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Criminal Defamation Cases

This article describes the process by which powerful people preserve their reputations before they get to the point of filing libel charges. Here we have a General in the American war on drugs and a Pulitizer prize-winning journalist duking it out. In our case, Dueck was able to have our stories removed from Sympatico but was unable to prevent us getting the truth -- which he considers to be defamatory -- onto a paid server. He seems to have decided that since our readership is still small, he can live with the damage to his imagined reputation. We hope free speech can bring down Dueck and the "Drug warriors " like Barry McCaffrey whose reputations are based on the abuse of power. . .

Drug Czar up in arms over Gulf War Inquiry

Retired Gen. Barry McCaffrey, the White House drug czar, has mounted an unusual preemptive strike against investigative reporter Seymour Hersh over a potentially explosive story for the New Yorker that has not yet been published.

McCaffrey has written the editor of the magazine and other news organizations to complain that the veteran author has been conducting "defamatory" interviews filled with "false allegations" and is doing so out of "personal malice."

The result has been a flurry of detailed letters, charts and "for the record" memorandums among McCaffrey, his former military colleagues, Hersh and New Yorker Editor David Remnick about who is being unfair to whom.

In a letter to the drug office, Hersh dismissed a McCaffrey assistant's suggestion that his interviews "seem 'purposely designed to falsely impugn' General McCaffrey's reputation," saying that conclusion appeared based on one disputed interview.

"Your allegations are wrong. . . . I am simply going about my business, as I have for the past 35 or so years, asking questions, listening to answers and trying to verify and assess what I've been told," Hersh wrote.

Part of what Hersh is examining, according to McCaffrey and memos and letters from eight current and former military officers, are allegations that the 24th Infantry Division, under McCaffrey's leadership, committed war crimes during the 1991 Persian Gulf War. If such charges are printed, they will undoubtedly draw global attention, especially since Hersh won a Pulitzer Prize for exposing the 1968 My Lai massacre in Vietnam.

In an interview, McCaffrey flatly denied such allegations, especially the most sensational one: that soldiers under his command had shot Iraqi prisoners of war. McCaffrey said his wife has been in tears over the inquiry.

"This just isn't going to pan out. . . . I can't imagine it's remotely possible he can find a person who can substantiate a claim of any wrongdoing that wouldn't disintegrate with five minutes of questioning," McCaffrey said. But he has refused to grant Hersh an interview, insisting instead on written questions.

David Remnick, the New Yorker's editor, said: "I have complete confidence in Sy Hersh. Remember, we haven't published a thing yet."

While he takes McCaffrey's complaints seriously, Remnick said, "I have absolute confidence in Sy and confidence in how we do things here in terms of fact-checking and legal read and all the things that places like the New Yorker and The Washington Post expect of themselves." He said Hersh has "a long track record" and that "I'm very proud to be associated with him."

Hersh said Sunday that he could not discuss an ongoing project. "How can I talk about something I haven't written yet?" he asked.

This is a clash of two strong-willed individuals. Hersh, 63, a former New York Times reporter, is known for his tenacity in exposing scandals. In one New Yorker piece, he interviewed more than 100 past and current government officials in questioning whether the United States had bombed the wrong building in a 1998 strike against Sudan, as many critics have come to believe.

But Hersh also drew widespread criticism over his 1997 book "The Dark Side of Camelot." Hersh was initially suckered by a former paralegal peddling a bogus batch of John F. Kennedy papers--including the tale of a supposed payoff to Marilyn Monroe--but cut the material because of doubts about its authenticity.

McCaffrey, 57, who was wounded three times in Vietnam, has been awarded the Distinguished Service Cross twice, the Silver Star twice and the Purple Heart three times. He commanded 26,000 troops during the Persian Gulf War and, in a final battle, joined the attack in a Bradley Fighting Vehicle because, he said, "I like to fight." McCaffrey was the nation's youngest four-star general when he retired in 1996 to accept President Clinton's appointment to head the Office of National Drug Control Policy.

Under the circumstances, it is impossible to evaluate the quality of Hersh's evidence, some of which is already being fact-checked by the New Yorker, or even to be certain of the focus of his inquiry.

In making the correspondence available to The Washington Post, McCaffrey is adopting the increasingly popular tactic of a news subject trying to make the journalist the issue before he delivers his findings. Last fall, for example, Metabolife launched a $2 million campaign against ABC's "20/20" over a pending story on the company's diet pills--a story that executives later had to admit was not terribly unfair.

Elements of Hersh's investigation, from McCaffrey's early career to the drug office's efforts in Colombia, can be pieced together from written comments by some of the military men he has interviewed, who provided copies to McCaffrey, who in turn has furnished the material to some news outlets.

Retired Col. Ken Koetz, for instance, wrote that Hersh had said of McCaffrey: "I really want to bury this guy." Hersh, in his letter to the drug office, denied having made such a comment.

