The opinion of the court was delivered by: SOFAER
Plaintiff Ariel Sharon was the Minister of Defense of the State of Israel from August 1981 until February 11, 1983. During his tenure, Israel embarked upon "Operation Peace for Galilee," an invasion of Lebanon intended to eliminate strongholds from which terrorists of the Palestine Liberation Organization ("PLO") had been launching attacks on Israel. During Israel's occupation of West Beirut, and by prior arrangement with the Israel Defense Forces ("IDF"), members of the Christian Phalangist militia entered two Palestinian refugee camps, Sabra and Shatilla. From September 16 to September 18, 1982, the Phalangists killed hundreds of Palestinian civilians, many of them women and children. As a result of this tragic event, Israel established a Commission of Inquiry Into the Events at the Refugee Camps in Beirut ("the Kahan Commission"). The Commission was charged with determining who was responsible for the killings. It issued its Final Report ("the Report") on February 7, 1983.
Defendant Time, Inc., publishes Time Magazine. Time's February 21, 1983, issue, which appeared on newsstands during the week of February 14, contained an article entitled "The Verdict Is Guilty: An Israeli commission apportions the blame for the Beirut massacre" ("the Article") (Def. Exh. 12).
The article contained a discussion of the Kahan Commission's findings and recommendations. Time described the Report as a "stinging indictment" of Minister Sharon and extensively quoted the Report's findings that failure to consider the possibility of the murder of innocent Palestinians "constitute[s] the nonfulfillment of a duty with which the Defense Minister was charged," and that his behavior renders him indirectly responsible for the massacre. Report at 71;
Article at 29. Time also reported the Commission's recommendation that Sharon "should draw the appropriate personal conclusions" and resign his office. Report at 105; Article at 29.
Sharon sued Time for libel. He does not base his suit on the overall thrust of Time's critical article, most of which is absolutely protected either as opinion or as the fair report of a judicial proceeding. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); N.Y. Civ. Rights L. § 74 (McKinney 1976). Instead, Sharon bases his case on one paragraph of the article, which states:
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 Israei 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.
Article at 29. Sharon claims that this paragraph is false, both because he never discussed the need for revenge with the Gemayels and because the Commission Report contains no details of such a discussion. He claims that this paragaraph is defamatory both because it suggests that he instigated, encouraged, or condoned the massacres at Sabra and Shatilla, and because it suggests that the Commission had secret evidence or found secretly that he had lied when he testified that he had not known in advance that a massacre would occur.
Time moved to dismiss plaintiff's complaint on the grounds that the paragaraph was not capable of a defamatory meaning, that plaintiff was libel proof, and that plaintiff had failed to allege special damages. That motion was denied in an opinion concluding that the statement was capable of a variety of defamatory meanings, that the commission's strong criticism of Sharon had not rendered him libel proof, and that, because the statement was libelous per se, plaintiff was not required to allege special damages under New York law. Sharon v. Time, Inc., 575 F. Supp. 1162, 1165-73 (S.D.N.Y. 1983) (Sharon I). Following that opinion, both sides engaged in extensive discovery, during the course of which a decision was issued setting certain limits on the scope of discovery and refusing to bifurcate the trial. Sharon v. Time, Inc., No. 83 Civ. 4660 (S.D.N.Y. Sept. 5, 1984) (Sharon II).
Defendant has now moved for summary judgment pursuant to Fed. R. Civ. P. 56 or, in the alternative, for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Defendant assumes for the purposes of its motion that "the paragraph challenged by plaintiff was totally false." Memorandum in Support of Time Incorporated's Motion To Dismiss and for Summary Judgment at 5 ("Defendant's Memorandum"). It raises five other arguments: (1) the "act of state" doctrine precludes this court from exercising judgment over this case; (2) the First Amendment provides absolute immunity for criticism of the official acts of high governmental officials such as Sharon; (3) Time's inability to obtain necessary information from the State of Israel and from plaintiff has rendered it incapable of defending itself consistently with the requirement of due process; (4) as a matter of law, a jury could not conclude that plaintiff has proved with convincing clarity that defendant acted with actual malice; and (5) because plaintiff as a matter of law has no compensable damages, he cannot maintain this suit merely to attempt to recover punitive damages. For the reasons stated below, defendant's motion is denied.
I. The Act of State Doctrine and Justiciability
Time argues that the federal courts may not adjudicate this case because the litigation will require the jury to render judgment as to the validity of numerous acts of the States of Israel and Lebanon. Time claims that proof concerning these "acts of state" is unavoidable, and that litigation concerning them is inappropriate due to the absence of judicial standards and the potentially adverse impact of the trial and the jury's findings on the foreign relations of the United States. Time's proposed acts of state, however, are not the types of acts that provide a proper basis for applying the act of state doctrine. Time's arguments nevertheless raise a substantial issue of nonjusticiability; this litigation involves questions that are difficult to litigate efficiently, and disclosures and findings may result that could embarrass the United States or other nations. Assuming that the federal courts can refuse to decide cases as nonjusticiable, however, a balancing of the relevant considerations fails to justify dismissal here.
A. The Act of State Doctrine
The act of state doctrine provides that a United States court "will refrain from examining the validity of an act of a foreign state by which that state has exercised its jurisdiction to give effect to its public interests." Restatement (Second) of Foreign Relations Law § 41 (1962). The doctrine is limited to laws, decrees, decisions, seizures, and other officially authorized "public acts." The acts to which the doctrine has been applied have been official attempts to implement public policy, and a fairly stringent degree of formality may be required in proving such an act, at least where it is alleged to have occurred with respect to a subject not normally controlled by public acts. Thus, in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 48 L. Ed. 2d 301, 96 S. Ct. 1854 (1976), the Supreme Court rejected the view that an act of state was established by a representation of counsel that an ordinary commercial obligation had been officially repudiated. The court held that Cuba's mere refusal to pay the debt did not constitute a repudiation sufficient to trigger the act of state doctrine:
No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers.
