Imagine a future in which foreign dissidents traveling to Washington are sued by their governments in U.S. courts for defamation.
A federal court may be on the verge of making this nightmare a reality.
Last month a group of U.S. government commissions and human-rights organizations, including the Tom Lantos Human Rights Commission and Freedom House, filed amicus briefs urging the U.S. District Court in Washington not to narrow what is known as the "government contacts exception."
That is a longstanding rule that says people who petition the federal government cannot be sued in the District of Columbia if they reside elsewhere.
The court is now considering whether this rule applies to foreign citizens and their wider activities in Washington, such as meeting journalists or attending conferences.
The case involves a former Soviet army officer named Rinat Akhmetshin, who sued hedge-fund investor William Browder in 2018 for defamation after Browder accused him of being a Russian spy.
Akhmetshin, a Washington lobbyist, was an attendee of the 2016 Trump Tower meeting that was closely examined as part of the various investigations of Russian interference in the 2016 presidential campaign.
Browder, who is a British citizen, is not a dissident.
But his persistent advocacy on behalf of his former lawyer, Sergei Magnitsky, has made him a target of the Kremlin.
Magnitsky died in Russian prison after exposing government corruption, and Browder successfully lobbied the U.S. to pass a law sanctioning Russian officials.
Browder told me he believes that Akhmetshin’s lawsuit is part of a wider Russian strategy to wage lawfare against him as retaliation for this successful campaign.
His theory is lent some credence by the fact that Akhmetshin, who is a U.S. citizen, is suing only Browder, not other media outlets that first reported his former role supporting a counterintelligence unit of the Soviet military.
Browder claims that the government-contacts exception applies to his work lobbying for the passage and enforcement of the Magnitsky sanctions.
Akhmetshin argues that Browder’s work in the capital which is not directly involved in petitioning Congress or the federal government constitutes a "persistent course of conduct" in Washington, making it a proper jurisdiction in which to sue him.
The outcome of Akhmetshin’s lawsuit against Browder is less important than the precedent it could set. A narrowing of the government-contacts exception would "risk subjecting countless advocates and activists" to frivolous lawsuits, argues an amicus brief for the Lantos Commission and Freedom House.
It would also hamper the ability of human-rights organizations to perform their mission, which includes bringing dissidents to Washington to meet with journalists, academics and government officials.
This may sound far-fetched. But the prospect of well-funded libel lawsuits has already chilled book publishing in the U.K., which has tougher libel laws than the U.S.
The British publisher of a critical 2004 book about the Bush family and Saudi Arabia declined to publish the book, fearing libel lawsuits from Saudis.
More recently, British publishers have shied away from releasing books critical of Russian oligarchs.
Now imagine if foreign dissidents had to make the same kinds of calculations as British publishers. It would be a tragedy.
Dissidents have historically helped correct and inform U.S. foreign policy.
Their ability to play that role will be hampered if they have to hold their tongue so as not to provoke or offend their oppressors.
Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for The Washington Times, The New York Sun, and UPI. Read Eli Lake's Reports — More Here.
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