In Support Of S. 3518, The Speech Act
By Letter to the Senate Judiciary Committee | by R. James Woolsey, ACD Board Member
Saturday, July 10th, 2010 @ 5:38PM
Hon. Patrick J. Leahy
Chairman Committee on the Judiciary
433 Russell Senate Bldg
United States Senate
Washington, DC 20510
The Honorable Jeff Sessions, Ranking Member
Committee on the Judiciary
326 Russell Senate Office Building
United States Senate
Washington, DC 20510
Dear Chairman Leahy and Senator Sessions:
I write to you in support of S. 3158, the “Securing and Protecting our Enduring and Established Constitutional Heritage Act,” or the SPEECH Act, which you have introduced. In my view its passage is a vital step in safeguarding our national security and upholding our ideal of freedom of expression.
I have served four Presidents – two Democratic, two Republican – as a Presidential appointee in the field of national security, most recently as Director of Central Intelligence, 1993-95. I am especially concerned with the way in which our current enemies – Islamist terrorist movements and those who fund and support them – have been able to use “lawfare” to prevent honest examination and exposure of the facts by American authors and journalists conducting good-faith investigations and research into matters of U.S. national security. Such authors and journalists have increasingly been sued for libel by corrupt foreign billionaires, terror financiers and hostile political figures by suits being brought in countries such as the UK that have plaintiff-friendly libel laws. In many cases, these plaintiffs, known as “libel tourists,” have used the foreign libel laws as a weapon to target U.S. scholars, researchers, bloggers and others for publications that are entirely unobjectionable under American law. Such suits have caused heavy financial burdens, forcing authors and publishers into silence; they have ruined reputations and deterred others from further investigative reporting.
This libel tourism is a very dangerous weapon against our ability to understand and circulate descriptions of the activities, such as the funding of terrorist groups, by our enemies. No one is immune from having this weapon used against them – I testified, for example, several years ago in a UK court on behalf of the accuracy an article in the Wall Street Journal in a case brought by the now-deceased Saudi billionaire Khalid bin Mahfouz. The trial judge ruled against the Journal — this same judge has ruled against a number of libel defendants in cases brought by Mr. Mahfouz and other libel tourists.
The Journal eventually prevailed on major issues once the case was appealed to the House of Lords, but very few authors or publications can afford this kind of a legal fight.
A case that illustrates the effect of even a threat of such suits, is the book “Alms for Jihad,” authored by two Americans. Their English publisher, Cambridge University Press, was threatened by Mr. Mahfouz. Cambridge University Press chose to settle, recalled and literally pulped all copies of the book.
Cambridge University has been for more than eight centuries a distinguished seat of Western learning. For its press to be forced to hold a book burning is a disgrace.
It should be noted that in many of these libel tourism cases the book or publication which the plaintiff seeks to repress has never been sold or published in the country where he brings suit. This was the case with the book “Funding Evil: How Terrorism is Financed and How to Stop It,” by the New York based author, Rachel Ehrenfeld, who was also sued by Mr. Mahfouz. The English court held that a few copies ordered over the internet by purchasers who had addresses in the UK were sufficient to establish jurisdiction. Ehrenfeld’s refusal to submit to the jurisdiction of the English Courts led the judge – without hearing a case on the merits, and in her absence – to make a declaration of falsity. In his default judgment against Ehrenfeld, the judge also ordered her to pay heavy fines and legal fees. Ehrenfeld’s efforts to prevent the enforcement of the British judgment in New York, initiated the first anti-libel tourism law in New York State, in 2008. It is time to protect all Americans.
This lawfare deprives the American public and policy makers of vital information. It endangers our lives and liberty, and the safety and integrity of our democracy.
Freedom of speech and national security are inextricably linked. As Jefferson said so well, we cannot have the latter without the former. Freedom of expression encourages our citizens to responsibly find, develop, exchange, and publicize information on critical issues affecting their welfare. Our Constitution enables Americans to do this without fear of reprisal by our government. But absent a change in US law, foreign libel laws will continue to suppress close scrutiny of terrorists and those who finance them by scholars and the media. We must ensure that those who help protect our freedoms by research, broadcast, and publication are not unjustifiably subjected to the whims, attitudes, and powers of others.
I applaud you for introducing the SPEECH Act, which is designed to counteract the chilling effects of libel tourism by preventing the enforcement of foreign libel judgments whose award does not comport with American standards of due process and freedom of expression, and permitting the recovery of attorneys’ fees in certain instances.
The passage of this bill will help ensure that we maintain our strength, vigilance, and liberties in the years ahead.
Thank you for your leadership and work on this critical issue.
R. James Woolsey