by Jared Israel
www.tenc.net * Emperor's Clothes
13 May 2000 - As you probably know, two months ago, ITN, the giant British news station, won its libel suit against the little British magazine, LM. LM was ordered to pay ITN and reporters Penny Marshall and Ian Williams 375,000 pounds damages and 300,000 pounds for court costs. That is 675,000 pounds total or over a million USD. It bankrupted LM.
But it wasn't only LM that took a beating. LM refused to challenge ITN's use of the trial as a forum in its continuing campaign to slander the Bosnian Serbs. Because of this LM strategy, which was endorsed by LM's chief witness, Thomas Deichmann, the truth about the Serbian people took a beating as well.
Punished for exposing a lie
LM's original sin was that in 1997 they printed an article by Deichmann called "The Picture that Fooled the World." In it Deichmann argued that photos of a supposed Bosnian death camp were a hoax. Those photos were taken from footage shot at a refugee Center in the Bosnian town of Trnopolje (turn-OP-ul-yay) by an ITN crew led by Penny Marshall, an ambitious young reporter. The ITN crew had visited this refugee center and also a detention center in Omarska with permission of the Bosnian Serb authorities. After the visits, the crew left Yugoslavia and ITN released still shots of the refugee center which were broadcast worldwide as evidence that the Bosnian Serbs (Orthodox Christians) were running death camps for Bosnian Muslims (mostly people of Serbian descent whose ancestors had converted to Islam.)
In his article, Deichmann pointed out that a crucial piece of visual evidence, a barbed wire fence, which in the ITN photos seems to enclose a group of refugees, actually enclosed the ITN crew. By filming through this fence, ITN got raw footage which, after being doctored, conveyed the impression of harsh imprisonment. This is all proven, using footage shot by a Serbian film crew that accompanied ITN, in the Emperor's Clothes movie, Judgment!'
The ITN photos fueled an anti-Serb hysteria, worldwide. For example, immediately after the photos were shown on US Television, President George Bush, Sr. announced draconian measures against Serbia and soon thereafter, Presidential candidate William Clinton demanded that Pres. Bush bomb the Bosnian Serbs.
'Judgment!' proves Deichmann was right. The pictures were fake. But if the pictures were fake, how come LM lost the libel case?
Blame it on Rio; blame it on the stars
Recently Thomas Deichmann asked a friend if she knew someone who might translate an article about the trial into English. His friend contacted me. Along with Max Sinclair, who has co-authored some Emperor's Clothes articles, I agreed to do it. The English translation is posted below, following these comments.
Until I read Deichmann's article, "Libel for False Television Pictures," I believed that Deichmann and LM publisher Mick Hume had fought the good fight at the libel trial. But after reading the article, I changed my mind.
In his article, Deichmann takes a fatalistic view of the causes of his and LM's defeat:
"The verdict did not come as a surprise to the LM team. Publisher Mick Hume commented: 'We had to prove the unprovable.'"
According to Deichmann, the key moment in the trial was at the end, when Judge Morland gave his summation. Here is Deichmann's report of what the judge said. (Keep in mind that Deichmann translated Judge Morland's remarks into German and we translated them back to English, so this isn't exact, word for word. But I have read other accounts of the summation, and as far as I can tell Deichmann accurately reports what the judge said.)
'"The decision is yours [said the judge]. But isn't it clear, after examining the unedited pictures and the bundle of photographs from Mr. Deichmann, that before the [Bosnian] Civil War the area surrounding the garage and the electrical transformer was fenced in? This fence was made up of tall metal posts on the top of which was fastened barbed wire and below ordinary wire mesh. It had a gate to the east bound street. Ian Williams, Penny Marshall, and her camera crew openly contradict themselves if they say they did not realize they were surrounded by the old barbed wire fence....' Judge Morland then said: 'But does this matter at all to the case?' He reminded the members of the jury what this Libel case was about. The central question which the jury had to decide on was: In the eyes of the court did LM lie when it said that the ITN reporters deliberately published a misleading photo?"
Deichmann argues that by telling the jurors that, based on the unusual British libel law, they should decide for ITN unless they were convinced that ITN had deliberately misled the public, the judge set an impossibly high standard for LM. How, Deichmann argues, can anyone prove intent to mislead? That, says Deichmann, is why ITN won.
Up until now, all of LM's supporters, including me, have bought this explanation. We blamed British libel laws and an unfair Judge. This has been a comfort because it puts the blame on external forces. It portrays Deichmann and the LM people as abused heroes.
The problem is, it isn't true.
