A General Loses His Case

By James Kelly

The four women and two men walked silently to their red leather armchairs in Room 110 of the Federal District Court Building in lower Manhattan. As dozens of reporters and spectators listened intently, the clerk asked Jury Foreman Richard Zug, an IBM computer specialist, if the panel had come to a decision. "We have," replied Zug. Reading carefully from the verdict form, Zug announced, "On actual malice: to the question, Has the plaintiff proved by clear and convincing evidence that a person or persons at Time Inc. knew that the defamatory statement was false or had serious doubts to its truth?, we find the answer is no."

In that legalese, the jury rendered its decision that TIME had not libeled General Ariel Sharon in a paragraph in its Feb. 21, 1983, cover story about an official Israeli report on the 1982 slaughter of hundreds of Palestinians in the Sabra and Shatila refugee camps. After giving that verdict, however, Zug read a statement on behalf of the jury. It said that "certain TIME employees, particularly Correspondent David Halevy, acted negligently and carelessly in reporting and verifying the information which ultimately found its way into the published paragraph of interest in this case."

"We went through this long, hard fight because we felt a principle was at stake," said TIME Managing Editor Ray Cave outside the courthouse. "The principle was, if you think your story is right, then you better defend it. We are pleased with the verdict." Sharon, on the other hand, insisted that he had been vindicated in his $50 million libel suit against TIME. "I came here to prove that TIME magazine lied," he said. "We managed to prove there was a clear defamation. We came over here to prove that they have done it with negligence and with carelessness. Altogether, I feel that we have achieved what brought us here to this country."

One reason both sides were able to claim victory was that, in an unusual procedure, Federal Judge Abraham Sofaer had asked the jury to disclose its partial findings step by step instead of deciding all elements of the case before announcing a verdict. On their third day of deliberations, the jurors said that they interpreted the disputed paragraph, which reported on discussions Sharon had held with Lebanese Christian Phalangists before the massacre, as having a defamatory meaning. Two days later they announced their conclusion that the contested passage was false. In deciding last week for TIME on "actual malice," the third and most complex point, the jurors determined that the magazine had not published the paragraph knowing it was false or with serious doubts about its truth. That decision ended the trial in TIME's favor.

"This was a meticulous jury, which examined the evidence that it had," said TIME's Cave. "Our problem is that we don't think they would have come to these conclusions if testimony that should have been before them had been before them. Nevertheless, we regret we gave the jury any reason to find TIME negligent or careless. There was without question one error in the story."

Ariel Sharon vs. Time Inc. was an unprecedented case of a major foreign official suing for libel in a U.S. court over a story about his official actions. Moreover, it was a trial in which that official's government, citing security reasons, controlled information considered critical to the outcome. Throughout the trial, TIME's lawyers stressed that the Israeli government had denied the magazine access to key witnesses, documents and testimony that were ; deemed central to its defense. "It would have taken the jury only ten minutes if I could have presented all the relevant information," said Thomas Barr, chief counsel for Time Inc. Cave said he believed that the full story of Sharon's meetings with Phalangists before the massacre would eventually be disclosed.

For Sharon, who was forced to resign as Defense Minister after the official Israeli report on the massacre, the trial provided a forum to refurbish his reputation at home and abroad. Sharon has never made any secret of his desire to become Israel's Prime Minister; the morning after the trial ended, he said on NBC-TV's Today Show that "I believe that one day I'll try to do that." By persuading the jury that the paragraph was false, Sharon has helped his cause, even though he lost the case.

The highly publicized trial also fueled the debate over the rights and responsibilities of a free press in a democracy. There is a pervasive feeling in the U.S. that the media have become increasingly unaccountable and arrogant; this is reflected in the growing number of libel suits being brought by public figures--and in a resentment by some of the vigorous way that TIME defended the truth of its story. At the same time, there is a mounting concern among journalists that the cost and effort involved in defending a libel case like the one brought by Sharon might inhibit the press from delving into the controversial acts of public officials and publishing what it finds.

