if it gets past some technical jurisdictional issues which are awaiting
Briefly, Rachel Ehrenfeld is the author of Funding Evil: How Terrorism
is Financed -- and How to Stop It, which was published by Bonus Books in
2003 in the United States. (some copies were also sold over the internet
to our cousins in Britain.)
Khalid Salim Bin Mahfouz is a billionaire Saudi Arabian citizen who was
formerly the president and chief executive officer of The National
Commercial Bank of Saudi Arabia.
In Funding Evil, Ehrenfeld alleged that Mahfouz, among others,
financially supported terrorism. Mahfouz sued Ehrenfeld in England for
libel on the basis of these allegations.
Mahfouz and many other public figures utilize the British legal system
to obtain libel judgments because its laws require the author or
publisher to prove the truth of the assertion.
Mahfouz could not obtain a libel judgment against Ehrenfeld in America's
legal system because it requires that a public figure prove the falsity
of the assertion and that the falsity was made with reckless disregard
for the truth - a very high standard and 180 degrees opposite from the
British legal system.
The fact that our government has stated that Mahfouz funded terrorists,
the basis for Ehrenfeld's statement in Funding Evil, means Mahfouz could
not directly prevail in America's legal system.
So, Mahfouz is trying to prevail indirectly by obtaining a judgment in
Britain's legal system then have the British judgment recognized under
American laws. Ehrenfeld rightly says that violates her American first
amendment constitutional speech rights.
In effect Ehrenfeld is arguing that if Mahfouz cannot obtain a libel
judgment through the front door he can't obtain it through the backdoor.
If Ehrenfeld get's past the technical jurisdictional issues she stands a
very good chance of prevailing and thereby preventing the circumvention
of America's loadstar - The First Amendment of our Constitution.2
Web: American Center for Democracy
1. The technical jurisdictional issue relates to whether Mahfouz's
efforts to have his British libel judgment recognized in America, plus a
handful of correspondence contacts, is sufficient to confer personal
jurisdiction over Mahfouz by American courts?
As an aside, it would be nice if some or all of Mahfouz's
wire-transfers, which likely form the basis of our government's
allegations that Mahfouz funded terrorists, where available to Ehrenfeld.
If personal jurisdiction is established Ehrenfeld's first discovery
request will likely be for all of Mahfouz's money wire transfers.
Remember all those transactions by Society for Worldwide Interbank
Financial Telecommunication, (SWIFT) which our treasury department
2. For me this is a not even a close question. While comity between
nations should be encouraged, comity is based on the principle of
similar or same substantive legal systems. It's also an economy of
judicial resources question - if a similar or same legal system from
another nation has already taken the time and spent the judicial
resources to decide the issues it makes no sense for an American court
to do it again.
However, where the differences between the legal systems are so great,
as in the case of British libel law (also state secrets law), principles
of comity, judicial respect and judicial economy must give way to
ensuring our system of justice is not compromised.
Britain's libel laws are so different from America's that to recognize
Mahfouz's British libel judgment in America would compromise Ehrenfeld's
first amendment constitutional speech rights and our Constitution.
Let's hope the appellate court can get past the technical jurisdictional
issues because this is a very interesting case with far reaching