Id. at 695; see The Supreme Court -- 1975 Term, 90 Harv. L. Rev. 265, 271-72 (1976).
In this case, Time almost indiscriminately states that "a trial of this action will require the jury to render judgment as to numerous acts of the States of Israel and Lebanon," and lists historical events including "the meetings and discussions amoung Bashir Gemayel and representatives of Israel," "internal debates within the Israeli Cabinet," "the decision to send the Phalangists into the refugee camps," and the proceedings and findings of the Israeli Commission which investigated the massacres. Defendant's Memorandum at 61-62. In substance, Time contends: "Sharon's Acts and the Kahn Commission Proceedings Were Acts of the State of Israel." Id. at 72. Furthermore, Time seems to argue that this very suit is an act of state since it was brought by a former and present minister in Israel's government, allegedly with that government's approval.
Neither Sharon's alleged acts, nor the findings of the Commission, nor Israel's alleged participation in this suit constitutes an act of state within the meaning of the doctrine. With respect to the alleged actions of General Sharon by which Time claims he approved or condoned the massacre, Time does not claim that General Sharon was authorized by the State of Israel to perform such acts; to the contrary, Time has alleged throughout the litigation that Sharon went beyond his authority in the campaign in Lebanon and intentionally misled Prime Minister Begin and the Cabinet into expanding the war. Although actions by military officers are often considered acts of state, see Underhill v. Hernandez, 168 U.S. 250, 42 L. Ed. 456, 18 S. Ct. 83 (1897), they are acts of state only because they are officially authorized. The actions of an official acting outside the scope of his authority as an agent of the state are simply not acts of state. In no sense are such acts designed to give effect to a State's public interests. See Restatement (Second) of Foreign Relations Law § 41 (1962). As the Second Circuit stated in Filartiga v. Pena-Irata, 630 F.2d 876,, 889 (2d Cir. 1980): "[W]e doubt whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly ratified by that nation's government, could properly be characterized as an act of state."
Time also claims that the Kahan Commission's findings that General Sharon did not approve or condone the massacre are acts of state. The findings or judgments of a court may constitute acts of state, where the court has been used by a state to exercise "its jurisdiction to give effect to its public interests." Restatement (Second) of Foreign Relations Law § 41, comment d, at 127. Here, the Commission was called upon by the Israeli government to perform an extraordinary function, including the making of recommendations with respect to the massacre. In utilizing the Commission process, however, the Government did not delegate its legislative authority; the Commission was enpowered only to issue its own findings and recommendations, not those of the State of Israel, and these findings and recommendations were not binding upon the Government. Defendants concede that "[a]s a matter of law the report of a commission of inquiry does not bind the Government unless adopted by it." Defendant's Supplemental Memorandum in the Act of State Doctrine at 4.When the Government adopted the Commission's recommendations, moreover, it did not thereby adopt the Commission's findings. Those findings remained findings only of the Commission. To the extent the recommendations became acts of state, it was only because the Government made them so through its own declarations. See Press Release by the Secretariat of the Government ("The government resolved today to accept the recommendations contained in the Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut.") (attached to letter from Stuart W. Gold, Esq., Nov. 6, 1984).
Time also seems to contend that Israel's alleged participation in this lawsuit constitutes an act of state. Time claims that the Israeli Government "has been supporting its champion -- whether appointed or voluntary -- by paying certain of his litigation expenses, and by actively blocking Time from access to important evidence regarding the events at issue." Defendant's Memorandum at 64; see Ma'ariv, Sept. 9, 1984 (Def. Exh. 13). The record fails to support Time's claim that Israel condones, let alone supports, General Sharon's suit. In any event, Time's suggestion of conspiracy between General Sharon and the Israel Government raises, if anything, an issue of due process, and as such is discussed below. Here, it suffices to note that even if Israel were an active litigant, as it sometimes is in this court, its litigation activities would not become acts of state in the sense intended by the doctrine.
The act of state doctrine is also inapplicable here because, even assuming that Sharon's alleged acts or the Commission's findings are acts of state, the issue in this case do not require the jury to pass on the validity of these acts. The proscription of the doctrine is limited to judicial determinations of the validity of acts of a foreign sovereign and to judicial redress of grievances predicated upon a finding of invalidity. Thus, in the classic American statements of the doctrine, Underhill v. Hernandez, 168 U.S. 250, 252, 42 L. Ed. 456, 18 S. Ct. 83 (1897), and Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 11 L. Ed. 2d 804, 84 S. Ct. 923 (1964), the Supreme Court applied the act of state doctrine for the limited purpose of avoiding determinations of the validity of official acts of foreign states and preventing invalidation of these acts. In both cases, the validity of an act or order of expropriation was directly in issue, and a finding for the defendant would have required invalidation of the Mexican or Cuban government's official act. See Associated Container Transportation (Australia) Ltd. v. United States, 705 F.2d 53, 61 (2d Cir. 1983); Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 860 (S.D.N.Y. 1983).
By contrast, the litigation here involves no challenge to the validity of any act of state. With respect to Sharon's alleged acts, no one is suggesting that these acts -- by which Time claims Sharon condoned the massacre of unarmed noncombatant civilians -- have validity in the sense that they cannot be attacked. All agree -- Israel, the United States, and the world community -- that such actions, if they occurred, would be illegal and abhorrent. The issue in this litigation is not whether such acts are valid, but whether they occurred.
