It has become popular for those with competing political agendas to allege threats to free speech, whether real or imagined. Yet, there is a very real threat to free speech that has received little attention in the public sphere. It's called libel tourism and it has become a major component in the ideological arm of the war on terrorism.
At question is the publication of books and other writings that seek to shed light on the financing of Islamic terrorism. Increasingly, American authors who dare enter this territory are finding themselves at risk of being sued for libel in the much more plaintiff-friendly British court system in what amounts to an attempt to censor their work on an international level.
The latest case of libel tourism to rear its ugly head involves the book "Alms for Jihad", which was published by Cambridge University Press in 2006. Co-written by former State Department analyst and USAID relief coordinator for Sudan J. Millard Burr and UC Santa Barbara professor emeritus of history Robert O. Collins, "Alms for Jihad" delves into the tangled web of international terrorist financing and, chiefly, the misuse of Muslim charities for such purposes.
Billionaire strikes back
Among those the book fingers for involvement is Saudi billionaire Khalid bin Mahfouz, the former chairman of Saudi Arabia's largest bank, National Commercial Bank. Bin Mahfouz has come under similar scrutiny on previous occasions, including being named a defendant in a lawsuit filed by family members of victims of the Sept. 11 terrorist attacks. He even has a section of his Web site devoted to trying to refute such charges.
With this in mind, Cambridge University Press lawyers looked over the manuscript for "Alms for Jihad" carefully before giving it the go-ahead. According to Collins, the passages involving bin Mahfouz are, in fact, quite "trivial" compared to the wealth of information contained in the book on how such funds are used to finance conflicts around the globe.
Yet, it is bin Mahfouz's inclusion in "Alms for Jihad" that has proven to be the most problematic, for he soon threatened Cambridge University Press with a libel lawsuit. Before the suit could commence, Cambridge University Press capitulated and announced in July that not only was it taking the unprecedented step of pulping all unsold copies of "Alms for Jihad," but it was asking libraries all over the world to remove the book from their shelves. Cambridge University Press issued a formal apology to bin Mahfouz and posted a public apology at its Web site. It also agreed to pay his legal costs and unspecified damages, which, according to bin Mahfouz, are to be donated to UNICEF.
Authors Burr and Collins, however, did not take part in the apology, nor were they a party to the settlement, and they continue to stand by their scholarship. As Collins put it, "I'm not going to recant on something just from the threat of a billionaire Saudi sheik ... I think I'm a damn good historian." The authors were aware that Cambridge University Press' decision was based not so much on a lack of confidence in the book as on a fear of incurring costly legal expenses and getting involved in a lengthy trial. The British court system is known as a welcoming environment for "libel tourists" such as bin Mahfouz. The Weekly Standard elaborates:
Bin Mahfouz has a habit of using the English tort regime to squelch any unwanted discussion of his record. In America, the burden of proof in a libel suit lies with the plaintiff. In Britain, it lies with the defendant, which can make it terribly difficult and expensive to ward off a defamation charge, even if the balance of evidence supports the defendant.
Bin Mahfouz has indeed availed himself of the British court system on many occasions, having either sued or threatened suit against Americans and others at least 36 times since 2002, according to Rachel Ehrenfeld, author and director of the American Center for Democracy.
Ehrenfeld book also targeted
Ehrenfeld should know, as her own book, "Funding Evil: How Terrorism is Financed -- And How to Stop It", was also targeted by bin Mahfouz through the British court system. Bin Mahfouz sued Ehrenfeld for libel in 2004, soon after her book's publication in the United States, even though only 23 copies ever made it to the United Kingdom.
Ehrenfeld would not, as she put it in the New York Post, "acknowledge a British court's jurisdiction over a book published here" and a trial was never held, but the court ruled in favor of bin Mahfouz by default. It also awarded bin Mahfouz $225,913 in damages and ordered Ehrenfeld to apologize publicly and to destroy all unsold copies of the book.
Instead, Ehrenfeld chose to fight back. No doubt aware of the larger implications at work, she took her case to the United States and, giving bin Mahfouz a taste of his own medicine, sued him in a New York federal court on the basis that "his English default judgment is unenforceable in the United States and repugnant to the First Amendment."
Civil-liberties lawyer Harvey Silverglate has described her case as "one of the most important First Amendment cases in the past 25 years" and sure enough, in June of this year, the Second Circuit Court of Appeals agreed that it deserved a hearing. The court will begin hearing arguments this fall in what could turn out to be a pivotal case involving the clash between First Amendment rights and foreign libel rulings.