TIME's cover story dealt with the report of a commission headed by Israel's former Supreme Court President, Yitzhak Kahan. The massacre of the Palestinians, which began two days after the assassination of Lebanese President-elect Bashir Gemayel, was carried out by Christian Phalangist militiamen. In finding that Sharon had "disregarded the danger of acts of vengeance" when he ordered the militiamen into the camps, the Kahan commission concluded that he bore "indirect responsibility" for what had happened. "It is impossible to justify the Minister of Defense's disregard of the danger of a massacre," the commission stated.

Sharon's lawsuit was aimed at the 22nd paragraph in TIME's eight-page story. The passage described a sympathy call Sharon paid to the Gemayel family the day after Bashir's death and said that details about the visit were contained in a classified Appendix B to the report. The paragraph went on to say: "Sharon reportedly told the Gemayels that the Israeli army would be moving ; into West Beirut and that he expected the Christian forces to go into the Palestinian refugee camps. Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but details of the conversation are not known."

Sharon, who affirms that he paid a call on the Phalangist leaders the day before the massacre but strongly denies discussing the possibility of revenge, filed a lawsuit in Israel only days after TIME published its story. He did so without first informing the magazine that he believed its paragraph was wrong. (The suit in Israel is still pending.) In June 1983, Sharon sued in New York because he felt, according to his lawyers, that only a victory in U.S. courts would fully vindicate him. TIME attorneys argued that a U.S. courtroom was an inappropriate forum in which to hear the case. In a motion filed last year to dismiss the case, the magazine's lawyers invoked the "act of state" doctrine, which holds that a U.S. court is not a proper place to debate the actions of a foreign government. Sofaer denied TIME's motion.

The disputed passage was based largely on the reporting of Halevy, who, like Sharon, is a sabra (native-born Israeli). TIME's attorneys sought witnesses and evidence that would corroborate the confidential sources Halevy said he had relied on for his report of Sharon's meetings with the Phalangists after Bashir Gemayel's death. According to Halevy, these sources included an Israeli intelligence officer with access to notes taken at one of the meetings. He told Halevy that Bashir's father had said to Sharon that his son's death should be "avenged."

In late 1983 and early 1984, TIME's lawyers formally asked Sharon for relevant documents, but to no avail. In mid-1984, Sofaer, at TIME's request, made several appeals to Israel under the Hague Convention for documents and the opportunity to take testimony from witnesses. The requests were only partly granted. TIME's attorneys also sent letters to the Israeli government asking permission to interview 29 military officers and 14 intelligence and security officials. The government told TIME it would consider its request, but TIME's lawyers soon discovered that the witnesses had been warned in writing that any discussion with them would violate the country's stringent security laws.

Among the witnesses TIME considered crucial to its case were General Amir Drori, the northern commander of the Israel Defense Forces during the war in Lebanon, and the deputy chief of Mossad, Israel's intelligence agency. According to the Kahan report, Drori had attended meetings with the Phalangist leaders around the time of the massacre. The Mossad agent may have taken notes during Sharon's condolence call. Last September, Drori was visiting Washington and the Mossad officer was attending a Harvard Busi- ness School seminar. When a TIME attorney, Paul Saunders, contacted both offi- cials for the purpose of serving subpoenas on them to give depositions, neither man was on Israel's diplomatic list. But within hours, Saunders told the U.S. court, Drori and the Mossad officer were given diplomatic status by the Israeli government, thus making them immune from U.S. legal proceedings.

The government eventually allowed TIME to depose three low-ranking officials, but it still forbade the magazine's lawyers to talk with the most important witnesses. TIME's attorneys especially wanted to interview Major General Yehoshua Saguy, the former director of military intelligence who attended meetings with the Phalangists, and General Rafael Eitan, Sharon's chief of staff. According to the Kahan commission, Eitan had warned Sharon of the possibility of revenge at three meetings the day the massacre began. On one occasion Eitan said, "They're seething with a feeling of revenge," and he spoke of "rivers of blood." TIME's lawyers argued that it was inconsistent for Israel to forbid these military officers to testify about the very same events that Sharon was allowed to discuss in court. TIME's complaints, said Sharon's attorney Milton Gould, were "a lot of malarkey."

