Imprint on Sharon, Time Seen as Case Goes to Jury

The jury is expected to begin deliberations today in the $50-million libel lawsuit brought by former Israeli Defense Minister Ariel Sharon against Time magazine.

Whatever the six jurors decide, the two-month-long trial in U.S. District Court here already may have made a lasting imprint on the futures of both Sharon and Time.

Much of Sharon’s testimony at the trial’s outset involved his defense of his conduct as architect of Israel’s 1982 invasion of Lebanon. And, after Time conceded last week that its disputed story was partially wrong, Sharon, a former general who has further political ambitions in Israel, claimed a political victory for himself.

Sharon’s attorneys also have endeavored to show that Time is untrustworthy and that its journalistic methods, especially its reliance on confidential sources in reporting the disputed story, are sloppy. That has raised questions about what scars the trial might leave on the magazine, on public confidence in the press generally and on the use of anonymous sources in particular.

And, as a sidelight, the case may lead to a precedent in constitutional law as well. U.S. District Judge Abraham D. Sofaer closed a portion of the trial--an unusual step in a libel suit--because of an agreement he made with the Israeli government to gain access to classified Israeli documents. Press organizations are now appealing that closure.

The trial focuses on one paragraph in a 1983 Time cover story, which Sharon claims falsely accused him of knowingly permitting or encouraging the massacre of more than 700 Palestinian refugees by Lebanese Christian militia in West Beirut camps in September, 1982. The massacre followed the assassination of Lebanese leader Bashir Gemayel.

In the paragraph, Time reported that Sharon “discussed . . . the need for revenge” with Lebanese leaders the day before the massacre, and that the discussion was cited in a secret Appendix B of the Israeli government’s Kahan Commission report on the massacre.

How the jury interprets the disputed paragraph will be the pivotal element in the case. If the jury agrees with Time that the paragraph does not mean what Sharon alleges it means, his case falls. If Sharon’s interpretation prevails, the jury then must determine whether Time knew that its story was false or published it with reckless disregard for whether it was true or false.

Sharon, who publicly has stated he wants to be Israeli prime minister, himself raised the political implications of the suit during his seven days of testimony. He testified that Time’s story was “blood libel” against all Israel, which he in effect was representing. Sharon’s testimony attracted criticism at home that he had no authorization to take on such a role.

Political Gains Expected Nonetheless, Israeli reporters covering the trial said they generally believe that Sharon does stand to gain much politically from the suit. He may already have done so, because some Israelis regard as a patriotic act his fight to vindicate the Kahan Commission finding that the Israeli authorities were not directly responsible for the massacre. The lawsuit also has cleared up suspicions that the commission may have concealed potentially incriminating evidence in the secret appendix.

Earlier last week, Time conceded in court that it was wrong in contending that what it had reported was contained in the appendix. Afterward, Sharon on the courthouse steps claimed victory over the “blood libel” against his people.

Sharon’s attorneys have endeavored to impugn the integrity of Time, and in particular--in the words of Sharon’s attorney--”examine the soul” of the reporter chiefly responsible for the paragraph, Time Jerusalem correspondent David Halevy.

The crux of Sharon’s legal strategy has consisted of trying to show that Time staff members--whom Sharon attorney Milton Gould sarcastically called “smooth-faced Boy Scouts”--are untrustworthy, sloppy and reckless. In summations, for instance, Gould described Halevy as “an irresponsible liar,” and Harry Kelly, his bureau chief in Jerusalem, as “bumbling and stupid.”

Sharon’s attorneys also tried hard to depict a series of actions by Time as reckless.

They got Halevy, for instance, to admit under oath that he was never actually told that the crucial meeting between Sharon and Lebanese leaders was detailed in Appendix B. Instead, Halevy said he had “inferred” this after hearing a description of what sort of material Appendix B contained.

Several Inconsistencies Noted

Sharon’s attorneys also noted several internal inconsistencies in Halevy’s testimony as well as discrepancies between Halevy’s testimony and Kelly’s about who Halevy’s sources were and what they had told him about the disputed meeting.

It was also disclosed that William Smith, a Time writer in New York, changed key words in the dispatches from Israel while writing the final story.

Kelly had written that “we understand (that the meeting is cited in Appendix B),” but Smith changed that to “Time has learned.” Halevy had reported that Sharon “gave them (Lebanese leaders) the feeling . . . that he understood their need to take revenge,” but that was rewritten to read that Sharon “reportedly discussed with . . . (Lebanese leaders) their need to take revenge.”

