American Judge Decides Against the First Amendment and Free Speech for a Case File in the UK
We Live in a Screwed Up World
The case against Rachel Ehrenfeld by a Saudi Sheik will decide whether or not American writers will continue to enjoy their First Amendment rights.
Islamism has used a variety of weapons to quash criticism of Islam. The most visible are the cartoon riots and marches that continue yet today, the threats of intimidation, such as that against Hirsi Ali, and the violence against individuals, groups and business concerns, such as the murder of Theo van Gogh.
Unfortunately the threats of violence and intimidation are working.
A less visible but far-more-reach and possibly more effective weapon is the courts and legal system. Muslims have been very successful in using the British court system to silence authors as the British system's string libel and slander laws have effectively chilled and silenced criticism. Many become what is known as "libel tourists", bringing lawsuits against that make inquiries into their private and public affairs: Great Britain is the libel capital of the world.
Americans believe they were safe from such manipulation of the courts. However a recent ruling by Judge Richard Casey of The Southern District Court in Manhattan against Dr. Rachel Ehrenfeld, director of the American Center for Democracy, will have a chilling effect on the fight against Saudis and other financial terrorism because it has cracked open America's precious First Amendment Right of freedom of speech. (Maybe someone should alert Bill O'Reilly!)
Ehrenfeld is a prime target for Islamists because she has written extensively about the Saudi fifth column in the United States that operates, through the use of oil wealth, on American college campuses, circulates materials in secondary schools reflecting Wahabbist ideology, and has provided lucrative incentives to officials in our state department and politicians in Washington.
Ehrenfeldt's 2003 book, Funding Evil: How Terrorism is Financed and How to Stop It, "among other things, reveals connections between Saudi billionaire Sheik Khalid Salim a bin Mahfouz and his sons, and al Qaeda funding. Despite the fact that he lives in Saudi Arabia and Ehrenfeld's book was published in the United States and not even on sale in Great Britain, the Sheik decided to take advantage of the loose British libel laws and became a "libel tourist" by suing Ehrenfeld in the UK for defamation and libel. In Britain, libel laws place the burden on the defendant. Law courts require a reporter to prove the truth of his or her written allegations. All sources must be revealed including U.S. government officials, both public and anonymous, some of whom would be impossible to subpoena to a court in the UK.
Why didn't he sue in the United States?
Had Mahfouz filed in the USA, under U.S. libel laws he would have had to prove that the book misstated the facts and was written in malice, a standard he could not have met. Moreover, he would have been subject to a discovery process that would reveal more than the Saudi billionaire wanted the world to know, especially since he'd already been under the microscope for bank fraud and money laundering in a failed Muslim bank he financed, and for which he was forced to make restitution. The Saudi billionaire is ranked the 210th richest man in the world, and his sons are already named as defendant in the US by several of the families whose relatives died on 9/11 because of his links to funding the al Qaeda terrorists who struck that fateful day.
The pretext for filing in the U.K. was that 26 of Ehrenfeld's books made it into the hands of British citizens who ordered via Amazon, an international company. The judgment could set back international commerce and create a list of books banned in Britain regardless of how they come into the hands of readers.
A Justice Eady in the UK decided a default judgment against Ehrenfeld, and ordered her to pay the Saudi more than $200,000 in damages plus court costs, and barred her book in the U.K. The judgment rendered by the British court can only be enforced in the United States by legal action.
More than money is at stake:
When Ehrenfeld filed in the Southern district court in Manhattan to block the collection process, she knew that more than money was at stake. As her attorney stated to the Court: "The freedom to ferret out and publish facts without fear of expensive lawsuits and huge judgments in foreign countries whose defamation laws negate a commitment to freedom of expression and public discourse are pregnant and antithetical and contrary to our fundamental policy."
Ehrenfeld and others in the U.S. are counting on the 1964 landmark case New York Times v. Sullivan in which courts decided for the first time "the extent to which the constitutional protections of free speech and press limit a State's power to award damages in a libel action brought by a public official.."
Daniel Korenstein, Ehrenfeld's attorney, stated in December 2004: "Sullivan esablished the ground rules of libel actions and they have been in place since 1964."
Those standards, very friendly to reporters and writers, have put the onus of proof on libel plaintiffs. In this case, 23 copies of a book published in America were picked up in a foreign jurisdiction, which was used to seek judgment against an American. “The question is,” Kornstein concludes, “do the Times Sullivan rules mean anything in a world so dependent on the Internet, instantaneous communication and international process that did not exist in 1964.” Do they carry the same weight they were meant to carry 40 years ago?
The effects of this loss will be far reaching. In an amici filing with the U.S. District Court in New York in 2004 were Amazon.com and the American Society of Newspaper Editors. According to the friends of the plaintiff,
When a wealthy businessman succeeds in using a carefully chosen foreign forum to attack the credibility of an American investigative author and her work, it harms that author directly and immediately. It also sends an unmistakable message to other writers and publishers that scrutinizing the activities of that businessman, and others of similar resources, is a perilous legal and financial course. American authors must have a means to affirmatively counter such attacks, relieving themselves of the stigma and the financial threat posed by such foreign judgments obtained in jurisdictions lacking free speech protections.