In connection with the findings of the Kahan Commission, once again the issue is not the validity of the findings, but only whether certain findings were made. To resolve the issue in this litigation regarding the secret appendix, the jury need only make a factual determination as to whether Appendix B contains the alleged details of the condolence call reported in the Time article. The jury is not called upon to determine, and need not pass upon, the validity or even the propriety of the Commission's findings and report.
Moreover, a verdict or findings that support Time's version would have no more effect on the alleged acts of state than to grant Time a victory in this suit. Thus, a finding by the jury that General Sharon condoned the massacre would have no direct effect on any official declaration, decree, law, or act of the State of Israel. Similarly, a finding that Appendix B does contain the alleged details would have no direct effect on the Report itself, on the Commission, or on the Israeli Government. Such findings would simply establish that Time did not libel Sharon by its statements regarding Sharon's conduct and the contents of Appendix B. By contrast, had the validity of the expropriation decree in Sabbatino been successfully attacked, plaintiff could not have sued in American courts to collect the defendant's debt, 376 U.S. at 398; and in Underhill, had the validity of the defendant's conduct been successfully attacked, the plaintiff would have been entitled to an award of damages against a Venezuelan military commander, 168 U.S. at 250.
The remedy that Time seeks in this litigation -- dismissal -- is also inconsistent with the manner in which the act of state doctrine is traditionally implemented. The act-of-state doctrine is, in its origins and essence, a federal rule mandating a choice of law by which to judge the validity of the official actions of soverign states. In Ricaud v. American Metal Co. Ltd., 246 304 (1918), the Court applied the act of state doctrine in the context of a claim for the return of property seized by General Carranza in the Mexican Revolution. The language in Ricaud illuminates the nature of the act of state doctrine as a rule for the choice of governing law:
[The rule] does not deprive the courts of jurisdiction once acquired over a case. It requires only that, when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision.
Id. at 309. The doctrine's application did not result in the loss of jurisdiction, but in a rule of law by which the decision was to be made. The Court held only that title to the property seized by military levy from an American citizen "must be determined by the result of the action taken by the military authorities of Mexico. . . ." Id. Similarly, in Sabbatino, the federal courts were not deprived of jurisdiction over the claim. Rather, they were required to decide Cuba's claim -- and to enforce it if no other defense existed -- on the assumption that the expropriation of American owned property in Cuba was lawful. See 376 U.S. at 439.
Although the act of state doctrine is a rule governing choice of law and not justiciability, dismissal of a claim may be appropriate when an act of state is involved, if its assumed validity precludes the possibility of any relief for an opposing party. In International Association of Machinists and Aerospace Workers v. Organization of the Petroleum Exporting Countries, 649 F.2d 1354 (9th Cir. 1981), cert. denied, 454 U.S. 1163, 71 L. Ed. 2d 319, 102 S. Ct. 1036 (1982) ("OPEC "), for example, the court dismissed a complaint "where the controlling issue is the legality of a sovereign act [OPEC's conspiratorial price increase for oil] and where the only remedy sought is barred by act of state considerations. . . ." Id. at 1361. Here, however, if the alleged acts of state were assumed to be valid, no remedy for the plaintiff, or defense by the defendant, would be precluded.
Time recognizes that its acts of state contentions fail to fit the traditional requirements.It argues alternatively, however, that the considerations which have led courts to invoke the doctrine -- including a lack of governing standards, the ineffectiveness of judicial relief, and the potential for interference with the Executive branch, see Sabbatino, 376 U.S. at 427-37 -- are present here. In particular, Time contends that the federal courts have no manageable standards by which to decide the issues in this case; that the difficulty of obtaining necessary evidence reflects the impropriety of having a court pass on such matters as the conduct of a war; that the litigation raises questions that both the United States and Israel regard as highly sensitive and delicate; and that the findings and conclusions reached in this case could embarrass our government and one of its closest allies. As Time puts it:
[T]here is no way to avoid the issue of determining the extent of Ariel Sharon's, and hence the State of Israel's, involvement in the massacre at Sabra and Shatilla. It is hard to conceive of a verdict by an American court that would have a clearer capacity for mischief in the American foreign policy realm than a holding by a United States jury that Israel -- the findings of its own Commission of Inquiry to the contrary -- condoned, let alone encouraged, the Sabra and Shatilla massacres. This is precisely the kind of issue the act of state doctrine holds American courts must avoid.
Defendant's Memorandum at 62-63. Furthermore, citing the decision denying its motion to dismiss, Sharon I, 575 F. Supp. at 1166-67 (S.D.N.Y. 1983), Time points out that the alleged libel could be read to suggest that the Commission consciously suppressed adverse information about Sharon to protect Israel from a finding of direct responsibility. Defendants' Memorandum at 77. As Time explains:
Plaintiff will undoubtedly attempt to prove that the Commission did nothing of the kind and that the implication that it did is false. To combat the alleged innuendo, Time will demonstrate that the Kahan Commission did, as the Court has put it, withhold additional material. See 575 F. Supp. at 1167. Obviously, this raises the need for the jury to reexamine what evidence the Kahan Commission had before it and what it did with the evidence. But such an examination is barred by the act of state doctrine.
Defendant's Memorandum at 78.
