Libel Without Borders

When it first appeared in 2006, "Alms for Jihad," an academic book on Islamic charitable networks by two American scholars, drew scant attention. It sold a modest 1,500 copies and received few reviews. But in recent weeks the book has become an international cause célèbre, after Cambridge University Press agreed to pulp all unsold copies in a defamation settlement.

Last spring, Sheikh Khalid bin Mahfouz, a powerful Saudi businessman and banker to the Saudi royal family who is based in Jeddah, sued the publisher over the book's depiction of his family as financiers of terrorism. In English libel law, the burden of proof falls on the defendant, and bin Mahfouz had won judgments in several other cases. Rather than challenging the accusations, the press agreed in August to destroy the remaining 2,300 warehoused copies of the book. It also paid bin Mahfouz an undisclosed sum for damages and legal fees, issued a written apology and, to the anger of librarians, asked libraries that refused to insert an errata slip to remove the book from their shelves.

The case is fanning widespread concern that English libel law is stifling writers far beyond the borders of the United Kingdom. Today, any book bought online in England, even one published exclusively in another country, can ostensibly be subject to English libel law. As a result, publishers and booksellers are increasingly concerned about "libel tourism": foreigners suing other foreigners in England or elsewhere, and using those judgments to intimidate authors in other countries, including the United States. Last year, the Association of American Publishers, Amazon.com, the American Society of Newspaper Editors and others filed an amicus brief in New York, arguing that such litigation "constitutes a clear threat to the ability of the U.S. press to vigorously investigate and publish news and information about the most crucial issues before the U.S. public." In early September, Representative Frank R. Wolf, Republican of Virginia, invited one of the co-authors of "Alms for Jihad" to discuss the book in a private meeting with intelligence workers and staffers from the Department of Homeland Security. Cambridge's settlement is "basically a book-burning," Wolf said in a telephone interview. "I think it will have a chilling effect."

Celebrities and other public figures have long used English libel law to their advantage. In 2005, an English court ruled in favor of Roman Polanski in a suit against Vanity Fair. He had accused the magazine of defaming him in an article that quoted Lewis Lapham, the former editor of Harper's, as saying he had seen Polanski make a pass at a model while uttering the name of his wife, Sharon Tate, one week after her murder in 1969. In 2003, the Russian oligarch Boris Berezovsky won a libel suit against Forbes magazine, which he said had defamed him by linking him to organized crime. Since Sept. 11, more cases have focused on matters of international security. In 2004, Random House U.K. dropped its plans to publish Craig Unger's best-selling "House of Bush, House of Saud" for fear of libel lawsuits. (It was eventually published by Gibson Square, a small house with few assets to sue over, and became a best seller in Britain as well.)

When it comes to libel tourism, bin Mahfouz is something of a frequent flier; yet since he and his family have business interests, property and friends in England, his lawyer says they have "significant reputations" to protect there. In another closely watched case, he won damages against a New York author, Rachel Ehrenfeld, whose 2003 book "Funding Evil: How Terrorism Is Financed — and How to Stop It" linked bin Mahfouz with Al Qaeda. Although the book wasn't published in Britain, it could be bought there online. In 2004, bin Mahfouz won damages and an apology from Pluto Press and the author Michael Griffin, whose "Reaping the Whirlwind" also said bin Mahfouz had financed Al Qaeda. In addition, bin Mahfouz has won damages from the newspaper The Mail on Sunday and received written apologies from several other authors.

In all those cases, bin Mahfouz said he and his family had never knowingly underwritten terrorism. In each case, defendants have paid settlements before trial. Under English law, bin Mahfouz has never had to appear in open court to disprove the accusations against him. "This guy has run roughshod over publishers and authors," said Judy Platt, director of the Association of American Publishers' Freedom to Read program. "Every time someone says something he doesn't like, he takes them to court."

