McCarthy: Put a Chill on "Lawfare"

As we mentioned earlier this week, there is movement in the U.S. to stem "lawfare," or the use of courts to silence or intimidate critics of radical Islam.

Former federal prosecutor Andrew McCarthy makes a strong case for proposed congressional legislation that would allow U.S. citizens to counter-sue those who bring libel suits in foreign courts where standards of proof for plaintiffs are far less stringent than American courts.

The most glaring case involves Rachel Ehrenfeld, who was sued in British courts by a Saudi magnate suspected of financing terrorism. Khalid bin Mahfouz won damages against Ehrenfeld for her book, Funding Evil, even though it was never published in England.

It is the government's job to protect American liberties, McCarthy argues. Allowing "lawfare" like bin Mahfouz's to flourish poses a direct challenge to some of our most cherished freedoms. McCarthy puts the issue in a nutshell:

"If information cannot be freely exchanged, if journalists must fear being sued over information reported in good faith on matters crucial to our defense — matters such as the financial networks supporting jihadist terror — then we cannot make sound security policy. We become dependent on government — in all its dysfunction and political correctness — with no means to evaluate its performance or induce it to change. We become reliant on government for our information. In fact, we become hamstrung even in our efforts to learn what little the government is willing to reveal."

Letting Americans fight back in court creates no burden on other nations to conform to our laws and legal standards, McCarthy said. But it could offer a dose of reality to those inclined to shop the globe for the most favorable courts in an exercise dubbed libel tourism:

"We will arm Americans with reciprocal power to sue you for damages in a court far away from your home — albeit in an American federal court that will surely give you a fairer shake than American journalists have gotten in the British court that has become known as "the Club Med for libel tourists.'"

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Paul Tweed on US Libel Tourism

Submitted by Maria McCann, May 23, 2009 11:14

Media lawyer Paul Tweed has been focusing on libel tourism legislation being debated by the US Senate, following the passing of Bills by the New York Assembly and the House of Representatives.

Paul Tweed argues that these moves to block the enforcement of UK libel judgments in the US are totally disproportionate, excessive and unnecessary, and deeply offensive towards the UK courts, not to mention UK law.

The legislation is a direct result of a decision by Dr Rachel Ehrenfeld,

author of the book "Funding Evil", not to defend a libel Action brought against her by businessman Bin Mahfouz in the High Court in London. Instead, she unsuccessfully sought the assistance of the New York State and Federal Courts, and when that failed, she turned to what has been a very effective lobbying campaign in the United States.

Paul Tweed has expressed his bewilderment at the totally one sided press coverage in the United States by the likes of The New York Times and The Washington Post, who have refused to publish any dissenting opinion expressed by UK and US claimant lawyers. The hysteria and priority given to this issue in the US by lobbyists and the press is all the more baffling as having acted for international claimants on many occasions during the course of the past three decades, Mr Tweed's firm has never once had to seek enforcement against assets in the US. Indeed, the Claimant in the Ehrenfeld case, Saudi businessman Bin Mahfouz, has apparently not even sought to enforce his judgment.

Mr Tweed has written to the Senate Judiciary Committee highlighting what is a totally disproportionate response and the fact that the big losers will be US citizens abroad who are likely to be treated as fair game by the more unscrupulous sections of the tabloid press as a result of the publicity given to the libel tourism legislation.

The question also has to be asked as to where this interference in another country's legal system is going to end. What about the comparable case where a US citizen is entitled to sue for damages for personal injuries sustained if he is knocked down as a result of the negligent driving of a motorist while crossing a London street? What is the difference between an entitlement to sue for damages for personal injuries and a similar redress for injury to reputation?

Paul Tweed proposes that one of President Obama's first actions should be to honour one of his election pledges to reduce US interference in the affairs of other countries, and to scrap this offensive legislation.

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