Ehrenfeld may indeed have a strong case. She maintains that bin Mahfouz has a long history of involvement in terrorist financing. The bulk of it, she wrote in 2005, revolves around the now-defunct Muwafaq (Blessed Relief) Foundation, which was founded by bin Mahfouz and "identified by the U.S. Treasury Department as providing logistical and financial support to al Qaeda, HAMAS, and the Abu Sayyaf organizations." Ehrenfeld recapped her concerns more recently:
The data in both "Alms for Jihad" and "Funding Evil" is all well-documented by the media and the U.S. Congress, courts, Treasury Department and other official statements. Further corroboration comes from French intelligence officials at the General Directorate of External Security (DGSE), as reported in the French daily, Le Monde. For example, the DGSE reported that, in 1998, it knew bin Mahfouz to be an architect of the banking scheme built to benefit Osama bin Laden, and that both U.S. and British intelligence services knew it, too.
For this reason, and also to create a precedent, Ehrenfeld has been the only defendant so far not to settle with bin Mahfouz. And she refuses to "acknowledge the British Court and its ruling" to this day.
Price of book skyrockets
Ehrenfeld's success thus far countering bin Mahfouz mirrors other indications that libel tourism may be backfiring. The largely Internet-based furor over the attempt to squelch "Alms for Jihad" and what is widely seen as Cambridge University Press' cave-in has caused the book's price to skyrocket. A copy of the book sold on eBay this month for $538. As noted at the blog Hot Air, "By suing publisher Cambridge University Press into submission, Khalid bin Mahfouz has turned an obscure scholarly book on the financial workings of terrorism into a prized, rare book."
In addition, the American Library Association is rising to the occasion. Rather than going along with the Cambridge University Press settlement stipulation that American libraries remove "Alms for Jihad" from their shelves, the American Library Association's Office for Intellectual Freedom issued the following statement earlier this month:
Unless there is an order from a U.S. court, the British settlement is unenforceable in the United States, and libraries are under no legal obligation to return or destroy the book. Libraries are considered to hold title to the individual copy or copies, and it is the library's property to do with as it pleases. Given the intense interest in the book, and the desire of readers to learn about the controversy first hand, we recommend that U.S. libraries keep the book available for their users.
Reportedly, Collins and Burr got the publishing rights to the book back from Cambridge University Press and, according to the Library Journal, have had "several offers from U.S. publishers." It appears the "Alms for Jihad" saga is far from over and free speech may yet win the day.
In another victory for free speech, as well as an instructive example of what such libel suits look like when attempted in the United States, a recent case involving Yale University Press proves useful. It involved a book written by Matthew Levitt, the director of the Stein Program on Terrorism, Intelligence and Policy at the Washington Institute for Near East Policy, titled "Hamas: Politics, Charity, and Terrorism in the Service of Jihad."
In his book, Levitt disputes the notion, popular among Hamas apologists, that the group's terrorist and social service pursuits can be seen as separate. In the process, he implicates the Dallas charity KinderUSA, which allegedly raises funds for Palestinian children, in terrorist financing. The group has personnel connections to the now-closed Holy Land Foundation for Relief and Development, which has been under investigation by federal authorities for funding Hamas. KinderUSA has also come under investigation and as a result, in 2005 suspended operations temporarily.
All of this information is available to the public and the book was thoroughly fact-checked prior to publication. Levitt, who is a witness in the ongoing trial of the Holy Land Foundation, explained further that he "conducted three years of careful research for Hamas, and the book was the subject of academic peer review."
But this didn't stop KinderUSA and the chair of its board, Dr. Laila Al-Marayati, from filing a libel suit in California in April against Levitt, Yale University Press, and the Washington Institute for Near East Policy. They disputed a particular passage from the book, as well as alleging that Yale University Press did not subject it to fact-checking. But, in filing the suit in California, they were faced with a formidable challenge: the state's anti-SLAPP statute. According to Inside Higher Education:
KinderUSA asked the court for an injunction on its request that distribution of the book be halted, and also sought $500,000 in damages. But in July, Yale raised the stakes by filing what is known as an "anti-SLAPP suit" motion, seeking to quash the libel suit and to receive legal fees. SLAPP is an acronym for "strategic lawsuit against public participation," a category of lawsuit viewed as an attempt not to win in court, but to harass a nonprofit group or publication that is raising issues of public concern. The fear of those sued is that groups with more money can tie them up in court in ways that would discourage them from exercising their rights to free speech. Anti-SLAPP statutes, such as the one in California with which Yale responded, are tools created in some states to counter such suits.
Not only did Yale University Press stand by its author, but, in the end, its aggressive response to KinderUSA paid off. It was announced this month that the libel suit has been dropped and no changes to the book or payments to the plaintiffs will be forthcoming. KinderUSA claims that it dropped the suit because of the costs involved, but it's more likely it felt that it could not win. If the case had been brought in the United Kingdom, the outcome could have been far different.
This is why Americans must be vigilant about protecting their free speech rights, even when the threats at hand do not fit into the politically correct playbook. Certainly not all Muslim charities and Saudi businessmen are involved in financing terrorism, but the overwhelming amount of evidence pointing to existing links deserves attention, as do the fervent attempts by interested parties to silence those trying to bring the truth to light. It is crucial that they not succeed.