The act of state doctrine certainly shares most of the same concerns that the Supreme Court relies upon in determining justiciability, particularly when the issue of justiciability arises in the context of the "political question" doctrine. Over sixty years ago, the Supreme Court invoked simultaneously the notion of "political questions," as well as the Underhill act of state doctrine. See Oetjen Central Leather Co., 246 U.S. 297, 302-03, 62 L. Ed. 726, 38 S. Ct. 309 (1918). By contrasting the reasoning in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), and in Sabbatino, moreover, the similarity between the doctrines with respect to the considerations weighed, and the weighing process itself, demonstrates their commonality. Both decisions call for a case-by-case balancing process, and focus on the propriety of a decision by the judicial as opposed to the "political" branches. See also Associated Container, 705 F.2d at 61 (application of act of state doctrine depends upon a balancing of relevant considerations and a careful case-by-case analysis of the extent to which separation of powers concerns are implicated); Texas Trading & Milling Corp., v. Federal Republic of Nigeria, 647 F.2d 300, 316 n.38 (2d Cir. 1981), cert. denied, 454 U.S. 1148, 71 L. Ed. 2d 301, 102 S. Ct. 1012 (1982) (same); Rasoulzadeh, 574 F. Supp. at 856, 858-60 (same). The considerations to be weighed include the existence of "a textually demonstrable constitutional commitment of the issue to a coordinate political department"; Baker v. Carr, 369 U.S. at 217; the availability of judicially discoverable and manageable standards for decision; the ability of courts to secure the facts necessary for efficient adjudication; the capacity of courts to render a decision that will prove effective; and the possibility of embarrassment to or conflict with a coordinate political branch -- particularly in the conduct of the Executive's foreign-affairs powers.See id.; Sabbatino, 376 U.S. at 427-37. See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and The Federal System 233-41 (2d ed. 1973); G. Gunther, Cases and Materials on Constitutional Law 1619-27 (9th ed. 1975); L. Tribe, American Constitutional Law § 3-16, at 71 (1978); Bickel, The Supreme Court, 1960 Term -- Forward: The Passive Virtues, 75 Harv. L. Rev. 40, 75 (1961).
The underlying similarities between the act of state and justiciability doctrines have in fact led courts to resort to general abstention principles in dealing with act-of-state contentions. In OPEC, the Ninth Circuit treated the act of state doctrine as a political question doctrine for foreign affairs:
The act of state doctrine is similar to the political question doctrine in domestic law. It requires that the courts defer to the legislative and executive branches when those branches are better equipped to resolve a politically sensitive question. Like the political question doctrine, its applicability is not subject to clear definition. The courts balance various factors to determine whether the doctrine should apply.
649 F.2d. at 1358-59; see also Occidential of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Abroad the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1201-05 (5th Cir. 1978) (relying on political question doctrine to affirm trial-court dismissal on act of state grounds), cert. denied, 442 U.S. 928, 99 S. Ct. 2857, 61 L. Ed. 2d 296 (1979): Hunt, 550 F.2d at 77 (act of state doctrine expresses a "policy of judicial abstention"); De Roburt v. Gannett Co., Inc., 548 F. Supp. 1370, 1375-76 (D. Hawaii 1982) ("the courts should seek to avoid passing on the validity of foreign acts"), reversed on other grounds, 733 F.2d 701, 703 (9th Cir. 1984). This trend is perhaps nowhere more clearly stated and justified than in Lord Wilberforce's opinion in Buttes Gas and Oil Co. v. Hammer, 3 W.L.R. 787 (1981). Finding that traditional rules against judicial review of acts of state were insufficient to justify relying on the act of state doctrine, he turned to the question whether "there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states;" a principle that is not "a variety of "act of state" but one for judicial restraint or absention." Id. at 804. He found such a principle, in part based on Sabbatino, which he concluded reflected "a "flexible" use of the [act of state] doctrine on a case to case basis, . . . [with] room for a principle, in suitable cases, of judicial restraint or abstention." Id. at 806.
Assuming for now the propriety of the extraordinary development in judicial abstention that these and similar cases represent, the balancing process described in Baker v. Carr and Sabbatino supports the exercise of jurisdiction in this case.
1. Constitutional Commitment to Political Branch.
Turning first to that aspect of the political question doctrine that has consistently been given greatest weight in decisions to abstain, the issues here are not committed by constitutional authority to another branch.This litigation is for libel, it is based on state law, and Congress has authorized it to be filed and decided in this federal court. 28 U.S.C. § 1332(a)(2) (1982). The foreign-affairs aspects of the case, arising from Times's defenses, are not the types of issues expressly conferred upon or routinely decided by the executive or legislative branch. Cf., e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 96 L. Ed. 586, 72 S. Ct. 512 (1952) (control over deportation of aliens entrusted to political branches); Oetjen, 246 U.S. at 302 (recognition of foreign sovereign is "political question" conclusively assigned to legislative and executive branches); Luther v. Borden, 48 U.S. 1, 12 L. Ed. 581 (7 How.) (1849) (guarantee of republican form of government allocated to political branches). Neither the legislature nor the executive has any specific power over such matters as deciding what General Sharon in fact did or said in connection with the massacre, or what the Commission secretly found or discussed in its report. The executive's authority to pass on such issues lies only in its general control of foreign affairs. That a matter touches on foreign affairs is significant to justiciability. "Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." Baker v. Carr, 369 U.S. at 211-12; see Associated Container, 705 F.2d at 61 ("the mere fact that a lawsuit involves activities abroad . . . does not imply that American courts are without jurisdiction").
