It is a hard thing to defend the American media. Even when they are right and even when they badly need defending.
In large part, that's because press hypocrisy is so striking. Journalists demand two sets of rules: one for themselves, one for everyone else.
They claim monopoly over the dark corners where their sources and sometimes deceptive intelligence-gathering practices must be shielded from public scrutiny. Everyone else -- even those upholding not the public's dubious "right to know" but its constitutional right to life -- are expected by the selfsame media to operate in the sunshine.
Now, moreover, we find the American media -- those post-sovereign, Global-Village-lovin', We Are the World-hummin' transnational progressives -- insisting that they, uniquely, must be swaddled in the majesty of enlightened American law, protected from such well-known retro-bastions as Europe and Canada which seem not to have heard of American libel law, as laid down in New York Times v. Sullivan. Naturally, the media would have the rest of us cowboy chauvinists hew to the Geneva Conventions even when they don't apply, knock down life-saving security fences because they offend the World Court, and refrain from defending ourselves until Ban Ki Moon gives us the high-sign. We, it seems, are relegated to the glorious International Community, but when it comes to their day-to-day, the Fourth Estate prefers Love American Style, thank you very much.
Intellectually, it is not difficult to grasp that some of this asymmetry is necessary. The mind can separate the role of the press in a functioning democracy from the smugness with which modern journalists perform it. There can be no self-determination without knowledge. Period. Journalists are our eyes and ears, informing us of what we haven't the time or resources to learn for ourselves. They obviously need to be cut some slack.
Though it's right up my alley, I have found it very difficult to get worked into a lather over the latest treachery perfected by our friends the Saudis: The use of the International Community's benighted libel laws to stifle American First Amendment freedoms.
International law may be a gorgeous mosaic when the media want to slap around some nettlesome conservative daring to suggest that maybe the Supreme Court shouldn't be using other countries' precedents to interpret U.S. legal principles. But not when journalists are hoist on their own petard. So now the media suddenly see the wisdom in letting America be America. There's no need to evolve the First Amendment's settled American jurisprudence. This is the media, after all. This isn't some one-horse town seeking justice for a victim viciously murdered. For those rubes, better the Supreme Court study the law of Sierra Leone than apply settled American death penalty precedents. For really important people with really important problems, like journalists facing libel suits, who cares what Great Britain thinks when we've got good old press-friendly standards made right here in the U.S. of A.?
There's a great temptation to go with poetic justice here. But it wouldn't be justice. For journalism's worst, it would serve them right. But it wouldn't serve us. There are plenty of great journalists who play it straight and do extremely important work. We need the best of journalism to be able to do its job: to edify us about salient information that would otherwise remain obscure, if not affirmatively hidden by the powerful -- information we need to make intelligence choices in governing ourselves.
One such choice we must make concerns the nature of our relationship with the Kingdom of Saudi Arabia. The Saudis claim to be our staunch ally in the war against Islamic terrorism. Nevertheless, many terrorists (including fifteen of the nineteen 9/11 hijackers) are Saudis, and, besides oil, the Kingdom's top export is the anti-Western Wahhabist ideology that is radicalizing young Muslims throughout the world, including in the United States, which is now dotted with madrassas backed by Saudi money.
Toward that end, a few intrepid journalists and researchers, prominently including the Rachel Ehrenfeld, have scrutinized the available public record of Khalid Salim bin Mahfouz. Mahfouz is a highly influential Saudi sheikh who used to own the National Commercial Bank of Saudi Arabia. He was up to his neck in the scandal that engulfed the infamous BCCI (Bank of Credit and Commerce International, known to the Justice Department as the "Bank of Crooks and Criminals, Inc.) when, in 1992, he was permitted to settle the indictment against him by paying a $225 million settlement: for him, chump change.
A few years back, Dr. Ehrenfeld, a nationally renowned expert in the field of international terrorism financing, published a book called "Funding Evil: How Terrorism is Financed -- and How to Stop It." (The book, re-released in an expanded version in 2005, contains a forward by former CIA director R. James Woolsey. Full disclosure: both Rachel and Jim are colleagues of mine on the Committee on the Present Danger.) In it, Ehrenfeld argues that bin Mahfouz was responsible for transferring tens of millions of dollars to accounts controlled by terrorists, including funds routed to both the International Islamic Relief Organization, branches of which have been formally designated as terrorist entities by the United States, and the Muwafaq Foundation, which, the Christian Science Monitor notes, the U.S. Treasury Department has described as "an Al-Qaeda front that receives funding from wealthy Saudi businessmen" -- such as Yasin al-Qadi, its one-time leader, who was formally designated as a global terrorist in 2001. Alyssa A. Lappen, a senior fellow at Dr. Ehrenfeld's American Center for Democracy, recounts in a FrontPage Magazine piece that, in 2003, former Clinton administration counterterrorism czar Richard Clarke told the Senate Banking Committee that Muwafaq "reportedly transferred at least $3 million, on behalf of Khalid bin Mahfouz, to [Osama] bin Laden[.]"
Mahfouz and the Saudis do not want Americans reading such things. Mahfouz, however, didn't dare take legal action in the United States. In America, the law of libel is controlled by the aforementioned New York Times v. Sullivan, the Supreme Court's 1964 watershed. As libel experts Samuel Abady and Harvey Silvergate explained last year in the Boston Globe, Sullivan elevates the dissemination of information over concerns about private reputation. In the United States, the burden of proof is on the public figure who claims he has been defamed to show that the journalist was not merely wrong but recklessly and maliciously so. Truth, moreover, is a complete defense.
