From: makowsky@enuxhb.eas.asu.edu (David Makowsky)
Subject: Re: Kahan Commission
Reply-To: makowsky@enuxhb.eas.asu.edu (David Makowsky)
Organization: Arizona State University, Tempe AZ
Date: Wed, 18 Nov 1992 05:16:56 GMT

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?
 
# ># >        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.

# >Time did agree to something, but probably only because they knew what
# >the results were going to be.  
 
# Since that part of the proceedings went against Time, they would 
# have tried to avoid it if they knew the outcome in advance.

	They could not avoid it, since their whole case hinged on it.
They sort of had to try to divert attention from it.  But they had to
agree to confront it somehow.

# >                               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.

# >  If the secret report would not have been would then not
# >have been available for use as evidence (which would make it part of
# >the pulic record) the judge would have immediatly stoped the trial and
# >ruled in favor of Time without the case even getting to the Jury.
 
# A legal friend is looking up the official trial report.  If it is
# significantly different from what I described, I will post on it.
 
	Quite frankly, I do not know why.  If you are correct, and it was
done secretly, there will be nothing on it in the trial report (unless
your friend can get hold of some secret copy that no one else knows
about).

# ># 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.)

	I am not a legal scholar, but a public figure is generally
considered someone who is well known.  It does not have to be a
politician (for instance, athletes and movie stars are legally
considered public figures).  While I do not necessarily agree with
this philosophy, the US Supreme court ruled in the SUllivan case (I
think he sued the New York Times during the 1960's for libel but I am
not sure) that the press needed some leway in going after public
figures in order to make sure that they would not be afraid to print a
stary that might not be true.

# >       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.

# >	If anyone does not think Time was simply making up things to go
# >after Sharon, irrespective of what the Jury thought, one needs only to
# >look at the "apology" Time printed after it was discovered nothing
# >damning appeared in the secret appendix.

# I did.  Time admitted that the information was not in the secret 
# appendix but said that it stood by the information.  I don't see
# how that proves any more than stubbornness.

	How could they stand by the information?  You should know that
immediatly after Time issued this statement (which was still during
the trial) Sharon's lawyer said he would use it as evidence during the
damages phase if Sharon won.

# 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.
--
	There are three types of people in the world.  Those that are good
at math and those that are not.

makowsky@enuxhb.eas.asu.edu
Newsgroups: talk.politics.mideast