Truth, Justice and the American Way

I am posting this on behalf of Aaron Eitan Meyer:

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Truth, Justice and the American Way

A long time ago, when Superman was proud to fight for American ideals, and GI Joe could never be thought of as anything other than the embodiment of the AMERICAN soldier, the mantra “for truth, justice and the American Way” found its way into the American lexicon.

As the recent ruling in the case of Ehrenfeld v. Mahfouz (2007 NY Slip Op 09961, December 20, 2007) and a slew of other such lawsuits increasingly show in truly terrifying fashion, Americans involved in fighting the war on international terrorism are finding themselves subject to foreign jurisdiction – without recourse to the laws of their own nation.

In the above-mentioned case, the New York Court of Appeals found itself unable (and perhaps unwilling) to protect Dr. Ehrenfeld from the predatory and counter-American ‘defamation’ suit brought by Mahfouz, a Saudi billionaire and alleged financier of, shall we say, extralegal military actions directed at civilians.

This is where the mantra needs to be recalled, without being merely jingoistic. The people of this nation, even before declaring independence from Great Britain, found that free speech meant that the truth was a bar to defamation cases. Indeed, John Peter Zenger’s trial for defamation, held in the then-Colony of New York, established the concept that the truth of allegedly defamatory statements necessitated a change in the justice system, to take note of that fact. Though the legal precedential value of the case is negligible, the political and historical ramifications were both profound and lasting.

Thus was the link between truth and justice enshrined in the American continent long before the establishment of the United States, and the particular protections deemed worthy of inclusion into its formative document, the Bill of Rights of the Constitution. The ‘American Way’ began nearly half a century before America the nation.

Perhaps one cannot fault the Courts overly for finding themselves unable to protect the interests of those such as Dr. Ehrenfeld. The real question must revolve around the appropriate measures to be taken in order to protect not only the individual rights guaranteed in the US Constitution and state constitutions, and to which branches of the government must be brought into the fray.

The simplest measure to be taken would involve various state legislatures, notably that of New York. By expanding their respective ‘long-arm statutes’ to keep pace with the age of the internet and other information technologies, private individuals would no longer find themselves without domestic legal recourse to foreign predatory lawsuits brought to intimidate and silence them.

Along the same lines as the preceding would be to bring the matter before Congress. Much as United States soldiers deserve their government’s protection against suits brought against them in international courts stacked against them, so too do the reporters and academics who seek to bring the shadowy financiers of global terrorism into the light of public scrutiny demand protection.

Regardless of how one may wish to term the current War on Terror, to dispute the pervasiveness and growth of international terror is to bury one’s head into the ground. And yet, academia in this country has already been effectively co-opted, either outright, as by Saudi funding of university Middle East Studies departments, or through slavish devotion to fundamentally flawed and slavish devotion to the Said school of ‘blame the West [currently, read: the United States] for everything.’

And when academics and reporters dare to act in the American fashion, to have the effrontery to speak on subjects of critical import to the nation, they leave themselves open to the extra-domestic loss of their rights as Americans. In other words, by seeking to protect this nation, they are left not only bare of protection here, but also adversely affected by less scrupulous courts abroad.

This brings the matter to the second avenue of action. A hallmark of America’s system of government is that the power vested in the federal government by the People is separated among the three branches, along with requisite power for each to function.

Perhaps the greatest jurist in our nation’s history was Chief Justice John Marshall, who served for 34 years on the Supreme Court, charting the course of our nation ever after. An unabashed Hamiltonian, he was a firm proponent not only of the federal government, but of the executive branch as well.

He did not believe that the Court could ever compel the President to act in accordance with its own constitutional interpretation as it related to a core executive power as stated in the Constitution. And yet, in the case of Worcester v. State of Georgia, 31 U.S. 515 (1832), the by-then aged jurist strongly implied that the President had a reason to act.

The case involved a missionary who was living in Native American territory, without the consent of the State of Georgia. The State captured him and sentenced him to hard labor, later flaunting an earlier ruling by Marshall. When the matter came before the Supreme Court, Marshall reversed the state court’s ruling, prompting President Andrew Jackson to famously (and allegedly) exclaim that since it was Marshall’s decision, that the Chief Justice could himself attempt to enforce it.

The aspect of the case that is relevant to the concepts at hand lay in the fact that at the time, interaction with the Native American tribes was treaty-based, and thereby within the purview of the President as the head of the Executive Branch. The Chief Justice strongly urged the President to act in order to preserve the rights of the individual by exercising the power of the executive on his behalf.

Referring to the Georgia law then at issue, Marshall defined it strongly: “He was apprehended, tried, and condemned, under colour of a law which has been shown to the repugnant to the constitution, laws, and treaties of the United States.” 31 U.S. at 562. The Chief Justice went on to say that, had the issue then been about property seized in such a manner, there would have been no dispute but to return it.

And now, 175 years later, the wording of John Marshall must find resonance to actions brought against those who, like Dr. Ehrenfeld, act in accordance with this nation’s laws, and are brought down for it.

Can it be said that the defamation laws of Great Britain, recognized as faulty by the people of this country centuries ago are any less ‘repugnant to the constitution, laws, and treaties of the United States’ than that Georgia law that demanded non-Native Americans register with the state in order to live among Native Americans?