It was not until four weeks ago that Sofaer was able to work out an arrangement with the Israeli government whereby representatives of TIME and Sharon examined Appendix B and related documents. After TIME's Israeli lawyer was permitted to view some, but not all, of the relevant documents, the magazine printed a retraction (Jan. 21) stating that Appendix B did not contain details about Sharon's visit to the Gemayels and expressing its regret. During the trial, Halevy explained that he had inferred that these details were in Appendix B from talks with Israeli officials and from the Kahan report. While admitting that saying this information was in Appendix B was a mistake, TIME continues to believe that further details of Sharon's meeting with the Gemayels are contained elsewhere in the secret evidence gathered by the Kahan commission's investigators.

In reaching their verdict, the jurors said that TIME's mistaken report that the information was actually part of Appendix B "aggravated" the defamatory interpretation they read into the disputed paragraph. But the judge had agreed with TIME on this point and had told the jury that the alleged libel did not center on the content of the appendix but rather on the substance of what TIME's paragraph said--namely, that Sharon discussed revenge with the Phalangists before they were sent into the camps.

After taking eleven days to reach their verdict, the jurors earned high marks for their methodical approach. Before dismissing the jurors, Sofaer told them he had been "impressed, indeed awed" by their diligence. In interviews with newspapers and TV stations later, several of the jurors explained how the deliberations had gone. Lydia Burdick, 35, said they decided the passage had a defamatory meaning because it "went far beyond" the Kahan report. Patricia De Loatch, 27, a marketing specialist for AT&T, said she concluded that the TIME paragraph was false because the magazine had not offered evidence to back up its claim. "I felt he (Sharon) knew there would be a massacre," she told the Wall Street Journal. "I wanted to believe what TIME said. But there just wasn't any proof." (Under the law, it was up to Sharon to prove the story was false, not up to TIME to prove it was true.)

De Loatch also said that she and one other juror initially felt that TIME should be found to have acted with malice, but Foreman Zug argued that Halevy must have believed the appendix contained the disputed information. "We did not think he would have said it if he were not 100% certain," said Burdick. "He knew it could be checked the next morning by everyone in Israel who had access to that report." Ultimately, according to De Loatch, the jury believed that Halevy "wasn't actually out to get Sharon. He didn't make up the story, and he actually believed what his sources told him."

When the jury's decision was finally announced, the first person Sharon called in Israel outside his family was his onetime boss, Menachem Begin. The former Prime Minister, who resigned from office in 1983, broke his reclusive silence and said on Israeli radio that the general had won an "absolute moral victory."

Though Sharon remains a controversial figure in his country, many Israelis were sympathetic to his case. Knesset Member Ehud Olmert, who was a witness for Sharon at the trial, praised the case as "a mark of honor both to Sharon and the state of Israel." But many of those who hoped Sharon would win his suit still held him accountable for the troubles that followed the country's war in Lebanon. Al Hamishmar, a Hebrew-language daily, hailed the jury's initial finding of defamation, but went on to say that "the court . . . was not asked to, and could not, acquit Sharon of the blame for this unnecessary war."

Other Israelis rejected Sharon's claim that he sued TIME not just for himself but for all Jews. Hirsh Goodman, the Jerusalem Post's defense correspondent, wrote a sarcastic column to Sharon thanking him for "gallantly fighting for me, my country and my people." Added Goodman: "You have been victorious, but you have not been vindicated. You have won a battle, but you have not justified a war."

