Resting Their Cases

By James Kelly

Testimony ends in Ariel Sharon's libel suit against Time Inc.

After six weeks and 13 witnesses, lawyers for Israel's former Defense Minister Ariel Sharon last week rested their $50 million libel case against Time Inc. in a Manhattan federal courtroom. Paul Saunders, a lawyer for the firm of Cravath, Swaine & Moore, which is defending Time Inc., then stepped to the podium. Calling no defense witnesses, he announced, "Your Honor, we rest." Both sides will offer closing arguments when court reconvenes Jan. 2.

"When you have the opportunity to quit while you are ahead in litigation, you take it," explained Saunders. Milton Gould, Sharon's chief attorney, said he was "astonished," and retorted: "You quit when you don't know what to do." But in presenting their case, Sharon's lawyers, from the firm of Shea & Gould, had called eight Time Inc. employees as "hostile witnesses," a tactic that allowed them the first opportunity to examine the journalists. Time Inc.'s attorneys questioned those witnesses fully during the plaintiffs presentation. Thus, the Cravath lawyers believed that the best witnesses TIME could have presented had already been heard and that the jury had all the information needed to judge the case.

Sharon contends that TIME libeled him in its Feb. 21, 1983, cover story about an official Israeli report on the 1982 massacre of some 700 Arabs, mainly Palestinians, in the Sabra and Shatila refugee camps in West Beirut. The murders, which began two days after the assassination of Lebanese President-elect Bashir Gemayel, were carried out by Christian Phalangist militiamen. The report of a commission headed by Israel's Supreme Court President, Yitzhak Kahan, found that Sharon had "disregarded the danger of acts of vengeance." The commission concluded that Sharon had ordered the militiamen into the camps and bore "indirect responsibility" for what had happened; Sharon resigned his defense post after the findings were released.

In a paragraph halfway through its eight-page story, TIME said that a classified Appendix B to the report contained details of a sympathy call Sharon had made on the Gemayel family on Sept. 15, 1982, the day after Bashir's death. According to the magazine, the Defense Minister "reportedly discussed with the Gemayels the need for the Phalangists to take revenge." Sharon acknowledges that he met with the Gemayels but denies that the subject of revenge came up. He contends, moreover, that TIME'S account implies that he encouraged or instigated the massacre. Time Inc. maintains that the contested paragraph in no way accuses Sharon of fomenting the tragedy.

Throughout the trial, Sharon's lawyers have focused on David Halevy, a TIME correspondent in Jerusalem. Halevy has testified that he inferred what was in Appendix B from talks with Israeli officials, from Sharon's public testimony before the Kahan commission and from the report itself. As to the substance of what was said at Sharon's meeting with the Gemayels, Halevy testified that he relied on four sources, including an Israeli intelligence officer who had access to notes taken at one of the meetings. This source, according to Halevy, said that Bashir's father, at the Sept. 15 meeting with Sharon, declared that his son's death should be avenged. The plaintiffs lawyers contend that Halevy fabricated the story.

Richard Duncan, the magazine's chief of correspondents, defended Halevy's reporting. He acknowledged under questioning by Gould that aides to then Prime Minister Menachem Begin had complained about a 1979 TIME story, reported by Halevy, concerning Begin's poor health. When Halevy's confidential sources would not confirm the details of his report, TIME subsequently published a denial from a Begin aide. The magazine noted that it "was apparently misled" about a Begin medical exam and "regrets the error." Duncan stressed that if he had thought Halevy himself had misled TIME, he would have fired him. Duncan did put Halevy on one-year probation, but in court he also praised Halevy for his "good, expert and reliable" reporting on numerous major stories.

TIME Managing Editor Ray Cave firmly expressed his confidence in both Halevy and the disputed paragraph about Sharon. "I believe [the story] then and now," said Cave. Asked by Gould if he thought the Kahan commission had any reason to believe Sharon had anticipated the massacre, Cave said no. "I think if he had, it would have horrified him and he would have prevented it on the spot." Henry Anatole Grunwald, editor-in-chief of Time Inc., also stood firmly behind the article, stating that he saw "no particular contradiction between the paragraph and the Kahan commission report." As for Halevy, Grunwald said he considered him "one of the best reporters I have ever known."

When TIME rested its case, Gould protested that he still wanted to call rebuttal witnesses, including Sharon once again. "Mr. Gould has no right to put in a rebuttal case since there is nothing to rebut," Saunders told Judge Abraham Sofaer.

Because Sharon is a public figure, his lawyers must prove not only that the TIME story defamed him but also that the magazine published the statements knowing they were false or having serious doubts as to their truth, a contention TIME has strenuously denied. If the jury finds that there was such "actual malice," the two sides will present evidence concerning the reputation of Sharon, who is now Israel's Minister of Industry and Trade. The jurors will then have to determine whether Sharon was damaged by the TIME story and, if so, how much money he should be awarded.

Shortly before the holiday recess, Sofaer denied a series of motions by the Time Inc. attorneys to dismiss the case outright. But he reserved judgment on whether the magazine had been denied due process by the Israeli government's refusal to allow Time Inc.'s lawyers to see key documents, including the secret appendix, and question several Israeli officials. Sofaer has informed the Israeli government that the secret papers can be accepted as evidence only if attorneys from both sides are allowed direct access to them. In a statement attached to Sofaer's letter, Time Inc. attorneys said that the magazine would print an appropriate correction if their examination of all the relevant documents showed that the information in the disputed paragraph was not in the appendix or related materials. Time Inc., however, would continue to defend the substance of the story--that is, that Sharon discussed revenge with the Gemayels--as true. The Israeli Cabinet is expected to consider Sofaer's request next week.

--By James Kelly. Reported by Kenneth W. Banta/New York

With reporting by Kenneth W. Banta