The narrow issues posed here have no history of management by the political branches. The legislature has had no role, and the executive has taken no position, on General Sharon's conduct in Lebanon, on the Commission's findings, or on this litigation. Both the United States and Israeli governments are treating this case as a private litigation. Thus, the Department of Justice has described this case as one involving "the interest of private parties" and as a "litigation in which the United States is neither implicated nor has an interest." Memorandum of Points and Authorities in Support of Motion to Quash Subpoena at 10, Sharon v. Time, Inc., No. F.S. 84-0549 (D.D.C. 1984). The Executive Branch has been actively and intensively engaged in the management of relations with Israel and Lebanon, and between those states.High officials of the Department of State, and of Israel's Ministry of Justice, have pointed out that the issues raised in this litigation are highly sensitive, involve secret dealings, and concern ongoing efforts to bring peace and stability to the Middle East. These statements, however, have all occurred in the context of wide-ranging demands by Time for information. Thus, the Department of Justice's statement that a "risk" existed of "the disruption of international relations" was made in the context of an argument that a deposition subpoena for former Ambassador Draper be quashed until Time tried to obtain the information it sought from other sources. Sharon v. Time, Misc. No. 84-241, Transcript at 24 (D.D.C. (Sept. 21, 1984)).Similarly, Assistant Secretary of State Richard W. Murphy noted: "The events which were related to the massacre at the Sabra and Shatila camps in September of 1982, occupied the center of U.S. Presidential and diplomatic attention and involved issues of the utmost sensitivity and importance to U.S. foreign relations interests . . ."; but this statement also concerned the Government's motion to quash. Declaration of R. W. Murphy at 4-5 (Sept. 20, 1984). Kenneth W. Dam, acting as Secretary of State, and Deputy Assistant Secretary of State John R. Burke filed affidavits invoking the state secrets privilege with respect to information sought by Time, and explained the grounds for withholding certain material, including the need to protect confidential communications, secret operations, and informants. Opposition to Motion to Compel, Misc. No. 84-0246, D.D.C. (Oct. 12, 1984). Here also the Department was taking no position on the propriety of this litigation, but only opposing some of the broad discovery sought by Time. See Opposition to Motion to Compel, Misc. No. 84-0246, D.D.C. (Oct. 12, 1984). Finally, M. Dennis Gouldman, head of the International Section of Israel's Ministry of Justice, stated in a letter to this court that "this case deals with highly sensitive topics relating to military actions, intelligence concerns and matters of Israel's foreign relations," but this reference responded to "requests for legal assistance" which Israel's Attorney General noted "were drawn up in extremely broad terms. . . ." Letter from M. Dennis Gouldman at 1-3 (Oct. 15, 1984). An expression by a government that disclosure of informatiion in its control may adversely affect national interests differs materially in its importance to abstention from an expression of concern addressed to the possible effects of the litigation itself. In the first situation, the custodian is able to avoid the adverse effects of nondisclosure, whereas in the second, the damage can be avoided only by terminating the litigation or circumscribing its scope. This case falls squarely within the former category.
Manageable standards exist by which to resolve the factual and legal issues that may be presented in this litigation. The central issues are factual -- whether Appendix B contains the discussion alleged by Time and whether that discussion occurred. Issues of historical fact are sometimes difficult to resolve, and the absence of evidence may require that findings turn on presumptions or allocations of the burden of proof. But such issues are conventional fare for juries and judges, and here the presumptions and burdens imposed will overwhelmingly favor the defendant. Furthermore, no difficult question of Israeli or international law is posed by the litigation. In Sabbatino, the Court found that whether Cuba's expropriation was lawful under international law was an issue with respect to which substantial, strongly felt differences existed in the international community. It ruled that courts must weigh the "degree of codification or consensus concerning a particular area of international law" in considering whether to apply the act of state doctrine. 376 U.S. at 428. Here, the only conceivable issue of Israeli or international law -- the propriety of authorizing or condoning a tactically needless massacre of noncombatant, unarmed civilians -- is not in dispute.Cf. Filartiga, 630 F.2d at 881-85 (no controversy over legality of torture). In general, the world community agrees that such actions are illegal and abhorrent, and this consensus has assumed a high decree of codification in local and international law. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287, art. 27, 32-33 (protecting persons from all acts of violence, including murder); Proclamation of Tehran, May 13, 1968, U.N. Doc. A/CONF. 32/41, Sales No. 68, XIV 2, art. 10 (international community must cooperate in eradicating massive denials of human rights arising out of aggression or any armed conflict); Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, arts. I, II(a) (acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group are crimes under international law). Therefore, no lack of manageable standars exists by which to resolve the issues presented.
3. Ability To Secure Necessary Facts.
The representations of both governments concerning the sensitivity of the issues are relevant insofar as they indicate that information may be withheld. Limited access to information may stem from the nature of a particular case, thereby reflecting its possible unsuitability for judicial resolution. Even if the lack of evidence fails to establish a violation of due process, the fact that sensitive or secret material is central to the case and is unavailable must also be weighed in considering abstention.
Still, such withholding is routine in all cases touching on the many categories of information deemed confidential by governments, and its significance will depend entirely on the importance to the litigation of what is withheld. The present record fails to establish Time's argument that it has been denied the information it needs to defend itself. The substantial evidence available on the issues is summarized below, and it includes the Commission Report. Time has also succeeded in obtaining useful information from the Department of State and from the State of Israel. The Department of State has provided Time with ten documents in their entirety; forty-seven documents in part; and it has withheld forty-three documents. In addition, Time has examined Ambassador Morris Draper, who was the principal American diplomatic officer in Beirut during the relevant period, for over two full days. Whether Time will be permitted to call Ambassador Draper, or to use his deposition testimony at trial, remains to be decided; the Department opposes his appearance or testimony. Nevertheless, the information provided Time by the Department is substantial, much of it was declassified so it could be used, and the process of attempting to supply as much as possible is continuing. The Department has thus indicated no objection to the suit going forward, and has even cooperated with Time's needs, subject to protecting the public interests of the United States -- a concern present ini all litigation affecting foreign relations.