In the U.S., most editors and libel lawyers welcomed the distinction the jury made on actual malice. "I'm impressed with the way the system worked," said Floyd Abrams, a New York lawyer who specializes in First Amendment cases. "Here the jury distinguished between a mistake and a lie. Most juries have not been able to do that, and consequently we have had a 75% reversal rate (of verdicts for the plaintiff) on appeal." The Washington Post editorialized: "The procedural technique of having a jury decide each element of the suit separately can help ensure that the difficult standard for libel claims set by the Supreme Court is met."

On the other hand, Judge Sofaer's decision to have the jury announce its interim findings before reaching a final verdict bothered some. They felt it would encourage others to seek the partial vindication that might be claimed from even an unsuccessful suit. "Sharon got the jury saying TIME lied about him," said Robert Comstock, editor of New Jersey's Bergen County Record. "I think there are other officials who would like to have a jury say that too." To Eugene Roberts, executive editor of the Philadelphia Inquirer, "it was clearly a political suit." The trend toward such suits, he said, amounts to "open season on freedom of expression." Abrams, however, predicted that TIME's ultimate victory would cause public officials to "think twice" before launching libel suits, "because they may lose on actual malice."

Many who hailed the jury's final verdict also agreed that the trial seemed to indicate that TIME had been careless. "The image projected was not that of & a cautious, well-organized, well-edited magazine," said Chicago Tribune Editor James Squires, "and I think that is a problem for all of us." Some criticized TIME for its handling of the dispute, especially its reluctance to admit error on Appendix B until it could see the appendix. "I thought the jury was absolutely correct in terms of the evidence presented in court," said Charles Peters, editor of Washington Monthly magazine. "TIME's editors were defensive and self-righteous. There may be evidence to justify TIME's indignation, but that evidence was not presented in court." But Henry Grunwald, editor in chief of Time Inc., argued that the magazine, "under the tremendous pressure of a very serious libel suit," could not have issued a correction on Appendix B until it was clear that a mistake had been made. "We could not retract sooner, because we could not know for certain we were wrong sooner," said Grunwald. "It may have seemed we were reluctant to retract, but we were not."

The widespread criticism that TIME was "arrogant," many editors said, was linked to a general perception that the press has become unaccountable. "People think the press is arrogant, especially big and powerful press like the networks and TIME," said Tony Ridder, publisher of the San Jose Mercury News. Noted Miami Herald Executive Editor Heath Meriwether: "I think the case was damaging to TIME and the big media in general. It is a problem we all share. We must be willing to correct errors." In post-trial interviews, TIME Managing Editor Cave explained that the magazine was certainly willing to admit it made a mistake in one of its statements, but stressed that it undertook the expensive and arduous libel defense not out of arrogance but because of a conviction that the information about Sharon's activities before the massacre, which was at the heart of the case, was true.

Such reporting on the official acts of government figures, some journalists and lawyers feel, should be completely protected from libel suits. "Public officials have total immunity for anything they say," Editor Roberts argued. "If they are immune from suits on one hand, and free to sue everyone else, then what has been a very delicate balance of rights will become unbalanced." Other journalists disagree with the view that public officials merit no protection, and they contend that such a prohibition would be tantamount to giving the press a license to be irresponsible. The outcome of the Sharon | case represents, they feel, an attempt to strike a reasonable balance between the competing interests involved. "America rightly gives greater latitude than Britain for honest debate," says Harold Evans, former editor of the Times of London and currently the editorial director of U.S. News & World Report. "The jury's verdict is a triumph of common sense: TIME's journalism was sloppy, but there is no doubt they believed what they said is true."

Yet despite the Sharon verdict in TIME's favor, which might suggest that the test of "actual malice" is as sturdy as ever, the growing number of libel suits involving stories on the official conduct of government figures threatens to strike at the core of what the Supreme Court sought to preserve in New York Times vs. Sullivan: a hearty and robust debate on issues of public importance. Many Americans may relish the prospect of seeing journalists on the defensive in a courtroom. But ultimately they may decide that the possible consequences--a less vigilant press, a dimmer light cast on critical issues--are not worth that spectacle.

With reporting by Kenneth W. Banta/New York, with other bureaus