But Mahfouz is a man of the world and no stranger to its variegated legal systems, which are far less hospitable to journalists. Most prominent is the law of Great Britain, where presumptions run the opposite way. England, which has no First Amendment, puts the burden on the journalist to prove her allegations. Many times, however, journalists (like the American government they take glee in bashing) are not in a position to demonstrate the truth of their assertions to the satisfaction of courtroom proof standards. That doesn't make what they have said any less true -- they simply have witnesses who won't come forward publicly, usually because doing so would endanger them, embarrass them, or compromise their future effectiveness.
The United Kingdom also has a very low threshold for establishing "jurisdiction," the power of a court to entertain a lawsuit. Jurisdiction hinges on, among other things, how affected the realm in question is by the controversy. Here, though Ehrenfeld's book was not published in the U.K., a few copies were purchased there over the Internet -- quite possibly by the Saudis themselves in order to manufacture jurisdiction.
That thin reed was enough, the British courts held, to give them jurisdiction over the case. Not surprisingly, Ehrenfeld did not wish to endure the time and expense of litigating a case in a foreign country where she was unlikely to win given the stacked legal deck. When she did not answer the suit, the British court entered a default judgment in Mahfouz's favor. The tribunal ordered Ehrenfeld to refrain from "publishing, or causing or authorising the further publication" of her assertions about Mahfouz. The legal maneuver has the effect of intimidating Ehrenfeld's publisher and any other prospective sponsors of her work. The effect is to muzzle the Saudi critics.
This offensive lawfare strategy of "libel tourism," as Abady and Silvergate label it, has worked spectacularly well for the Saudis. Lawsuits, of course, are incredibly expensive; Mahfouz, with a bottomless deep pocket, can afford to engage in them until the end of time. Lappen has thus catalogued a growing list of the silenced: publishers who've apologized, publicly retracted allegations, and removed references to Mahfouz in various books and articles after either being sued or threatened with legal action.
The most recent episode involves a book called "Alms for Jihad," written by former relief worker J. Millard Burr and University of California academic Robert O. Collins. Mahfouz and his son threatened the publisher, Cambridge University Press, with a lawsuit. Despite being given mounds of back-up information to support their claim that the Saudis fund charities for the purpose of spreading Wahhabist Islam and radicalizing American and European Muslims, Cambridge has caved. The publisher has agreed to destroy its stock and to press distributors to pull the book from their shelves. (Since this post on August 1 by Stanley Kurtz at National Review Online, the Amazon link to the book has been discontinued.)
Dr. Ehrenfeld decided to fight rather than cave. She filed a suit against Mahfouz in the United States District Court in Manhattan, seeking a declaratory judgment that the sheikh could not prevail on a libel claim under federal and New York state law, and that the British judgment was unenforceable in America.
Mahfouz, being no fool, had not sought to execute on his British judgment in the New York -- where Ehrenfeld lives and works, and where her book was published. His purpose, transparently, was intimidation -- the judgment he won in Britain, about $110,000, was never the point. Had he had tried to collect on it, he would have been deemed to be doing business in New York -- which would subject him to suit in the United States, where jurisdiction is not as easily established as in Britain.
The federal district court upheld Mahfouz's claim that he was insufficiently present in New York to be sued here, notwithstanding that Mahfouz once maintained apartments in New York City; was formerly connected to entities that did business there; currently operates a website that can be accessed there; caused communications to be sent there several times to warn Ehrenfeld about the suit and inform her of its progress; sued a New York resident in a foreign country, requiring her to take several steps in New York directly because of the suit; and, Ehrenfeld contends with great force, implemented a scheme, in New York, to chill her research and writing.
Fortunately, in a crucial development on June 8, the U.S. Court of Appeals for the Second Circuit changed course. Finding the question whether Mahfouz is subject to suit in New York to be a close one, it employed an unusual procedure which permits a federal court to certify questions of state law to the State's highest court: Asking the New York State Court of Appeals to weigh in on whether Mahfouz qualifies for suit under New York's "long-arm" jurisdiction law.
Of equal significance, the federal appeals panel addressed a preliminary issue the lower court had declined to reach, ruling that Ehrenfeld's claim is "ripe." This means the appellate court recognized that she is already suffering concrete damage. Thus, if the state court determines that Mahfouz is personally subject to being sued, he will not be able to get the case thrown out through the sly stratagem of refraining from trying to collect on the judgment he "won" in the U.K.
Why is all this so significant? If Ehrenfeld's suit survives, she would be able to complicate Mahfouz's life immensely. Civil actions provide for liberal discovery by the parties. Mahfouz would be faced with a Hobson's choice: Answer the suit and open his finances up to scrutiny; or default, which would (a) result in a judgment against him undermining his ability to operate in the United States, and (b) demonstrate to the world that, given the opportunity, he would not even try to refute the terror-financing claims made against him.
It is crucially important to our development of a sound national counterterrorism policy that good-faith journalists are not silenced by Saudi intimidation. American courts ought to crack down on Mahfouz's pettifoggery and make him feel the consequences of his litigiousness. Congress ought to consider responsive legislation -- perhaps a federal cause of action against those who use foreign courts as part of a scheme to chill free expression. Moreover, the current administration or the next one, regardless of party, should be diplomatically pressing the Saudis to desist from, and the Brits to bar libel tourism directed at, American journalists.
Whether or not the American media deserve such protections, the American people surely do.
Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.