John Marshall responded to the issue by stating that, “[i]t cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. Id

At issue for Dr. Ehrenfeld, and all those in her position, is not mere pecuniary loss, or the loss of a personal liberty enshrined in the very first Amendment to our Constitution, but that the punishment is disgraceful and inflicted upon those who are innocent of any wrongdoing.

Perhaps the present administration may find it expedient to issue an Executive Order addressing the matter, irrespective of legislative action that may precede, accompany, or follow it. It is certainly within the realm of Executive Authority to affirmatively protect the personal rights of Americans as affected outside this country, even as it would be of great benefit politically for the President to do so.

Regardless of which avenue is pursued, we must bear in mind that the American Way demands that Justice be served by Truth. The defamation laws of nations such as Great Britain fail to meet that test, and cannot be permitted by this, or any, administration to supplant American rights and values. Permitting the continuance of such actions negates the Constitution, the laws of the United States, and our very history. 

Comments

[Denny Crane]

I'm confused. Is this something new?

Our citizens, military, academic, or otherwise, should be open to lawsuit and subject to the laws of other nations. Particularly when we travel to other nations.

If a person's actions are entirely within our borders, what is the real recourse achieved by that person being sued and losing said case in some other nation? It would be up to the person to fight the case or not show up or whatever.

The obvious exception to all this is where treaties between the nations come into play. We're constitutionally obligated to live up to treaties we've signed, so that part is a no-brainer.

There's precedent here:
http://en.wikipedia.org/wiki/Cavalese_cable-car_disaster

[Aaron Eitan Meyer]

Well, there are two main factors that need to be addressed.

First, in the age of the internet, there's little that can completely fall into the category 'entirely within our borders.' In this case, the ostensible 'basis' for the defamation suit was something like five copies sold online in England. Neither party to the suit was British; it was simply a convenient forum for Mahfouz to intimidate an American citizen without having to account for anything himself. The catch with not responding, or otherwise refusing to comply with such a court's demand is that a default judgment is entered against her, which will have ramifications ranging from non-US publication of subsequent works to other, legal penalties.

Nor is it analogous to the cable car case, as the act that is at issue, being the publication of 'defamatory' statements, happened within the US - and the ONLY reason for bringing the suit in England was in order to defeat the American laws that should have applied.

Second, regarding the matter of treaties, recalling the Pacifus Letters is in order. There were many who simply proclaimed that, since the US was bound by certain international treaties, the Constitution itself demanded action. It took Hamilton's reminder to the people that the issue was anything but as 'clear' as they believed it to be. Presently, considering the US' state of war against terrorist ideology, other purely executive 'core powers' also come into play, such as national security and so on.

Dr. Ehrenfeld acted, in this country, in accordance with the rights guaranteed by the Constitution - rights that do not stem FROM the text, but are rather elucidated in it, as a grant by the People, who remain the actual Sovereigns of the nation. Indeed, it could be argued that any treaty that could lead to the deprivation of American rights abroad, especially by actions like that of Mahfouz, is wholly repugnant to the Constitution, and annulled.

[Denny Crane]

I've heard of stories where a US citizen travels to Egypt and buys some piece of antiquity, not knowing it's true nature. When they try to leave the country to go home, they're arrested and sent to jail. There's nothing the US Embassy can do about it.

This is somewhat analogous to the cable car incident, but the soldiers were in fact protected by treaty and the Italian SC ruled that the treaty overrode the nation's right to pursue a case.

So, I'm still failing to see where there is a deprivation of our rights abroad - we have whatever rights those nations allow us in any case.

There's this, which is a criminal case:
http://www.time.com/time/nation/article/0,8599,1557842,00.html
(Didn't stand up)

Your article is about civil actions. Again, I'm not seeing the case you're trying to make yet.

We have similar criminal protections here in the USA: you can live in Chicago, travel to Vegas where gambling is legal, and go home to Chicago where it's not and not face a criminal gambling charge there. However, you can certainly be sued by a person or company from another state if you defame them (for example) via the Internet, or other means.

Let me turn the question around. What if this truly is a case of defamation here, by some US based academic against a foreign person?

[Aaron Eitan Meyer]

If it were truly defamatory, the aggrieved individual could just as easily sue here. And again, the act itself takes place entirely within the US.

To use a domestic legal analogy, it's as if an defamatory act takes place in New York, where the defendant resides, and the plaintiff, who lives in Nevada, sues in Wisconsin, on the flimsy basis that a couple of copies were available there.

You mention the fact that one can be sued after the allegedly defamatory statement is seen over the internet. That is, indeed, a major problem right now domestically - but still fundamentally different than the case being discussed. In such an instance, between states, the First Amendment still governs, and defamation laws must conform to the overall federal scheme.

But to return to your question, the fact is that this type of suit was tried in the US, by various Islamist organizations, who had the suits thrown out as frivolous, or otherwise dismissed in the United States. It was after those cases that the suits were brought in foreign arenas - for the express purpose of preventing the protections of the American system. That is what I'm referring to in the context of 'laws' repugnant to the Constitution.

It doesn't even pay to flip your question around, and to ask why Mahfouz did not bring his action in the United States. That much, at least, is all too clear.

[Denny Crane]

Another interesting read:

http://en.wikipedia.org/wiki/David_Irving

[Denny Crane]

I meant...

Shouldn't there be protections in the case where someone within the borders of the US does indeed slander someone overseas?

The question of venue should be up to the person slandered, or it becomes an unreasonable burden for justice to be done.