If Smith had made the changes innocently on his own, there might have been no malice and thus no basis for a lawsuit, Sofaer has ruled. Kelly and Halevy, however, later approved them when a copy of the final story was transmitted to Jerusalem, meaning that their actions could be libelous if the jury finds the paragraph defamatory, the judge said.

Issue of Malice Raised

Sharon’s attorneys also were able to raise questions about whether Halevy might bear Sharon malice because the Time correspondent had political connections to Sharon’s rivals. Halevy even testified that he considered Sharon’s political resurgence since his forced resignation as defense minister--he is now minister of industry and trade--as a sign “that something is rotten in the state of Israel.”

And the testimony found holes in Time’s famous news-gathering system. Kelly did not check the story with Sharon because he did not have the general’s home telephone number; the fact-checking department in New York checks only when there is reason to believe something is in error; writers in New York generally do not talk to reporters in the field.

All this has prompted speculation in the news media about whether Time’s determination to press on with the trial rather than try to settle the case might harm public confidence in the press.

It also has compelled Time repeatedly to defend its journalistic practices in court, and to worry outside the courtroom that the trial might inhibit important journalistic procedures, particularly the use of confidential sources.

Time, which does not have the burden of proof in the case, “astonished” its opponents, in Gould’s words, by declining to present a formal case, resting instead without calling a single witness.

Time’s lawyers said that most of the witnesses they had intended to call were put on the stand by Sharon’s attorneys, and that they had made their case, in effect, during their cross-examination.

The magazine’s tactic also thwarted Gould’s plan to return Sharon to the stand for rebuttal.

In Time’s closing arguments, attorney Thomas Barr tried to cast suspicion over Sharon’s denials of the Time story. He emphasized that Sharon’s testimony differed with the conclusions of the Kahan Commission that had investigated the massacre.

Kahan’s testimony was secured after months of negotiating between Sofaer and the Israeli government. Sharon testified that “never in his wildest dreams” did he imagine that the Lebanese militia would kill innocent Palestinian civilians, but the Kahan Commission rejected those claims and concluded that anyone in Sharon’s position at the very least should have realized that the potential for revenge existed.

Barr also argued that the paragraph at issue has a meaning less condemnatory than Sharon alleges. Time witnesses suggested that the paragraph meant simply that the subject of revenge came up during Sharon’s meeting with Lebanese leaders but did not mean that he actively encouraged the massacre.

Sharon’s attorneys hope the jury’s verdict will be swayed by Time’s concession that the information it reported is not in Appendix B.

Offers Partial Retraction

The day that Time made that concession, The Times disclosed that the magazine had offered Sharon a partial retraction at the urging of Sofaer. The retraction was to have been, in Time’s words, “the foundation of a settlement.”

Sharon’s lawyers, however, immediately rejected the offer because they considered the retraction less complete than one Time had offered in early December, a source said. The source said the earlier settlement offer also had included paying Sharon’s legal fees.

A subplot to the trial also emerged last week. Time conceded that it was wrong about Appendix B after the court was read written testimony from former Israeli Supreme Court President Yitzhak Kahan, chairman of the commission, stating that the appendix did not contain the information Time alleged.

Months of Negotiation

Kahan’s testimony was secured after months of negotiating between Sofaer and the Israeli government. All parties had agreed that Kahan would review the appendix and related materials in the presence of attorneys for both Sharon and Time.

As part of their agreement, Sofaer promised to keep secret the details of any reservations Time’s attorney in Israel might have about Kahan’s testimony, presumably because of concern that state secrets might be revealed. After hearing Time’s objections, Sofaer said that they did not breach Israeli security but that he felt bound to honor the agreement anyway. Thus, only the fact that there were reservations could be made public.

It was because of this agreement, Sofaer said, that he excluded the public and the press from the courtroom when Time’s reservations were read to the jury. Several news organizations protested the closure, and the trial was delayed while they pleaded their case to the U.S. 2nd Circuit Court of Appeals.

Attorney Takes Issue

New York attorney Floyd Abrams, a First Amendment specialist representing seven news organizations, said he believes that Sofaer had no legal right to close the courtroom simply because he had promised a foreign government that he would do so.

Talking to the press outside the courthouse, Abrams said he believes that it is important for U.S. courts to clarify under what circumstances international agreements might take precedence over the American people’s constitutional right to public trials.

The appeals court is still reviewing the case.

Sofaer is expected to instruct the jury on the legal issues this morning, and then its deliberations will begin. The verdict must be unanimous.