Flaws in the ointment
Yes, the British libel laws put an unreasonable burden on the defendant. And yes, as I wrote in my article, "Tears of the Mighty," the <i>LM</i> verdict was "a grim miscarriage of justice."
But the Judge's remarks came at the end of a jury trial. Mustn't jury members have formed opinions before the summation?
Moreover, the Judge's remarks could be construed as anti-ITN. As Deichmann's article points out, the judge said:
"Ian Williams, Penny Marshall, and her camera crew openly contradict themselves if they say they did not realize they were surrounded by the old barbed wire fence."
Wasn't the judge telling jurors that the ITN people had lied about the photos; indeed, that they had continued lying during the trial? If at the end of the trial, jury members had no strong feelings, couldn't the Judge's summation have swung them against ITN, despite his instructions about the libel law? And if ITN had lost the case, mightn't its defenders have argued that the Judge's summation caused their defeat?
Juries are won over by arguments. How could this summation, which effectively accused the ITN people of perjuring themselves, have helped ITN?
Was there something wrong with the way LM had presented its arguments? Or was there something wrong with LM's strategy?
The trial was emotionally charged because of the issues involved. The British government had been involved in a war against Serbia, a former ally, for more than a year, counting the NATO-UN occupation of Kosovo, which was in fact a continuation of the 1999 bombing campaign by other means. The British mass media had been slandering the Serbs for ten years. The trial involved strong issues: supposed death camps, atrocities, media lies.
Deichmann accepts ITN's arguments
I think that in this climate, the Judge's summation had a hidden subtext, which had nothing to do with libel laws.
The Judge was seemingly talking about the charges against LM. But LM was not the real focus of the trial.
That is clear from Deichmann's own account:
"ITN lawyer Tom Shields stressed, during the trial, that the miserable condition of Trnopolje was noteworthy. The plaintiffs brought also as a witness, a Muslim Physician whom the guards forced to care for the camp's inhabitants in the Summer of 1992. At the time he was also interviewed by Penny Marshall and secretly gave her a camera with poorly lighted photographs on a undeveloped film. The photos showed spotlighted Bosnian Muslims who had been beaten and mishandled by the Serb guards. The Physician described on the witness stand the rape and assault of defenseless civilians. I never disputed these facts. His testimony was without question the most moving of the entire trial. Despite this, my impression was that this only influenced the Jury enough to score a few moral points for ITN. LM attorney Millar declined a cross examination and later asked me if I wished to speak with [i.e., cross-examine - JI] the Physician. I answered no." [My emphasis. -- JI]
In the above, remarkable statement, Deichmann accepts every accusation the physician made against the Bosnian Serbs as gospel truth. Who is this physician? Deichmann doesn't tell us. Does he know? Did anyone from the LM side challenge the physician's credentials as an objective observer motivated only by desire to tell the truth? No they did not. Indeed, they waived their right to cross-examine.
Why does Deichmann accept the accusation that there were "miserable conditions at Trnopolje"? Deichmann knows no more about what happened in Trnopolje than I do - we have both looked at the same video footage. Aside from the miserable fact of being refugees during a war, the footage suggests decent treatment. As shown in 'Judgment!', one of the refugees, Mehmet spoke to ITN reporter Penny Marshall calmly, cheerfully, rationally, trying to knock some sense into her head. Marshall kept trying to get Mehmet to say the Serbs were abusive. "No," Mehmet replied. "I think, very kind. But too hot." (It was August.)
Why does Deichmann accept that "the photos [supposedly passed secretly to Penny Marshall] showed Bosnian Muslims who had been beaten and mishandled." How could he know when and where the "poorly lighted photographs" shown at the trial by ITN had really been taken? How could he know the photos were not phonies? Couldn't the people in those photos have been actors? Or mightn't they have been Muslims or even Orthodox Christian Serbs who had been photographed elsewhere? Who knows? Didn't this trial take place precisely because LM challenged the authenticity of the "pictures that fooled the world"? Wasn't ITN suing because Deichmann had written that the ITN pictures were "fakes"? If ITN pedaled fake pictures before, why on earth did Deichmann say, without hesitation, that they were peddling real pictures now?
Deichmann writes, "The physician described on the witness stand the rape and assault of defenseless civilians." Note he does not even use the term, "alleged." To be accused of rape and assault by this doctor was to be convicted. Why? Can't one imagine a few possible reasons for the good doctor to have lied? Such as: a) he was promised some reward if he lied or b) he was afraid of what would happen to him and/or his family back in Bosnia if he did not lie. Deichmann says the man's testimony was "the most moving." Why?
