The legal harassment of those investigating Tony Rezko

Andrew Walden, Hawaii Free Press, April 27, 2009

Why is there so little media investigation of the financing behind Barack Obama’s early political sponsor—and now convicted felon—Tony Rezko?

The dual US-Syrian citizen Rezko--who assisted Obama in the purchase of his Chicago mansion--was heavily funded by loans from Iraqi-British ex-Baathist billionaire Nadhmi Auchi. According to testimony at Rezko’s trial, Obama met Auchi at an April 3, 2004, event at Rezko’s home during Obama’s 2004 US Senate campaign. The Times of London reports discovering, “state documents in Illinois recording that Fintrade Services, a Panamanian company, lent money to Mr. Obama’s fundraiser in May 2005.” Fintrade directors, according to The Times “include Ibtisam Auchi, the name of Mr. Auchi’s wife.”

Media bias is an easy—and intellectually lazy--explanation. Journalists digging into stories involving Auchi often find themselves peppered with threats of libel litigation from a London law firm known as Carter-Ruck. Hawai'i Free Press has received several such letters.

In a free society, one might expect reporters confident of the accuracy of their reporting to shrug off such threats. But Auchi’s attorneys are operating under the laws of an increasingly un-free society—England.

Auchi’s litigation threats have chased eight articles from the internet sites of the UK Guardian, Observer and New Statesman. Sweden-based website Wikileaks has posted the eight articles but writes:

“The censorship of The New Statesman's political editor, Martin Bright, who was co-author for some of the Guardian and Observer articles, is particularly galling. In April Mr. Bright warned New Statesman readers about the censorship of the Guardian and Observer in an article on the Index on Censorship's annual Freedom of Expression Awards (one of which was won by Wikileaks). Then, in a bow to Kafka's The Trial, Mr. Bright's warning was in its turn censored by legal threats from Auchi.”

Wikileaks itself is now under legal attack by Auchi’s lawyers.

What is so stifling about English libel law? Carter-Ruck explains on its own website:

“A libel claimant does not have to prove that the words are false or to prove that he has in fact suffered any loss. Damage is presumed.”

In a December 2003, obituary, former C-R partner David Hooper wrote:

“The libel lawyer Peter Carter-Ruck, who died on Friday, had a chilling effect on the media. He was a chancer, out for the maximum fee. And he did for freedom of speech what the Boston Strangler did for door-to-door salesmen.”

Posted on the Carter-Ruck website, an article by C-R partner Nigel Tait outlines four very specific “matters the courts consider suitable for injunction.” These include “unauthorized topless shots of women….” Tait then points out that in spite of these limited legal bases for “prior restraint” some publishers can be convinced to censor themselves by “the first two (sic) weapons of the Spanish Inquisition. Fear, surprise and ruthless efficiency.”

(UPDATE: The Tait article has now vanished from the CR website, but readers can still see it HERE )

Perhaps hoping to inspire “fear and surprise” with “ruthless efficiency” Carter-Ruck demand letters—laden with misspellings and what appear to be cut-and-paste formulations--have been going out not only to large British newspapers, but also to American newspapers and both well-known and obscure bloggers. April 23, 2008—in the midst of the US Presidential race--an article on Auchi’s Middle East Online website boasted of knocking articles off of the Guardian and Observer websites. Bloggers began receiving Carter-Ruck letters demanding that allegedly defamatory comments be removed from their comments section. MEO displayed a sphinx-like image of Auchi. The caption: "Tracking even the search engines."

It worked. When the November election came and went, the American public barely knew Rezko and knew Auchi even less. Obama won.

Hawai'i Free Press received an emailed letter from Carter-Ruck, February 10, 2009. It was followed by faxes and mailings. Then the phone calls started. C-R staffer Nuala Guiney rang this writer’s cell phone at 1AM and again at 5AM one morning. The demand: “cease publishing these false and defamatory allegations about our client by forthwith removing them.” C-R also claims: “You should be aware that our client has lived and worked in England for over 25 years and that your article is likely to have been read by a substantial number of readers in England. Accordingly, in relation to publication of the article in England, it will be subject to English law and the jurisdiction of the court in England.”

The letter is labeled “Not for Publication.” Like many of the things one finds under a rock, Carter-Ruck’s “fear and surprise” works better in secret. Like Tait’s article, this is a sign of weakness on their part. Their letter was sent to a publication and concerns matters of public interest.Hawai'i Free Press is not bound by such unilateral declarations. The Carter-Ruck letters are published along with the reply from Hawai'i Free Press attorneys in pdf file at this link.

In response The Legal Project of the Middle East Forum assisted Hawai'i Free Press in obtaining representation. According to its website, “The Legal Project, as part of the Middle East Forum, aims to protect researchers and analysts who work on the topics of terrorism, terrorist funding, and radical Islam from lawsuits designed to silence their exercise of free speech.” Volunteering his services: Chicago attorney Timothy Kapshandy and a team from Sidley Austin.

Concerned attorneys are not alone is stepping forward. In the U.S. efforts are underway to prevent foreign court libel judgments from infringing on the First Amendment guarantees of press freedom. On May 7, 2008, Senator Joseph Lieberman (I-CT) was among those announcing introduction of the Free Speech Protection Act which has been referred to the Senate Judiciary Committee for consideration. He explained: “The United Kingdom has become a popular venue for defamation plaintiffs from around the world, because under English law it is not necessary for a libel plaintiff to prove falsity or actual malice as is required in the United States.”

Senator Lieberman’s Free Speech Protection Act is modeled on “Rachel’s Law” signed April 30, 2008 by New York Governor David Paterson.Rachel’s Law had passed both houses of the New York state legislature unanimously March 31 after being introduced with bi-partisan support. “Rachel” is Rachel Ehrenfeld, an investigative journalist and author of Funding Evil: How Terrorism is Financed and How to Stop It.