The Government of Israel is not as far advanced as the Department in formulating its response to the parties' requests. Mr. Gouldman recently informed this court, however, that the Attorney General of Israel would support allowing a limited examination of Appendix B and of minutes taken at Sharon's meetings in Karentina and Bikfaya. Letter from M. Dennis Gouldman at 1-2 (Oct. 30, 1094). Furthermore, Time will be allowed to depose five Israeli officials, although it will not be permitted to examine every individual whose testimony it seeks. A detailed request for various forms of disclosure from the court to Israel's Ministry of Justice is presently pending. The final appraisal of the parties' ability to obtain information must await the results of this pending effort, but a positive response seems at least a good possibility.
4. Capacity To Render an Effective Decision.
The judiciary is the most effective avenue for resolving Minister Sharon's claims against Time. This court is available to decide all recognized claims, and no obstacle exists, should General Sharon prevail in this litigation, to full judicial redress of his grievances through an award of damages.
That the United States and Israel are close allies with good relations is reason to adjudicate this suit rather than to abstain. American and Israeli citizens have free access to each others' courts. Both nations are members of the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 12 U.N.T.S. 140. Furthermore, while some Convention members require treaty partners to use the sometimes time-consuming Convention process, Israel does not. It has accepted Letters of Request addressed directly to the competent authority, and has transmitted them on an expedited basis through diplomatic channels. See 28 U.S.C. § 1781(a)(2) (1982); Fed. R. Civ. P. 28(b); 22 CFR § 92.66(b) (1984). The nations, in short, contemplate cooperation with each other's citizens who sue in their courts. Were the nations antagonistic, the chances of obtaining relief for any wrong done might be greater through diplomatic rather than judicial means, as Justice Harlan suggested in Sabbatino. 376 U.S. at 431-32. Here, the courts are available to decide Sharon's claims, and the nations involved have in general left their citizens privately to pursue their rights. Israel would seem unlikely to seek relief for Minister Sharon through diplomatic means, and the United States would doubtless avoid placing any form of pressure on Time to bring about a nonjudicial resolution.
5. Possibility of Embarrassment or Conflict with the Political Branches.
While a consideration of the foreign affairs implications of this litigation and the sensitivity of the issues involved is necessary, executive and legislative declarations provide the most reliable, and only authoritative, source of what measures best serve the interests of the United States. Where no representation has been made as to what those interests require, a court's effort to divine what is best for the nation will be speculative. Who is to say, for example, that it would best serve good relations between the United States and its allies to preclude defamation suits by political and military officers charged by the American press with gross violations of human rights?If human rights are to be accorded a favored status in federal jurisprudence, would it serve our foreign affairs interests to review the claims of alleged victims, but to refuse review for the claims of persons accused of such crimes who seek to demonstrate their innocence? If the Department of State unambiguously declared its position in a given case as to what would best serve the interests of the United States, that opinion would carry great weight.See First Nacional City Bank v. Banco National de Cuba, 406 U.S. 759, 788, 32 L. Ed. 2d 466, 92 S. Ct. 1808 (1972) (plurality opinion); Bernstein v. N.V. Nederlandsche-Amerikoansche Stoomvaart Maatschappiji, 210 F.2d 375, 375-76 (2d Cir. 1954); Restatement (Revised) of Foreign Relations Law § 428 at 9-10 (Tent. Draft. No. 4, 1983) (where State Department issues letter requesting that courts not review validity of particular act, that letter will be highly pursuasive if not binding; and where it issues letter stating that it has no objection to adjudication of act's validity, the court will take Executive's view into account, but is not bound by it in determining whether to apply act of state doctrine). Absent any such expression, however, a federal court should not readily assume that declining to decide a sensitive matter will best serve the nation's interests.
A consideration of such questions as the massacre of unarmed civilians no doubt touches "on national nerves," Sabbatino, 376 U.S. at 428, and raises the possibility of embarrassment to the United States and Israel. This case, of course, does not entail judicial scrutiny of the legitimacy of such acts. But even if it did, a court should not refuse to apply established principles of human rights because of a doctrine designed to keep courts out of the business of enforcing property rights in litigation affecting property within a foreign sovereign state. To the contrary, Sabbatino suggest -- and the most current authority proposes -- that the act of state doctrine need not be applied to bar review of the violation of well recognized human rights. Thus, Justice Harlan stated:
There are, of course, areas of international law in which consensus as to standards is greater and which do not represent a battleground for conflicting ideologies. This decision in no way intimates that the courts of this country are broadly foreclosed from considering questions of international law.
Id. at 439 n.34. And the Restatement (Revised) of Foreign Relations Law § 428, comment 4, at 8 (Tent. Draft No. 4, 1983), contains the following relevant discussion:
A claim arising out of an alleged violation of human rights -- for instance a claim by the victim of torture or genocide -- would (if otherwise sustainable) probably not be defeated by the act of state defense since the accepted international law of human rights contemplates external scrutiny of such acts.
Judicial abstention on political questions grounds has similarly been found inappropriate when individual rights in domestic affairs are at stake, even where the litigation touches upon sensitive foreign affairs concerns, or deals with a subject allocated in the main by the Constitution to another branch. See e.g., Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 30 L. Ed. 2d 113, 92 S. Ct. 94 (1971).That Time may attempt to establish that General Sharon -- and through him the State of Israel -- was responsible for fundamental violations of human rights raises the possibility of embarrassment for General Sharon and the State of Israel; but absent clear guidance to the contrary from a political branch, nothing in our jurisprudence justifies a refusal to entertain General Sharon's claim that Time has already leveled such charges, falsely and with actual malice.