"Alms for Jihad" was written by two experts on Sudan: J. Millard Burr, a retired State Department officer, and Robert O. Collins, an emeritus history professor at the University of California, Santa Barbara. It follows Saudi money through Islamic charitable organizations in Sudan, Southeast Asia, the Balkans and Chechnya, showing how some of it ended up financing terrorism. Though a tangential figure in the 350-page book, bin Mahfouz objected to 11 passages. He "amounts to nothing more ... than a grand footnote" in a larger story, Collins said.

Another point of contention is bin Mahfouz's role in the Bank of Credit and Commerce International, which the Manhattan district attorney charged in 1992 with bank fraud, bribery, the illegal shipping of arms and other offenses. In the errata slip sent to libraries, Cambridge says that contrary to what was reported in "Alms for Jihad," bin Mahfouz himself "was never alleged to have been involved in embezzlement, money laundering or the various other criminal offenses alleged against the B.C.C.I.," and that he "paid no personal fine." According to the Manhattan district attorney's office, in 1993 bin Mahfouz paid a $225 million settlement for various charges — primarily related to the withdrawal of his investment — as part of the larger B.C.C.I. settlement, though he admitted no wrongdoing.

The Cambridge settlement also involves a document called the "Golden Chain," a list of 20 wealthy Saudi donors, including the bin Mahfouz family, that was found in a 2002 raid on the Sarajevo offices of an Islamic charity. In "Alms for Jihad," the authors say the document was a list of Qaeda financiers, an assertion also made in several other news accounts. Bin Mahfouz's lawyers counter that he himself was never included on the list; that even according to United States prosecutors, the list was of donors to the mujahedeen, not to Al Qaeda; and that the document was deemed inadmissible as evidence in cases in England and America, where judges in both places ruled it was not proof of support for Al Qaeda.
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Note: This essay will appear in the print edition of the Book Review dated October 7, 2007.

In its apology, Cambridge said it accepted "that at no time has any member" of the bin Mahfouz family "contributed to any terrorist organization, nor has the family ever had reason to believe that funds it has given over the years to a wide variety of charities ... have been used other than for the charitable purposes intended."

Kevin Taylor, of Cambridge's legal team, said a challenge to bin Mahfouz's case would have been "absurd, suicidal and not in anyone's interest," since the courts had found some of the same statements defamatory before. Taylor said the press would now be more vigilant in its fact-checking and would consider "toning down statements" so "such actions won't stick, even under English libel law." "Our basic academic principles have not been undermined by this," he said. "It's more about process."

Meanwhile, Rachel Ehrenfeld has refused to acknowledge the English ruling that awarded bin Mahfouz $225,900 in damages and ordered her to apologize and destroy all copies of "Funding Evil." An independent researcher who directs the American Center for Democracy, a group that "monitors and exposes the enemies of freedom," Ehrenfeld said she didn't have the resources to contest the case. Instead, she has asked a federal court in Manhattan to rule that the English libel judgment is unenforceable in New York, on the grounds that it is effectively silencing her in America. In June, the United States Court of Appeals for the Second Circuit declared her case "ripe" for hearing. "The issue may implicate the First Amendment rights of many New Yorkers, and thus concerns important public policy of the state," the court wrote.

In a watershed case last fall, England's highest court ruled that The Wall Street Journal's European edition was working "in the public interest" when it reported in 2002 that Saudi Arabia, at the request of the United States, had been monitoring the bank accounts of several prominent businesses to see if they were being used to finance terrorist groups. Previously, even to report that someone was under government investigation was tantamount to defamation. In the ruling, one judge wrote that England needed "more such serious journalism, ... and our defamation law should encourage rather than discourage it."

For their part, Burr and Collins recently reobtained the copyright to "Alms for Jihad" from Cambridge. They're now awaiting word from several American publishers who have expressed interest. If the book is published here, Collins said he would correct two errors: that the bin Mahfouz family intermarried with the bin Laden family, and that bin Mahfouz was chief executive of B.C.C.I., when in fact he was a director. Beyond that, he said, any changes would be up to the publisher. "There are three options," Collins said. To leave the book "as it is"; to "sanitize it"; or to "just delete Mahfouz the 11 times he appears."

Rachel Donadio is a writer and editor at the Book Review.
First published in New York Times