Retired Col. Justin Hughes said Hersh told him that when McCaffrey was 11 years old at Fort Leavenworth, Kan., he stole another boy's bicycle and that McCaffrey's father, a colonel, had intervened with military police to get his son off the hook. McCaffrey called the story "preposterous," saying he never lived at Fort Leavenworth.

In his memo, Hughes said Hersh told him that he was examining allegations ranging from McCaffrey's Gulf War units "misreporting" their positions to headquarters to the "murder of thousands of retreating enemy soldiers."

Another memo was written by retired Lt. Gen. James Scott, now director of Harvard University's national security program. Scott said Hersh spoke of information that Iraqi prisoners of war were shot at Tallil air base by members of the 24th Division, and that the Army had covered it up. Hersh also contended that McCaffrey "had destroyed the careers of many officers" and was "universally disliked," Scott told Remnick in a letter.

Scott also said Hersh told him that yet another officer, Lt. Gen. John Van Alstyne, had implicated McCaffrey in military wrongdoing. But Van Alstyne wrote Remnick that "this is very disturbing, since I have never spoken with Mr. Hersh on any subject."

In similar fashion, Lt. Col. Troy Kunz wrote that Hersh maintained that Brig. Gen. Richard Quirk III was aware of the alleged shooting of Iraqi prisoners, but Quirk said in his own memo that he had never heard of such atrocities.

Summarizing his defense in a memo dated Friday, McCaffrey wrote that a 197th Infantry task force, backed by air attacks, had invaded Tallil air base, but that no Iraqi prisoners were executed.

Maj. Scott Hays, an Army spokesman, said the service's criminal investigative division examined the allegations of atrocities at Tallil and found them to be "unsubstantiated." He said Hersh has requested copies of the documents involved.

McCaffrey also wrote that he and a 24th Division brigade had engaged the Iraqis in a post-cease-fire battle at Rumaylah oil field, destroying 187 armored vehicles and about 500 other vehicles. But he said the American troops, rather than mistreating the thousands of captured Iraqis, gave away their own food, water and blankets.

As part of his campaign to neutralize Hersh, McCaffrey contacted the Gulf War commander, retired Gen. Norman Schwarzkopf, who wrote back expressing his "100 percent support." McCaffrey also drew support from a Marine Corps general who fired off a letter to Remnick.

Some Hersh critics have gone so far as to suggest that the reporter is not properly identifying himself. Two of the current and former military officers wrote that Hersh had described himself as working for the New York Times--an unlikely claim, since it would be easy to check that Hersh hasn't been on the newspaper's payroll since 1979. Times Editor Joseph Lelyveld wrote the drug office that he believes Hersh's assurance that he presented himself only as a former Times reporter.

As the correspondence has escalated, McCaffrey's hostile fire against Hersh has grown quite personal. "Hersh is hoping for a knockout blow, to rediscover My Lai in his dying years," McCaffrey said in the interview.

But should McCaffrey be sending news organizations--using White House stationery and at taxpayer expense--not just letters in his own defense but also articles criticizing Hersh over the Kennedy book? "When someone is attacked," asked Bob Weiner, McCaffrey's spokesman, "don't they have the right to defend themselves?"


Magazine folds after libel bill

The image behind the trial LM, the left-wing magazine successfully sued for libel by ITN, has closed down after being ordered to pay £375,000.

libellous image

The case, which also left the magazine - formerly known as Living Marxism - facing £500,000 legal costs has sparked a row over issues of free speech.

ITN, and its reporters Penny Marshall and Ian Williams, brought the action following the publication of LM's article accusing them of misrepresenting Bosnian war images.

LM's publishers say the magazine's current edition is likely to be its last monthly issue and have criticised ITN for its "heavy-handed" approach.

Editor Mick Hume and co-publisher Helene Guldberg say they also face personal bankruptcy, although both are working on plans for a new magazine to succeed LM.

The LM article, headlined "The picture that fooled the world", accused ITN of deliberately misrepresenting an image which later became a symbol of the horrors of the Bosnian war.

Its author, German journalist Thomas Deichmann, claimed that images of emaciated Muslims held behind barbed wire were taken from outside an open-access refugee camp.

However, the jury accepted that the camp was a prison and the ITN pictures had represented the truth.

Despite their court success, ITN and the two reporters have been criticised for launching an action seen as a blow to free speech.

Supporters including Doris Lessing, Margaret Drabble, Fay Weldon and Auberon Waugh have all voiced concern over the action which, they say, should have been kept away from the courts.

Writing after the trial, Ms Guldberg said: "The use of libel law as a last resort may be understandable, when all other avenues have failed. As a first resort, it is inexcusable.

"If LM magazine went running to the High Court whenever libelled, we would be multimillionaires by now (as would many other journalists)."

Mr Hume added: "The use of the (libel) law by a large news organisation against a magazine with a circulation of 10,000 could have far reaching implications for independent and investigative journalism."

A statement issued after the trial by Mr Williams and Ms Marshall defended their action.

"There is absolutely no doubt that freedom of speech is essential to society. But the freedom to print lies masquerading as the truth, as LM did, is not," it said.

ITN refused to comment on news of the magazine's closure.