no sense, right? If a group of terrorists take over a building in downtown Panama City and take hostages in that building and then forbid the hostages from leaving and put a sign on the door that says “you're forbidden from leaving,” someone who goes into that building to save the hostages is not acting illegally. All right? And, and that's just, that's just common sense.
And that's what's going on. The Taliban are terrorists that have taken over a country, yes, but how is it any different than a building? And that brings us to the legal issues. The Taliban are not the government of Afghanistan as a matter of law. This isn't disputable.
And on the issue of Young’s alleged criminality, Freedman noted that CNN’s corporate representative Adam Solomon Levine and journalist Alex Marquardt admitted in the deposition testimony that they didn’t find any evidence of Young committing a crime:
I'm gonna come back to this refrain, this pattern I'd say we were going to be talking about, Judge, where the plaintiffs have put forward competent evidence to say they did nothing illegal. The burden now shifts to Mr. Young – to CNN rather to put forward evidence of illegality. If they fail to put forward reasonable evidence of Mr. Young committing an illegal act, then the court has to enter summary judgment that Mr. Young did nothing illegal.
“So, starting with the excerpts of testimony from Mr. Young and General Young, Judge, none of the cited evidence by CNN says that Mr. Young engaged in illegal conduct. CNN has literally made these arguments based on a deep mischaracterization of the record,” he said.
The relevant portions of the transcript are below. Click "expand" to read:
CNN Defamation Suit Hearing
August 30, 2024
11:59:09 a.m. Eastern(…)
JUDGE SCOTT HENRY: The second one you – um – you were requesting that Young – a determination Young was not operating on a black market.
VEL FREEDMAN (lead counsel for Zachary Young, plaintiff): That's right, Judge, and it's, it's kind of two parts is that Mr. Young did nothing illegal and that Mr. Young did nothing on a black market, but yes.
HENRY: Okay. Go ahead.
FREEDMAN: OK, thank you, Judge. So, your Honor, again, so as we start in this pattern, I told you we'd be revisiting, Mr. Young put forward evidence that he did nothing illegal. And that evidence comes in in in in numerous forms, though some we withdrew.
So I just want to flag again that, you know, we withdrew some of those and I won't be mentioning them. I know the court won't be relying on them.
So, using only what was cited, Mr. Young testified that he was not a criminal in deposition, you know, quote, “probably just the facts are, you know, I'm not a criminal,” quote, “I'm not involved in anything illegal.” So, Mr. Young put on testimony saying ‘I did nothing illegal.’ The business at issue, Judge, had all the hallmarks of legality, you're talking about a US company that's issuing invoices, that's paying its taxes that provided service to Fortune 100 companies with robust compliance departments. You have the White House being publicly involved in evacuations.
And in fact, Judge, CNN admitted in deposition that Mr. Young didn't do anything illegal, quote, Mr. Levine, CNN's corporate representative, “does CNN believe that Young was involved in illegal activity?” Answer, “No.” Or Mr. Marquardt, question, “did your reporting ever discover anything illegal that was going on with regard to the evacuation process.” Answer, “No, it didn't.” Question, “do you think Mr. Young was committing a crime? Let me ask it that way.” Answer, “As far as I know, he was—” he repeated himself here, but – “he was simply asking for large amounts of money to get Afghans out of the country.” So again, ‘do you think he was committing a crime?’ ‘No, as far as I know, he was simply asking for large amounts of money.’
So, you've got, um, again, I'm gonna come back to this refrain, this pattern I'd say we were going to be talking about, Judge, where the plaintiffs has put forward competent evidence to say they did nothing illegal. The burden now shifts to Mr. Young – to CNN rather to put forward evidence of illegality. If they fail to put forward reasonable evidence of Mr. Young committing an illegal act, then the court has to enter summary judgment that Mr. Young did nothing illegal.
And Judge CNN tries to do two things to beat to counter evidence – now, the plaintiffs – the plaintiff's evidence. The first is they cite various experts of testimony from Mr. Young and General Young, no relation, by the way, which is our expert on evacuations in Afghanistan and the area out there, to try and prove that Mr. Young engaged in illegal activity.
The second thing they do is CNN tries to rely on Sharia law to say Mr. Young's actions involve – it violated the Sharia law instituted by the Taliban. So, starting with the excerpts of testimony from Mr. Young and General Young, Judge, none of the cited evidence by CNN says that Mr. Young engaged in illegal conduct. CNN has literally made these arguments based on a deep mischaracterization of the record.
(…)
12:03:26 p.m.
