Of Meaning and Malice

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To Ariel Sharon's attorney Milton Gould, the issue before the jury was the destruction of the reputation of a hero and patriot. "It falls to you, six Americans," he said, "to do your duty and eradicate this infamy." To Thomas Barr, chief counsel for Time Inc., what was at stake was the ability of the press to seek and print the truth. "This involves a news story of how a horrible, brutal, insensible massacre of women and children took place," he said. "That is what the press's job is: to dig at things like this, to pick at things that may not be pleasant or comfortable for the people involved, to try to get as much of the story as possible into the hands of the public so that the public can make decisions about how we want to run our lives."

After eight weeks and 14 witnesses, the case of Sharon vs. Time Inc. culminated last week with vigorous summations by each side. It was now up to the jury to decide if, as the former Israeli Defense Minister contends, TIME magazine libeled him in a paragraph in its Feb. 21, 1983, cover story about an official Israeli report on the 1982 massacre of hundreds of Palestinians in the Sabra and Shatila refugee camps in West Beirut.

Both sides had rested their cases three weeks ago, but the attorneys' final arguments were delayed while Federal Court Judge Abraham Sofaer worked out a highly unusual arrangement with the Israeli government to allow limited access to secret documents involved in the case. After its representatives had seen . some, but not all, of the relevant documents, TIME issued a correction regarding one sentence (see box). But TIME asserted that the substance of the paragraph was true and protested that it had been denied access to key testimony given to Israeli investigators that could confirm the story.

The cover story dealt with the published findings of a commission headed by Israel's Supreme Court president, Yitzhak Kahan. The killings, which began two days after the assassination of Lebanese President-elect Bashir Gemayel, were carried out by Christian Phalangist militiamen. The Kahan commission concluded that Sharon had ordered the militiamen into the camps and bore "indirect responsibility" for what had happened. "It is impossible to justify the Minister of Defense's disregard of the danger of a massacre," said the commission report. Sharon resigned his post two days after the findings were released.

Sharon's lawsuit is aimed at the 22nd paragraph in TIME's eight-page story, which reads as follows:

"One section of the report, known as Appendix B, was not published at all, mainly for security reasons. That section contains the names of several intelligence agents referred to elsewhere in the report. TIME has learned that it also contains further details about Sharon's visit to the Gemayel family on the day after Bashir Gemayel's assassination. 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 the details of the conversation are not known."

Sharon admits that he met with the Gemayels but denies that the topic of revenge came up. He has argued, publicly and in court, that TIME's paragraph in effect accused him of encouraging the massacre. TIME contends that the disputed passage does not accuse Sharon of fomenting the slaughter. The magazine further maintains that the paragraph's only meaning is that the subject of revenge came up in a talk between Sharon and the Phalangists and that it implies that the former Defense Minister must have been aware of the dangers of sending the militiamen into the camps without supervision by Israeli forces.

David Halevy, a TIME correspondent in Jerusalem, has testified that he relied on four sources for his reporting that revenge was discussed at Sharon's meeting with the Gemayels in the Lebanese town of Bikfaya. These sources included an Israeli intelligence officer with access to notes taken at the meeting who told Halevy that Bashir's father had declared to Sharon that his son's death should be avenged. Halevy also said that another source, an Israeli general, informed him that Sharon told Phalangist leaders that same day that Bashir's murder was a "Palestinian-Syrian conspiracy" and that the act "should not be left without retaliation, reprisal or reaction of some kind." Halevy explained that he deduced from talks with Israeli officials, and from the report, that this information was in Appendix B. From these sources he knew that the notetakers at Sharon's meetings had been listed in the appendix and that they had been called to testify in closed session before the commission.

TIME's sources for what was said at those meetings remain confidential, but as recently as two weeks ago they confirmed once again to TIME that revenge had been discussed. TIME pointed out that the question of whether the testimony is located in Appendix B or elsewhere is relatively immaterial and in no way undercuts the magazine's contention that revenge came up during the meetings and is irrelevant to the issue of whether what TIME reported was libelous.

The events of last week climaxed nine months of often frustrating negotiations between Sofaer and the Israeli government to gain access to classified materials. Under the revised terms proposed by Sofaer in early November, two Israeli lawyers, one representing Time Inc. and the other Sharon, would review the documents alone with Kahan. Kahan, in consultation with the two lawyers, would then answer whether the documents "contain any evidence or suggestion" that Sharon discussed revenge with the Phalangists or "knew in advance that the Phalangists would massacre civilians" in the camps. Time's attorneys said that the magazine would print an appropriate correction if the examination of the documents showed that the information in the disputed paragraph was incorrect.

But Israeli officials refused to grant access to all the documents requested by Sofaer. The Israelis also demanded that the attorneys for both sides promise to keep secret the contents of those documents that were reviewed.

The meeting with Kahan took place in a conference room in the offices of Prime Minister Shimon Peres in Jerusalem on Sunday, Jan. 6. Time Inc. was represented by Haim Zadok, a former Israeli Minister of Justice; Sharon was represented by Dov Weisglass, a Tel Aviv lawyer. At the outset of the examination, Zadok learned that he would not be permitted to see testimony gathered by the commission's investigators, who had the power to subpoena witnesses and require them to testify.

Zadok immediately protested and subsequently wrote a letter expressing his objections to that restriction. "This was no fishing expedition," explained Harry Johnston, general counsel for the Time Inc. Magazine Group. "At that late stage, Time was looking for specific testimony that it thought would help its case."

