From: bdm@cs.anu.edu.au (Brendan McKay)
Newsgroups: talk.politics.mideast
Subject: Re: Kahan Commission
Date: 20 Nov 1992 08:25:41 GMT
Organization: Australian National University
Distribution: world
Reply-To: bdm@cs.anu.edu.au
NNTP-Posting-Host: 150.203.23.70

In article 15501@ennews.eas.asu.edu, makowsky@enuxhb.eas.asu.edu (David Makowsky) writes:
>In article <1ech2tINNjhu@manuel.anu.edu.au> bdm@cs.anu.edu.au writes:

># In article 23450@ennews.eas.asu.edu, makowsky@enuxhb.eas.asu.edu (David Makowsky) writes:

># >In article <1eaapkINN21e@manuel.anu.edu.au> bdm@cs.anu.edu.au writes:

># ># In article <1992Nov16.141252.16632@ennews.eas.asu.edu> David Makowsky writes:

># ># >In article <1e74s0INNhdn@manuel.anu.edu.au> bdm@cs.anu.edu.au writes:

># ># ># Sharon only had to establish that Time could not prove what they 
># ># ># claimed about him.  As to what was actually proven in court, the 
># ># ># important evidence was heard in secret so how do you know what it was?

I retract this in favour of what's below.

># ># >        It seems Brendan knows as little about the American legal system
># ># >as he does about the Middle East.  If evidence in a civil case like
># ># >this (in front of a jury) needed to be kept secret in would not have
># ># >been heard at all.  And if Time actually needed the evidence, the
># ># >judge would have directed a verdict in favor of Time.

># ># I looked up the details.  The case hinged on something that Time claimed
># ># was in the secret Appendix B of the Kahan report.  Israel refused to 
># ># provide the Appendix [reasonable] whereas Time said it was essential to 
># ># it's case [true].  A compromise was reached where Sharon's and Time's 
># ># Israeli lawyers could read the Appendix in the presence of Justice Kahan.  
># ># However, they were forbidden to disclose the contents to anyone, 
># ># including their US legal counterparts or the US court.  In addition, 
># ># three questions were put to Kahan.  Each question had the form "Does 
># ># the Appendix state that ...?"  Kahan's answers were then conveyed 
># ># to the court.
 
># >	No evidence was heard in secrect, irrelgardless of what you think.

># I just described what happenned; take it or disprove it.

>	It is disproven on its face.  No evidence would be "heard in
>secret" in a jury trial such as this.  Those are the rules here.
>There are some rare cases where some evidence is heard in secret, but
>then just a judge is present and no jury.  This involves American
>security, and not that of a foreign country anyway.

No evidence was heard in secret (my wording was incorrect).  The answers
given by Justice Kahan to the questions put to him (as above) were
accepted as testimony before the court by agreement of both sides.

># >                               Time could have argued that everything
># >be presented and if the judge felt that their defense depended on it
># >the judge would have ordered the report be used as evidence (no
># >evidence was kept secret because the secret part of the report was not
># >evidence).
 
># Of course it was evidence.  If it contained what Time alleged that 
># would be strong circumstantial evidence that Time knew what it 
># claimed to know.

>	Brendan, there are only TWO choices.  Either it was evidence and
>therefor not heard in secret, or it was not evidence.  Like I said
>above, those are the rules here.

Time argued (before the case went to the jury) that the contents of
Appendix B and other classified Israeli documents were essential to
its case and that therefore their nonavailability were grounds for
dismissal or summary judgement.  The court ruled against this argument.
The judgement grounds occupy about 50 pages in the trial report and
are very complicated, but roughly (1) Time itself had said that it had 
evidence for what the Appendix contained and so could present that evidence 
if it so chose, (2) the onus for proof of "falsity and actual malice" 
lay with Sharon, not Time, so only Sharon could reasonably claim the 
document was "essential".

># ># The result was that the jury found that the Appendix did not contain
># ># what Time claimed it did.  In reply to Mark's insistence that Time
># ># KNEW it was lying about the Appendix, it should be noted that the
># ># jury found that it did not.  However, the jury did accuse Time of
># ># negligence and carelessness.

># >	Actually, Time was found not to have been negligent.  If they were
># >found to have been negligent, Sharon would have won since the jury
># >found the story to be false.  In an American court, for a public
># >figure 

># It is not clear that Sharon is a "public figure" in the US.
># (I don't know anything about this point.)

Sharon was considered a public figure.

># >       to win a libel case, not only must the story prove to be false
># >but so must either negligence or malice.  A "non public" figure only
># >needs to prove the story false.

># I said "the jury accused" not "the court ruled".  The judge did not ask
># the jury to determine negligence but to determine whether Time acted
># with knowledge of the falsity of their story.  The accusation of
># negligence was made by the jury in an extra statement they were not
># asked for.

>	The jury did not "accuse" anyone.  The jury said (which here is
>the same as saying the court ruled unless the judge overturns the jury)
>that what Time printed was false.  They were asked by the judge to
>determine whether or not it was true.  They were also asked to
>determine if Time knew it was false or acted in "reckless disregard
>for the truth" (which is what I meant above by negligence).  This was
>the only point (I think there were four or five) on which Sharon did
>not prevail.  Unfortunately, since Sharon was a public figure, losing
>that one point, even though he won all the others, that was all it
>took for Time to prevail.

You are correct, but so was I.  The jury determined that Time did not
act with "knowledge of falsity or out of reckless disregard for the
truth".  However, the jury foreman read out an additional statement
saying that the jury considered that "certain Time employees, 
particularly correspondent David Halevy, acted negligently and
carelessly in reporting and verifying the information which untimately
found its way into the published paragraph."   

># Here's my theory; I have no evidence so don't bother asking for any.  
># Time's "highly placed source" told Time's reporter (Halevy) that the 
># information was in the secret documents of the Kahan commission.
># Halevy just _assumed_ that the secret Appendix was implied.  In fact
># there are thousands of pages of testimony and inquiry minutes that
># are classified.  Only a tiny fraction of it ever got into the report,
># secret Appendix included.  We can't expect to see it for at least 
># 22 years, and more likely 50 years or never.  Maybe it's there.

>	Possibly.

Actually, Time put this forward as a possibility before the trial and the
judge ruled it would be sufficient to defeat the "falsity" requirement,
if they could prove it.  Halevy says that his secret witness testified 
before the Kahan Commission which gives a little weight to the possibility.

I'm not interested in continuing this thread.

>makowsky@enuxhb.eas.asu.edu

Brendan.




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