This need is particularly urgent today. Rarely in the history of the United States have the principles underlying our First Amendment - the need for vigorous, open debate, particularly of matters of such vital public concern as the book at issue here - been more important. The energy, drive and credibility of our investigative journalists and book authors are critical to understanding and coping with international terrorism and other threats to our society. The dangers of foreign litigation against publishers, authors and journalists become more acute daily, in direct proportion to our society's increasing reliance on the Internet for dissemination of information and publications.
Ironically bin Mahfouz claimed that the case is inadmissible because he does not live or work in the U.S. But until August 2004, bin Mahfouz owned two New York City condominiums worth some $3.6 million and, as of July 2005, he reportedly continued to conduct stateside and New York businesses.
Bin Mahfouz is not stranger to U.S. courts of criminal law. In 1992, for example, he paid $225 million (including a $37 million fine) to escape criminal charges in New York involving his role as a chief operating officers of the shuttered Bank of Credit and Commerce International (BCCI) which was implicated by the CIA for laundering drug money and supporting international terrorists. In settling, bin Mahfouz admitted no wrongdoing.
At that time, in October 2001, according to former national security advisor Richard A. Clarke, the U.S. Treasury Department listed Yasin al Aqdi as a designated terrorist for his financial support of al Qaeda. Qadi headed Muwafaz, a Saudi "relief organization" that Clarke said "reportedly transferred at least $3 million, on behalf of Khalid bin Mahfouz, to Usama bin Laden (sic) and assisted al Qida (sic) fighters in Bosnia." So testified Clarke before the Senate banking committee on September 22, 2003.
Although bin Mahfouz did not sue the State of New York, the U.S. Senate Banking Committee, or Clarke, he preferred to stymie the flow of information concerning his apparent misdeeds by attacking the messengers, some of whom have had to publicly apologize or settle cases, or, in the case of book publishers, back off publication all together.
No one should be surprised as this is the typical behavior of Islamists the world over: attack the messenger. Where intimidation by force is not favorable, such as in the West, Islamists with deep pockets funded by petro-dollars are suing and winning. Using his considerable wealth to fund lawsuits, bin Mahfouz has won against those with fewer to assets to spend in court battles, and in some cases he has "won by default."
According to a report in Libel Wars by Alyssa Lappen, USA Today, for one, printed a lengthy retraction concerning a November 2004 article by Marc Umile that had implicated bin Mahfouz. (The retraction remains in Google Cache.)
As a result of bin Mahfouz' intimidation, Gerald Posner, in Secrets of the Kingdom, makes no references to bin Mahfouz or Muwafaq. Loretta Napoleoni removed all references to bin Mafouz from her U.S. paperback book, Terror Incorporated.
Overseas action, in Britain, the High Court ruled against the European edition of the Wall Street Journal in a case concerning a 2002 article that stated the Saudi authorities were monitoring 150 bank accounts for suspected ties to terrorism. The Journal mentioned that two of the accounts were those of Mohammed Jameel of Jedda, who sued and won the case, according to The New York Times.
Similarly, bin Mahfouz sued Pluto Press in the U.K. over the suggestion in Michael Griffin's 2003 Reaping the Whirlwind that he was related by marriage to Osama bin Laden and a supporter of terrorism. Bin Mahfouz "accepted" a substantial settlement and an apology, as he did earlier for a report in the Mail on Sunday. In another case, bin Mahfouz' litigiousness was reportedly behind the halt in British publication by Secker & Warburg in early 2004 of Craig Unger's House of Bush; House of Saud
In May 2004, the Times reported, bin Mahfouz had been involved in at least four libel cases in the U.K. But apparently none of bin Mahfouz' British cases have been tried on their merits; rather, the wealthy sheik has won by default—hardly proof that reporters' allegations against him were actually false.
Even in Britain, although he has settled several libel cases, he has (strictly speaking) not won, either. That is to say, he has not won judgments on the merits of cases presented. Against Ehrenfeld, for example, the bin Mahfouz website claimed in 2005 to have won a judgment against the author, although only 23 books were ever imported to the U.K. And the U.K. court awarded him a “downpayment” award of 60,000 pounds in damages and costs, with the final amount yet to be set. (Until today, Bin Mahfouz could not possibly collect in the U.S.) Yet bin Mahfouz' only defense in the case was that Ehrenfeld was served with the lawsuit did not show up in London for the trial. No trial was actually held. Bin Mahfouz won “by default”--and that because Britain's libel laws place onerous restrictions on the freedom of the press.
These are not people with clean hands, yet their considerable wealth has allowed them muscle journalists and authors into silence and into retractions.
Although Judge Casey ignored Ehrenfeld's please for her First Amendment rights and decided that he had no jurisdiction over the case, Ehrenfeld has no dropped the matter. She is filing an appeal and faces the difficult challenge of raising enough money to support a case that will benefit us all as the outcome will determine whether or not American writers will be able to continue to expose America's enemies. We all have a lot to lose.
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