FREEDMAN: The second issue, so that brings us to the Sharia law issue. And, and essentially what CNN is arguing is that the Taliban instituted a ban from women traveling alone or with males that were not their relatives. The evacuation process violated that Taliban edict and therefore Mr. Young did do something that was illegal.
Before I get into the legal reasons why that fails, Judge, as common sense tells us that makes no sense, right? If a group of terrorists take over a building in downtown Panama City and take hostages in that building and then forbid the hostages from leaving and put a sign on the door that says “you're forbidden from leaving,” someone who goes into that building to save the hostages is not acting illegally. All right? And, and that's just, that's just common sense.
And that's what's going on. The Taliban are terrorists that have taken over a country, yes, but how is it any different than a building? And that brings us to the legal issues. The Taliban are not the government of Afghanistan as a matter of law. This isn't disputable.
(…)
12:19:03 p.m. Eastern
DEANNA SHULLMAN (lead counsel for CNN, defendant): Moreover, your Honor, the market was illegal. CNN obviously does not condone the Taliban. It's ridiculous, but that was who was in charge at the time. And it's no dispute, your Honor, that they did not permit the evacuations. That's why it had to be done surreptitiously because if you got caught by the Taliban, you would get killed because they didn't allow it.
(…)
12:20:39 p.m. Eastern
SHULLMAN: They further admitted that the entire point, the entire point of the private evacuation market was to get people out without permission of the Taliban and without getting caught by the Taliban.
(…)
12:21:46 p.m. Eastern
SHULLMAN: So, there is an illegal black market in in evacuations. Young has put in no testimony that he had permission from the Taliban to move people. It's the whole point why he says his operatives waited for guards at the gate of Pakistan who would look the other way and let their evacuees in despite not having permission to leave the country. He testified that he sent the operatives across the border unaccompanied, even though they were not allowed by the Taliban to travel that way because crossing them with men unrelated to them would make it far worse for them.
(…)
12:27:18 p.m. Eastern
SHULLMAN: It's a not like a U.S. code section here. It's a terrorist regime. The terrorists didn't allow it. So, if you're gonna look at this through the lens of “illegality,” then you have to look at what was legal and not legal at the time. And it was not legal to allow – to take these women across the border, maybe without passports. Young doesn't know cause he wasn't there. Maybe with fake passports, he doesn't know, he wasn't there. All he wants to tell you is, ‘trust me, it was legal.’ He doesn't know.
He's no competent evidence that what the operatives were on the ground were doing was legal and we have no means to test – to test at all his testimony that it was because he deleted everything! He can't meet his burden of falsity here, Your Honor. He just can't. It's not enough sufficient competent evidence. And again, if the reports even say that, because they don't.
HENRY: And where I, I mean, if I, you know, if I'm saying somebody did something illegal in the state of Florida. I point to some chapter and some section, sub subsection of a statute that says this in Florida makes it illegal. Where does it say in Taliban law adopted in Afghanistan in 2021, the fall of 2021, that this is illegal to do?
SHULLMAN: So, plaintiffs own expert –
HENRY: If I was to apply Taliban law as being the standard of whether he was doing something illegal.
SHULLMAN: This is where his own expert helps you with this, Your Honor, because the expert testifies, you can't think of it like that. This is not a place where there is a code of federal regulations in place.
Laws as American, you're putting an American spin on laws that are not written, you know, put in organized leather-bound book –
HENRY: So, in Mexico, if a cartel is restricting people from going somewhere and you run your car out of town against the cartels “law,” are you saying that somebody did something illegal by leaving that town because the cartel said no you can't go? I mean, that that seems to be the equivalent of what you're suggesting here.
SHULLMAN: Your Honor, what I'm – what I'm – Again, there's a disconnect between whether it's a good thing to get out of town because of the cartels and whether the cartels would have allowed it, and that's the issue here.
Yes, it's a good thing to get people out of the country, but the truth is the Taliban didn't allow it, so you had to sneak around and to get it done. And sneaking around to get it done was required because the people in charge wouldn't let you do it, not because they had a leather-bound book that said you couldn't do it, but because that's what they said. Women couldn't leave the country freely. The expert admitted it. Young admitted it. The whole point of the market is because you can't do this.
You know, you can't just say, I'm gonna leave now and, and get out of town. You, you need the permission of the people in charge, thugs that they were, and they didn't have it. So, they resorted to a clandestine market. They resorted to, you know, channels that were private and outside unregulated.
That's what I'm saying. The use of the term by CNN is clandestine, unregulated, outside of the view of the Taliban. There isn't anything in the report that says what he did was illegal, but if that's how the court is going to interpret it, then what he did violated the Taliban's rules. By his own admissions.
(…)