The legitimacy of an expanded version of the act of state doctrine is far from clear. The substantial and rapid accumulation of authority in favor of a broadened use of the doctrine as a vehicle for judicial abstention has all taken place in the lower federal courts, in cases involving acts of state in the accepted sense. Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92, 110 (C.D. Cal. 1971) (antitrust claim necessarily required consideration of validity under international law of territorial-waters decree), aff'd, 461 F.3d 1261 (9th Cir.) (per curiam), cert. denied, 409 U.S. 950, 34 L. Ed. 2d 221, 93 S. Ct. 272 (1972); DeRobu rt v. Gannett Co., 548 F. Supp. 1370, (D. Hawaii 1982) (defamation claim required determination of legality of loan allegedly arranged by plaintiff head of state), reversed on other grounds, 733 F.2d 701 (9th Cir. 1984); cf. Hunt v. Mobil Oil Corp., 410 F. Supp. 10, 24 (S.D.N.Y. 1975) (consideration of antitrust claim "would require inquiry into acts and conduct of Libyan officials, Libyan affairs and Libyan policies . . . and the underlying reasons for the Libyan government's actions"), aff'd, 550 F.2d 68 (2d Cir.) (Libya's motivation for act of expropriation necessarily at issue), cert. denied, 434 U.S. 984, 54 L. Ed. 2d 477, 98 S. Ct. 608 (1977). Those Supreme Court cases that rely on a "political question" doctrine, moreover, generally use that concept in its narrowest sense -- to signify that a particular issue, such as recognition of sovereignty, has been allocated to the political branches. Indeed, little support in Supreme Court holdings exists for a broader conception of "political question," see Henkin, Is there a Political Question Doctrine?, 85 Yale L.J. 597 (1976), and the legitimacy of any broader conception of the doctrine has been forcefully challenged by eminent authority, see Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 7-9 (1959).
Nor has the act of state doctrine received an enthusiastic response from the political branches, which are charged with regulating the jurisdiction of the federal courts. After Sabbatino, Congress limited the doctrine to prevent its application to claims for specific property located in the United States. Foreign Assistance Act of 1961, § 620(e)(2), 22 U.S.C. § 2370(e)(2) (1982). Similarly, in the Foreign Sovereign Immunities Act of 1976, § 4(a)(3), 28 U.S.C. 1605(a)(3) (1982), Congress deprived foreign states of immunity from jurisdiction in the federal courts in regard to claims based on their alleged taking of property located in the United States in violation of international law. See generally Note, Limiting the Act of State Doctrine: A Legislative Initiative, 23 Va. J. Int'l L. 103 (1982) (collecting authorities). Our national policy reflects, if anything, a reexamination of Sabbatino, rather than a political consensus for its transformation into a jurisdictional bar through its indiscriminate amalgamation with the analogous but similarly questionable device of judicial abstention. Absent some guidance to the contrary from the political branches, the present circumstances do not justify a refusal to perform the duty to adjudicate.
II. Time's Claim of Absolute Immunity
Time argues that the press should enjoy absolute immunity from suit for statements about the official conduct of high government officers; and it claims that this blanket immunity applies to this case, both because Minister Sharon was, and is, among Israel's most powerful officials, and because the alleged defamation concerned his official conduct in prosecuting a war. According to Time, the kind of statement with which this case is concerned should be given special protection for three reasons: first, because eliminating the danger of legal liability would encourage full and free discussion of critically important issues, such as responsibility for the brutal slaughter of innocent civilians; second, because giving the press absolute immunity for statements about public officials' performance of their jobs is consistent with the absolute immunity such officials enjoy for statements made in the course of their public duties; and third, because public officials such as Minister Sharon have sufficient access to the press to rebut charges made against them. Furthermore, Time contends that the prosecution of civil defamation actions such as this one is the equivalent of a "constitutionally impermissible prosecution for seditious libel." Defendant's Memorandum at 114.
The short answer to these arguments is that the Supreme court had already weighed all the considerations Time advances and has chose alternative means for protecting the strong interest in encouraging publication of view relating to official conduct. In New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), the Court considered arguments for an absolute immunity for statements about public officials and rejected them. Instead, it fashioned the actual malice standard to give the press an especially high degree of protection in suits by public officials. The Court has also made clear that public officials must establish the falsity of the statements they claim are defamatory, thereby reversing the common-law burden of proof by which defendants were required to prove truth as a defense. See Herbert v. Lando, 441 U.S. 153, 159, 170, 175-76, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979); Franklin & Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 W. & M.L. Rev. 825, 851-65 (1984). Furthermore, both federal and state law create privileges for statements of opinion, for neutral reportage, and for fair report of official proceedings. See Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir. 1980); Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S. Ct. 647, 54 L. Ed. 2d 498 (1977). The effect of these overlapping substantive rules is to prohibit the imposition of liability on any defendant who has acted in good faith. Moreover, the Supreme Court's recent confirmation of the requirements of independent appellate review of jury findings also serves the substantive goals of the First Amendment. See Bose Corp., v. Consumers Union, 466 U.S. 485, 104 S. Ct. 1949, 1960-65, 80 L. Ed. 2d 502 (1984).