Why in heaven's name did the LM people refuse to cross-examine the physician?
I think they did not challenge the doctor's testimony because, having been caught up in great events, they had first taken a brave stand and then, seeing that the enemy had raised the stakes (by attacking LM all-out) they surrendered. Whether or not there was ever an explicit discussion between some representative of Deichmann and/or LM and the ITN people, in effect LM-Deichmann and ITN cut a deal. I will explain the nature of this deal later. First, let us consider what was at stake in the trial.
"To awaken a specific impression..."
Deichmann writes that the purpose of the doctor's testimony was:
"...to awaken a specific impression. This impression was that I wished for Serbs, who were guilty of such evil acts, to be somehow left unpunished."
Deichmann thinks that attacking him was the goal of ITN; I beg to differ. ITN was not mainly interested in proving something about Deichmann, they were interested in showing that they were right when they accused the Serbs of being "guilty of such evil acts..." They wanted to prove that the Serbs are (supposedly) indefensible. In other words, they were trying to win a moral argument.
Deichmann insists that he "supported none of the parties in the Bosnian Civil War."
To call what happened in Bosnia a Civil War is misleading, because one party - the Muslim extremist SDA, led by Alija Izetbegovic - was financed and coached by the West, particularly the US. NATO bombed Serbian positions in support of the SDA. And the Western media operated as the SDA's super public relations firm, reaching millions with lies demonizing the Serbs and falsely describing the SDA as moderate and as the legitimate government of Bosnia.
In August 1992, ITN published pictures that were edited and presented in such a way that they created the impression that the Serbs were the 'new Nazis.' In challenging the authenticity of those pictures, Deichmann and LM were supporting a very important 'party,' namely the public's right to know the truth about the attempted demonization of a people. They were supporting honest journalism. The first task of honest journalism - journalism in the tradition of Emile Zola and Freda Kirchwey - is to insist on scrupulous regard for facts when the Establishment is trying to libel a people. If ever there was an Establishment, ITN is part of it, and if ever there was a people the Establishment was trying to libel, it is the Serbs. That is why Deichmann's earlier stand, challenging the "pictures that fooled the world," inspired millions, myself included. But when Deichmann, according to his article posted below, refused to challenge the physician's claim that at the Trnopolje refugee center, the Serbs "were guilty of such evil acts," he was no longer supporting the party of honest journalism. He was supporting the use of unsupported slanders to demonize the Serbian people.
What was ITN's main objective at the LM trial? In his article, Deichmann suggests that ITN wanted to attack LM and Deichmann in order to frighten journalists who might otherwise challenge media giants in the future. To which I say, sure, they wanted to do that, but it wasn't their main objective.
ITN's guiding strategy at the trial was not merely to personally attack LM and Deichmann and it was not merely to prove that they had told the truth about the "pictures that fooled the world" and it was not merely to intimidate journalists. Their central strategy was to prove that the media in NATO countries were morally right to attack the Serbs. LM and Deichmann answered this big strategy with a feeble counter-strategy, to a) argue that they had told the truth about the 1992 ITN photos and to b) leave unchallenged ITN's continuing attacks on the Serbs.
Deichmann and LM made a narrow argument and refused to answer ITN's big moral argument. ITN said: regardless of whether Deichmann told the truth in "The pictures that fooled the world," we told the more important truth: that the Serbs are monsters. That was ITN's theme at the trial, expressed most sharply in the physician's testimony, which was the trial's centerpiece.
As demonstrated in this trial and indeed throughout human history, all things being equal, when one side makes big moral claims and the other side concedes those claims, the first side will win. Always. Even if, as in the case of ITN's attacks on the Serbs, the big moral claims are lies.
This is most obviously true when the side making the big moral claims is the Establishment. Indeed, the lesson of history is that, when the little guy takes on the Establishment, his only hope of winning lies in exposing the injustice and dishonesty - that is, the immorality - of the Establishment. So if the little guy deserts this approach, if he allows the Establishment to have the moral victory, and only contends over secondary issues, then he faces an opponent that has both immense power and an unchallenged claim to justice. When - as is inevitable - he loses, he will tell himself they were just too powerful.
Do you want to know the power of a moral idea, fearlessly defended by the little guy? Just go to www.google.com and type these words - Zola Dreyfus. That's all - Zola Dreyfus. By publicly challenging the attempt by the French army and the Catholic Church to railroad a Jewish officer named Alfred Dreyfus on espionage charges, and thus foment antisemitism, the novelist Emile Zola transformed French politics. He had such a huge effect that now, over a hundred years later, there are 45,000 references to what he did on Google.