Meanwhile, Time Inc. General Counsel William Guttman, who had flown to Israel to await the outcome of the Kahan meeting, was informed that he too must sign a secrecy agreement. Only after Guttman did so was he told that the Israeli Attorney General had decided to make public Kahan's answers, which concluded that Appendix B and other documents examined did not contain "any evidence or suggestion" that Sharon had discussed revenge with the Phalangists. The government, however, refused to release Zadok's letter of reservations. As far as Time Inc. was concerned, this was a clear breach of its understanding that the findings would be transmitted in confidence to Judge Sofaer.

Zadok's letter continued to be embroiled in disputes last week. On Wednesday, Judge Sofaer asked reporters and spectators to leave the courtroom while he read Zadok's reservations to the jury. Attorneys representing various news organizations appeared before the Second Circuit Court of Appeals the next day to challenge Sofaer's decision to close the courtroom. "Does Judge Sofaer have the power to make an agreement with a foreign country that bars the American public from an American trial?" asked Floyd Abrams, a well-known First Amendment lawyer. The appeals court decided to reserve judgment on the case.

Before Time Attorney Barr began his summation on Thursday, Sofaer narrowed the range of possible interpretations of the paragraph that would support Sharon's suit. He told the jurors that they could find that TIME had defamed Sharon only if they interpreted the contested paragraph to say that Sharon "consciously intended" or "actively encouraged" the Phalangists to kill civilians in the camps.

In his five-hour summation to the jury on Thursday, Barr told the jurors to reread the disputed paragraph and ask themselves if it fit the judge's test * of defamation. "Look at the words again," Barr said. "Do the words say that? Do the words mean that to you?" If not, he said, "that's it. The case is over." Barr reminded the jurors of the testimony of TIME Senior Writer William E. Smith, who wrote the cover story. If Smith had meant to convey that Sharon consciously intended or encouraged a massacre, Barr argued, "he would have said so in a direct and clear way."

Barr then reviewed the Kahan report in detail, citing passages that buttressed TIME's contention that Sharon had discussed revenge with the Phalangists. The Kahan report disputed key points of Sharon's testimony before the commission, Barr said. Sharon, for example, contended that Chief of Staff Rafael Eitan ordered the Phalangists into the camps; the report concluded that Sharon also made the decision. Contrary to the impression Sharon tried to create during the trial, the former Defense Minister had been warned of the consequences of his decision even as the Phalangists were preparing to enter the camps. In one instance, cited by the Kahan commission, Eitan told his superior that the Phalangists "are seething with the feeling of revenge and there might be rivers of blood."

"If you had decided to send this bunch of bloodthirsty cutthroats into those camps," said Barr to the jurors, "alarm bells would be going off in your heads. You would be saying, 'God, keep those people out of there. We can't let those people go into those camps.' Yet he (Sharon) sat on the witness stand and told you, 'I didn't know it was going to happen. I had no idea, never in my wildest dreams.' "

Barr reminded the jurors that Sharon's lawyers must prove "actual malice," that is, that TIME published the paragraph knowing it to be false, or with reckless disregard for whether it was false. He insisted that staff members had worked on the story in good faith. Halevy had several sources for his account of Sharon's talks with the Phalangists, the lawyer argued. After reading the Kahan report, "he believed those sources were correct." As for the other TIME journalists who relied on Halevy's reporting, Barr said, they had read the Kahan report and trusted Halevy completely.

"The plaintiff's case is too much," Barr concluded. "It reaches out beyond sense and reason." Sharon brought this lawsuit, Barr charged, because "he had to fight somebody. He couldn't sue the commission. It already had gone out of business. He picked out this one paragraph and said, 'This is the way to attack the Kahan commission . . . and that's the way I'm going to wash my hands clean of this terrible, terrible mess.' "

During his six-hour summation, Gould charged that TIME was engaged in a "feverish pursuit of scoops" in order to "sell magazines." He called TIME journalists "smooth-faced Boy Scouts" and said that witnesses from the magazine indulged in "self-adulation" when they praised David Halevy's reporting career. As for Halevy himself, an Israeli citizen, Gould derided his war record and called him a "Humphrey Bogart playing Ernie Pyle." He contended that Halevy fabricated the story and that his colleagues at TIME printed it against their better judgment.

Gould depicted Sharon as a "great and good man . . . an asset too precious to be defiled by lies and half-truths." He told the jury: "Your verdict will do much to determine whether he'll go down in history as a great man, a great soldier, a savior of his country or as a kind of monster, another Herod." Sharon's approval of the decision to send the Phalangists into the camps, he said, was made while "bullets were flying and guys were dying." Said Gould: "He's not making the kind of decisions you make as an editor up there in Rockefeller Center, with all the fancy furniture."

Though Gould acknowledged that this decision by Sharon was "a mistake," he added, "He is still paying the price for it. He knows it has left scars on the reputation of a great soldier." Sharon could not have been guilty of encouraging the massacre, Gould argued, because he knew records were being kept of the meetings. Said the plaintiff's attorney: "He may be fat, but he ain't crazy."

Sofaer was expected to deliver his charge to the jurors early this week. If they decide not only that the paragraph defames Sharon but that TIME published the passage knowing it was false or with reckless disregard of the truth, then they will return to the courtroom to hear evidence on Sharon's reputation. The jury would then have to determine whether Sharon was harmed by publication of the paragraph and, if so, what damages should be awarded.