In contrast to the protective positions the courts have established with regard to the substantive law of libel, they have refused to approve special procedural rules for summary judgment, see Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 1488, 79 L. Ed. 2d 804 (1984); Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940 (2d. Cir.), cert. denied, 449 U.S. 839, 101 S. Ct. 117, 66 L. Ed. 2d 46 (1980), and they have refused the invitation to create a blanket immunity that depends solely on a plaintiff's status. "[C]omplete immunity . . . has regularly [been] found . . . an untenable construction of the First Amendment." Herbert v. Lando, 441 U.S. at 176. An absolute immunity would, for example, justify a knowingly false statement that Time had learned that Appendix B contained details of a secret visit by Minister Sharon to Sabra, where he had personally killed unarmed civilians. Nothing in the first amendment requires that the press have absolute freedom to pass such rumors off as fact, regardless how certain a reporter is of their falsity or how damaging they are to an official's reputation. The Supreme Court has rested its denial of absolute immunity on the fundamental premise that the constitutional value of free speech does not in all circumstances outweigh the states' interests in protecting the reputations of their citizens. In Gertz, v. Robert Welch, Inc., 418 U.S. 323, 341, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), the Court stated that:
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embranced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293 (Black, J., concurring); Garrison v. Louisiana, 379 U.S. at 80 (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S., at 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timerous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.
The legitimate state interest underlying the law of libel is the conpensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose. . . .
Time's claim that this action is the equivalent of a suit for seditious libel is similarly untenable. A vast difference exists between a government's effort to punish speech critical of official policy or acts, where even truth was no defense, and an official's effort to clear his name of an allegation that he acted contrary to official policy and human decency, in a situation in which he must prove both falsity and actual malice. See generally Rosenberg, The New Law of Political Libel: A Historical Perspective, 28 Rutgers L. Rev. 1141 (1975). The statement which plaintiff claims is offensive names him personally, without attributing his alleged discussion about revenge to his government. Cf. New York Times Co. v. Sullivan, 376 U.S. at 292.
Finally, however much value Time's arguments may have in the abstract, this is not a case in which those arguments would justify immunity. Had Time stated that, in its view, the Commission should have found Minister Sharon "directly" responsible for the massacre, or even that he was unworthy of belief when he told the Commission that the possibility of such slaughter was "beyond his wildest dreams," absolute immunity might arguably serve the goals of robust and open debate underlying the first amendment. Whether or not such statements are, strictly speaking, "opinion," they cannot by their nature be disproved, and could be seen as a form of criticism of the official conduct of high government officers worthy of absolute protection.
The considerations marshalled by Time in its present defense might in those hypothetical cases justify a rule of absolute immunity. But the same values require no such rule when the press makes allegations of specific facts, the accuracy of which it vouches for with such descriptions as "Time has learned." In such a situation, the press enters public debate as an active investigator, seeking to influence the course of events with its own findings and reports, and not merely as an observer and commentator.The impropriety of immunity becomes clearer still when the press, rather than relying on publicly disclosed evidence or on its own reputation for credibility, attributes the findings it "has learned" to the secret portion sof the report of an official, investigative body that has concluded its function and gone out of existence.The full protection of opinion and fair comment should encourage the press to express its opinions or comments as such, rather than to magnify the weight of its views by connecting them to the findings of fact of a body that has special authority over the issues involved. The protection of opinion and fair comment should not be expanded to encourage the press, with actual malice, to pass off its opinions or findings in a form that unfairly enhances the weight these opinions would otherwise receive in public debate.
High public officials certainly should be prepared to bear criticism and condemnation in public debate, especially for official conduct, and to use the press to defend themselves. But sometimes the courts provide the only potentially effective forum of defense. In this case, the Commission had finished its work and in any event would probably not have entertained an application from Minister Sharon for a public clarification of the contents of an appendix it had decided to keep secret. Thus, Sharon had to look to Time itself to correct the defamatory implications of its story. Time's press release indicated that the paragraph was capable of the defamatory meaning which Time has consistently stated it did not intend to convey. Nevertheless, Time has refused to issue any correction or to print plaintiff's denial. Only through the litigation process has plaintiff been able to uncover and publish the evidence from which Time claimed to have learned the contents of the Commission's secret appendix. And only through this avenue has he been able to bring to light the process by which the allegedly offending statement came to be written, including evidence of the possible motivations and truthfulness of its author. That this process has proved enormously expensive, and painfully contentious, is as much the product of Time's all-out litigation strategy as of any plan by plaintiff to intimidate the press. Despite the fact that every single Time witness claims to have had no evidence that plaintiff knew in advance that the massacre would occur, Time has chosen to pour enormous resources into proving precisely that.Time may be entitled to enhance through such tactics the risks plaintiff facaes in suing for defamation. But it would be pure fantasy to treat Time in this case like some struggling champion of free expression, defending at great risk to itself the right to publish its view of the truth.
III Due Process and Preclusion
Time raises two related arguments concerning its inability to obtain information which it believes to be central to its defenses. First, it argues that Minister Sharon's refusal at his deposition to testify on certain subjects, particularly on what is contained in Appendix B and in the minutes taken at Bikfaya, requires that he be precluded from testifying on these subjects at trial. Second, Time argues that plaintiff and the Israeli government, acting either together or in concert, have obstructed Time's efforts to obtain discovery, particularly of evidence critical to its defense of substantial truth. Time contends that these limitations on its discovery must all be attributed to plaintiff, that the access to important evidence which it has been denied has left it unable fairly to present its case, and that it has therefore been deprived of due process.
These arguments are meritless in light of the context in which the claims involved arose and the facts surrounding Time's ability to obtain the information it seeks. Minister Sharon has cooperated and testified adequately. His refusal to divulge certain information is based upon a reasonable invocation of Israeli secrecy law and justifies neither preclusion nor dismissal. Time, moreover, has had access to ample evidence to enable it to present the defenses it asserts. Finally, Time has not established that the State of Israel is acting in concert with Minister Sharon to deprive Time of needed evidence; rather, the record is wholly consistent with the view that Israel has treated this as a private litigation and that it is attempting in good faith to ...