Deichmann and LM had a similar though certainly smaller affect when they blasted the lies which had been used to demonize the Bosnian Serbs in August 1992, near the beginning of the fighting in Bosnia. It is most unfortunate that they caved in during the trial.
But, one might ask, if Deichmann had done as I am suggesting, what would have happened at the trial?
Let us consider that question.
The jury, and the 'jury of public opinion'
Mr. Deichmann either does not understand the judge's summation, or he doesn't want to understand it.
When the Judge noted that the ITN people had contradicted themselves - in other words, that they were lying about the "photos that fooled the world" - and then added, "But what does it matter, really?" he seemed, as Deichmann claims, to be talking about legal technicalities. (The British libel law states that to accuse a journalist of lying is libelous unless you can prove he intended to lie.) But this was only the appearance of what the judge was saying, because the underlying issue in this trial was not the British libel law. After all, if that were the real issue, then why did ITN bring the physician to testify?
In his article, Deichmann writes:
What an amazing juxtaposition: 'The most moving testimony' and 'only a few moral points'!
Juries are not made up of legal scholars, Mr. Deichmann. They are made up of ordinary people and, by and large, they want to do what is morally right, as they understand it. Therefore "a few moral points" makes a whopping big difference to a jury.
How jury members conceive what is morally right is determined by a) their values, factual knowledge and opinions formed throughout their lives, i.e., before they arrive in court, and b) the evidence and arguments, as presented by both sides.
The jurors in this case had been reading British newspapers and watching British TV, so they had formed opinions about Bosnia. Assuming they were like most people in the West, they had concluded that the Serbs were very bad - the new Nazis, in fact - and that the West had been too soft on them. Emperor's Clothes has presented a good deal of evidence to demonstrate that this is dead wrong, indeed the opposite of the truth, but the jurors had probably not read Emperor's Clothes.
Faced with a trial in which the real issue is whether to support or oppose someone (ITN) who has attacked 'the new Nazis' what will jurors want to do? Side with ITN? Or side with someone who tried to bring ITN down?
It's a no-brainer. In any argument, the onlookers will root for the side that they feel is morally just against the side they feel is morally unjust, even if the unjust side is technically a better debater. And a trial is merely an argument with big stakes.
So going into the trial, those jurors wanted to find in favor of ITN. In his summation, the judge gave the jurors a technical excuse to use if they wished to make a moral statement in favor of ITN, meaning against the Bosnian Serbs. He told them, you should accept the truth of LM's case, that it was the ITN film crew, not the Muslims pictured in the ITN photos, who were behind barbed wire. But, he added, this does not mean that legally you are required to find for LM.
The subtext of the Judge's remarks was: 'If you believe that the Serbs were committing Nazi-like crimes at Trnopolje, then you needn't be concerned that ITN may have lied. If Trnopolje was a house of horrors, then the photos were telling the underlying truth about the Serb brutes, regardless of who was or was not behind some barbed wire.'
That was all the jurors needed. Why? Because what happened in the trial had confirmed the jurors' original feeling: that ITN was the morally just side.
A winning strategyHow could LM-Deichmann have used a moral approach in this trial, in which the moral understanding of the jurors started out against them?
They should have told the whole truth. Here are a few ideas - not the only ones, to be sure. But they indicate a direction. A lawyer, skilled in cross-examination, could, I believe, think up many tactical ways to implement the strategy that follows.
At the outset, LM-Deichmann could have said that it is a principle of justice that one cannot have a fair trial if the jury is biased against the defendant. They could have said, 'We believe you don't think you are biased against LM. But is LM the real defendant here?'
They could have said, 'We will prove in this trial that ITN lied about the "pictures that fooled the world." But we will prove more. The real defendant in this trial is not LM and Deichmann; it is the Serbian people. LM is under attack because we dared to challenge one particular and grotesque lie, typical of many grotesque lies, spread by the entire Western media, to demonize the Serbs. The issue with these pictures is not whether we can prove that ITN lied deliberately; the issue is whether this was part of a pattern of lying by ITN and other immensely powerful media corporations, and whether it is justifiable to defend a small people, lied about in the big media.'
They could have said to those jurors, 'Today you, and we too - all of us - are at the mercy of huge information corporations controlled by the same Establishment that has declared war on the Serbian people. Because no powerful force opposes these information monopolists, they have been able to get away with telling you countless lies about the Serbs. The important thing about the ITN pictures is that in fact they are typical of the lying media coverage of Bosnia.'