Ehrenfeld’s 2003 book, published in the U.S., pointed to Saudi multi-millionaire Khalid Salim Bin Mahfouz as a funding source for al-Qaeda prior to 9-11. Mahfouz sued. He is Saudi; the book, its author and publisher are American; but rather than coming to a U.S. court, Mahfouz selected English jurisdiction in a typical case of “libel tourism.” Ehrenfeld did not answer the English suit and instead countersued in U.S. federal court.

The Illinois legislature has now passed a similar law [wow! my home state finally did something right!] and California legislators are considering following suit with SB 320. The Los Angeles Times April 9 editorialized: “Some public figures are using England's plaintiff-friendly laws to go after books they don't like. New York and Illinois have come to the defense of U.S. writers. Congress and California should too.”

The UK Guardian reports:

A cross-party trio of influential MPs has urged the government to implement radical reforms of Britain's much-criticized libel laws, including the "international scandal" of libel tourism, which allows wealthy foreigners to sue in the English courts for material published abroad.

Their initiative is the first salvo in series of impending inquiries aimed at scrutinizing the laws of defamation, which have been widely attacked as a limitation on free speech.

In a House of Commons debate on Wednesday, the MPs, Labour's Dennis MacShane, the Conservatives' Michael Gove and the Liberal Democrats' Norman Lamb, won some concessions from the government...

Norman Lamb said he was concerned about how the libel laws act as a constraint on investigative reporting and referred to the case of the British Iraqi billionaire Nadhmi Auchi.

He said: "He is a British citizen – an Iraqi exile – and he is reported to be a multibillionaire. He was convicted in France in 2003 of fraud in a trial involving the oil company Elf. Importantly, he continues to assert his innocence of the charges – there was a conviction, but he is pursuing routes of appeal against it. He was barred from entering the United States in 2005.

"My interest in the matter is in his connections to Tony Rezko, who was convicted of fraud, money laundering and bribe-related charges in Illinois, and who is currently in prison pending sentencing. We understand that sentencing has been delayed, and it has been suggested that he should talk to federal prosecutors, especially about allegations against Illinois governor [Rod] Blagojevich, which are being investigated.

"There is political interest in the US because of the connections between Rezko and President-elect Obama. I make no allegation at all relating to the latter.

"There have been reports that a company related to Mr Auchi registered a loan of $3.5m to Tony Rezko on 23 May 2005. That and other alleged connections are obviously of great interest to investigative journalists and others. More to the point, it is legitimate to investigate such a matter, given that Auchi is a prominent British citizen with political connections in this country and overseas. As I said, it is not appropriate to go into more detail, but it is alleged that Mr Auchi and his lawyers, Carter-Ruck, have been making strenuous efforts to close down public debate. Of course, it is absolutely legitimate for any citizen to demand accurate and rigorous investigation and reporting. The question is whether UK libel laws have the disproportionate effect of discouraging legitimate reporting. Many believe that they do."

The three MPs are going to meet a lot of resistance. As Auchi’s General Mediterranean Holdings website explains:

“On the 20th Anniversary of the founding of GMH, Nadhmi Auchi was presented with a painting of the Houses of Parliament signed by the Prime Minister, the Leaders of the Opposition parties and 130 Ministers & Members of Parliament in recognition of his outstanding achievements within and outside the United Kingdom.”

In response to the Carter-Ruck letters Hawai'i Free Press re-researched its article and made one change to reflect conflicting information about whether Auchi’s General Mediterranean Holdings owns stock in BNP-Paribas, a leading French bank. The article remains posted online: Lehman Brothers: Obama’s Rezko-Auchi conflict of interest.

Carter-Ruck claims, “it is untrue that our client is the largest private shareholder in BNP Paribas.” But the website of Auchi’s Luxembourg-based "Compagnie Internationale de Participations Bancaires en Financières SA" (CIPAF) boasts, “Until the merger of BNP and Paribas, the Cipaf group was one of the largest independent shareholders of Compagnie Financière de Paribas. Since the merger, it ranks amongst the topmost investors in the enlarged BNP Paribas, now a leading European banking group.”

Perhaps Carter-Ruck should sue Auchi for defaming himself. If that sounds absurd consider this item from the former C-R partner, Hooper:

“I left his firm in pure Carter-Ruck circumstances. (Book publisher) Heinemann, for whom we acted, was publishing a book about the Ford family, by Robert Lacey. I was told by Carter-Ruck that there was no conflict in our advising. Lacey sent part of the book to Henry Ford for comment. Later I found Carter-Ruck advising Ford that the book was full of libel. He proved unable to give a truthful explanation.”

The letter asserts nine points which it calls “highly defamatory and false.” This is typical Carter-Ruck style. A C-R letter to The New Statesman contains ten pages of “It is untrue” --including 14 points denying this writer’s August 24, 2008 Accuracy In Media article titled,“Iraqi Billionaire Threatens Reporters Investigating Rezko Affair.” There are several such “Not for Publication” Carter-Ruck letters posted online by bloggers at TheRealBarackObama, RezkoWatch, AJacksonian, and NoQuarterUSA—where C-R actually demanded removal of comments to a blog post.

This writer is researching the nine points made in the C-R letter and will soon publish a detailed analysis of each with supporting links to primary sources and media articles which have withstood threats from C-R. If C-R can use cookie-cutter letters to intimidate, then researchers and journalists can certainly save a lot of time and effort by supplying carefully researched and documented cookie-cutter answers. Stay tuned.

Appears in the Hawaii Free Press. Thanks to Andrew Walden and HFP for covering this topic. Copyright remains with the aforementioned.