The New Criterion

Andrew C. McCarthy responds:

Leave it to a lawyer. Rachel Ehrenfeld did not attempt to market her book in England. She repeated allegations already publicly asserted by current and former U.S. officials about Sheikh bin Mahfouz, his Muwafaq charity (described by the Treasury as “an al Qaeda front”), and his chosen assistant (formally designated a global terrorist under U.S. law). She took pains to warn that bin Mahfouz denies having funded terrorists. So what’s Barrister Blackburn’s suggestion? Why, she should hire a lawyer, of course.

That is, she should bankrupt herself litigating in a foreign country against a Saudi banking magnate with limitless resources, who has already demonstrated a willingness to expend hundreds of millions of dollars in his New York fraud litigation, and who has scoured the globe to find an extraordinarily friendly ear in a British judge who, The Washington Times reports, has a reputation for favoring censorship over free speech (“Battling Censorship,” July 20, 2007). Indeed, Alyssa Lappen, a fellow in Ehrenfeld’s Center for Democracy, reports that, upon being informed by bin Mahfouz’s counsel that the former CIA director R. James Woolsey had written the foreword to Ehrenfeld’s book, Judge David Eady exclaimed, “Say no more. I award you a judgment by default, and if you want, an injunction, too.” Who wouldn’t trip over himself at the opportunity to pay lawyers a fortune for the privilege of litigating in, to borrow Mr. Blackburn’s phrase, so “scrupulously fair” a forum?

Ehrenfeld did hire counsel, who advised her not to contest the British suit but use her limited resources where they might do the most good: the United States. Naturally, bin Mahfouz responded by claiming it was outrageous to force him to litigate in a foreign country thousands of miles from home (whether “home” is considered Saudi Arabia or Ireland, where the Sheikh years ago managed to obtain citizenship from a government later rocked by a passports-for-sale scandal). That has now resulted in state legislation that upholds Ehrenfeld’s First Amendment rights and may yet result in a federal law that discourages libel tourists.

One sympathizes with Mr. Blackburn’s passion for the value we should accord reputation. No doubt, I am influenced by the culture from which I come, one that favors a free society’s interest in the exchange of information on matters of great public concern when, inevitably, the two values collide. I do not for a moment suggest that British courts must defer to U.S. rulings or law. British judgments will stand and, where respected, they may be enforced. But that is not a reason for American law to refrain from defending core American rights.

What puzzles me is why Mr. Blackburn seems to think bin Mahfouz has been ill-used. The Sheikh himself concedes having funded bin Laden to the tune of over a quarter-million dollars. He claims (on his website) he did it only once and not in connection with al Qaeda terrorism, but rather to promote the Afghan mujahideen in the late-1980s, just as the U.S. government did.

Perhaps he is telling the truth, perhaps he is not—there are intriguing facts and circumstances on both sides of the question. Mr. Blackburn says Stanley Kurtz and I “take it as fact that the litigious Mr. bin Mahfouz and his sons have done that which they have been accused of.” Actually, we haven’t done that. We’ve said there is more than enough basis here for suspicion and journalistic investigation on a matter of grave consequence. (I don’t think we’ve said much about bin Mahfouz’s sons at all.) Mr. Blackburn, in any event, plows ahead with the signal question: “Have they?”—as in, has it been established that the Sheikh has, wittingly or unwittingly, supported Islamic terrorism? Mr. Blackburn is entirely correct that this is the crucial question. Shouldn’t we be allowed to try to answer it?

Andrew C. McCarthy
New York, N.Y.