Chilling Free Speech

By Ilan Weinglass in the Washington Times 10/22/2007

The U.S. media has started to notice Saudi billionaire Khalid bin Mahfouz's use of British libel laws to silence allegations that he funded al Qaeda. Even the venerable New York Times has featured an essay on the subject, plus an Op-Ed urging Congress to prevent U.S. courts from enforcing foreign libel judgments. While this would be a worthwhile achievement, most commentators have missed the point that we may have already lost the battle. More than 30 publications and authors have already given in to the billionaire. Since September 11, Mr. Mahfouz has exploited the British legal system, where libel laws favor the plaintiff, to systematically sue anyone alleging that he financed terrorism. He has also used the threat of such suits to intimidate his critics.

A number of leading American publications including The Washington Post, Wall Street Journal, Los Angeles Times and USA Today have publicly retracted allegations made about Mr. Mahfouzon their pages. Most recently, Mr. Mahfouz threatened to sue Cambridge University Press (CUP) for publishing "Alms for Jihad." Overlooking its responsibility and academic integrity, CUP decided to avoid huge legal expenses. It apologized and pulped the book. While criticizing CUP for its capitulation, the American media failed to notice that the authors of the book were not even threatened. Why not? Because of what civil-rights lawyer Harvey Silverglate calls "one of the most important First Amendment cases in the past 25 years," now pending before the New York Court of Appeals.

This case involves Rachel Ehrenfeld, author of "Funding Evil: How Terrorism is Financed and How to Stop It." Miss Ehrenfeld was also subject to a lawsuit by Mr. Mahfouz. But unlike the others, she refuses to acknowledge the jurisdiction of a British court over a book published in New York, and she asked a U.S. court to declare the British judgment unenforceable in the United States. After two years, a U.S. appeals court ruled that the New York Court of Appeals must hear her case. This is already a small victory for free speech, as Mr. Mahfouz will have to make his case in an American court.

This small victory pales next to some larger defeats, however. Mr. Mahfouz's Web site shows dozens of otherwise serious, careful scholars making abject apologies to the Saudi. A typical example, from a leading scholar of Al Qaeda: "I withdraw any allegations contained in the Book that you were a financial mainstay of Al Qaeda... I am happy to accept that you abhor terrorism and that you had no part or knowledge of any alleged transfer of funds to support terrorism."

Looking closely through publicly available scholarship on Mr. Mahfouz, it is doubtful one will find any terror-finance allegations that have not been explicitly retracted in such a manner, with the exception of those made by Miss Ehrenfeld. While all claims must be subject to rigorous investigation, this is disturbing, since the Treasury Department designated Yassin al-Qadi, the director of Mr. Mahfouz's "charitable" foundation, as a terrorist. Moreover, Treasury determined that a Mahfouz-owned bank sent $3 million to the same foundation,plus other "charities that serve as a front for bin Laden." We have lost valuable time in the battle against terror financiers regardless of the outcome of the Ehrenfeld case. As scholar Matthew Levitt writes, "such suits threaten to have a chilling effect on scholars conducting serious, careful, and peer-reviewed research into critical and sometimes contentious policy debates." While Mr. Levitt, who himself faced a libel suit in the United States that was rightly dismissed under U.S. libel laws, is correct in pointing out the "chilling effect" of such suits, the cold fact is that much damage has already been done.

Ultimately, we will never know how much damage The Washington Post or Wall Street Journal could have prevented if they stood up for their First Amendment rights. Whatever the outcome of Miss Ehrenfeld's case, it is a black mark on these publications that they chose the easy way out, while a lone brave woman is the only thing preventing a total blackout on research into a possible funding source of al Qaeda.

Ilan Weinglass is a New York-based consultant on terror
financing issues and editor of the Terror Finance Blog.
He was a research assistant for Funding Evil.