Just as ITN tried to play the moral card by bringing the physician (to 'prove' that the Serbs were supposedly monsters) LM-Deichmann should have played their moral card by a) taking the intelligence of the jurors seriously and b) accusing ITN of using the trial to further the Establishment strategy of lying to demonize the Serbs. (Which was indeed the purpose of the trial.)
Having integrated the communication of these points into their statements, examinations and cross-examinations, LM-Deichmann could have brought in witnesses to testify about other lies ITN has told about the Bosnian Serbs, thus demonstrating a pattern of lying against the Serbs.
LM-Deichmann could have explained to the judge (and of course, to the jurors) why they were doing this: because the easiest way to prove ITN deliberately misled the public in the instance in question was by showing that ITN has exhibited a pattern of lying to demonize the Serbs
If the judge allowed this approach, if he allowed witnesses to answer questions about other cases in which ITN lied about the Bosnian Serbs, all well and good. If the judge, unreasonably, ruled such questions out of order, LM would nevertheless have communicated to the jurors, and perhaps to the public, the seriousness and importance of their charge: that ITN used its position, used the public trust, to help demonize a people and destroy Yugoslavia.
Even if the jurors were not convinced that LM was right, they would have seen that LM was making a big moral argument, and ITN would have been placed on the defensive, where it belonged, instead of being able, ludicrously, to pose as the underdog, morally wronged by great, big LM, which is what the unfortunate strategy adopted by LM and Mr. Deichmann permitted ITN to do.
Having raised such points, whether witnesses were permitted to answer questions about a pattern of lying or not, LM would then have been positioned to take the offensive, ruthlessly cross-examining ITN's ace-in-the-hole, the Muslim doctor, with the goal of branding him a liar.
Deichmann says the physician's testimony about alleged Serbian abuse of Muslims in Trnopolje "...was without question the most moving of the entire trial." LM and Deichmann declined to cross-examine. By so declining, they refused to challenge the living evidence (the physician's testimony) against the real defendant (the Bosnian Serbs) and so, at that point, ITN won.
It is difficult to attack a prosecution witness who has dishonestly but successfully appealed to juror's emotions. Indeed, it is difficult to do many things, but in life and especially in politics, the most difficult tasks are often the most important, and when approached intelligently, may reap the biggest rewards.
If, throughout the trial, LM and Deichmann had adopted the strategy of exposing ITN's pattern of lying about the Serbs, then they would have had the moral stature to turn the physician's testimony against ITN by exposing the physician as a cynical liar.
For example, they might have said to that doctor, 'You have made some horrific charges. But some things about your story are puzzling. You say you had to hand Penny Marshall your camera in secret, because, you claim, the Serbs were watching and you had much to fear. Could you elaborate?'
After the doctor waxed poetic about how he was under scrutiny with an ever-present threat of deadly reprisals, the defense could have asked, 'Why did you believe the Serbs wouldn't want you to give Ms. Marshall your film?' The doctor would explain that of course they were afraid of the truth getting to the public. The defense could have responded, 'There was quite a public hue and cry about supposed Serb concentration camps at that time wasn't there? And the Serbs denied it, didn't they?' Then the defense could ask, 'If you are telling the truth about supposed monstrous abuses at Trnopolje, and if the Serbs therefore wanted desperately not to let the truth get out, then why did the Serb leaders invite ITN to film and interview people in Trnopolje? Why was Ms. Marshall allowed to speak to you in the first place?"
Deichmann writes that the court permitted LM to use the uncut film that ITN shot at Trnopolje. This film is almost identical to footage shot by the RTS (Serbian TV) crew that filmed alongside ITN. The RTS footage was used to make the Emperor's Clothes movie, 'Judgment!' As anyone who has seen 'Judgment!' will testify, the Bosnian Muslim refugees at Trnopolje wandered about freely. They gave casually disdainful answers when asked if they were being mistreated - as if the idea were ridiculous. Beaten men, men who are threatened with violent reprisals (even death!), may out of fear deny they are being harmed, but they begrudge such lies. They are sullen, not relaxed and casual, like the refugees in 'Judgment!' and, therefore, also in the uncut ITN footage. The defense could have played the footage in which one of the Muslim refugees, Mehmet, chats amiably with Penny Marshall, while a large group of refugees looks on, with everyone except Penny Marshall appearing relaxed, reasonably cheerful, and with no evidence of fear. They could have asked the doctor, 'Do you see any guards here?' And, 'If your stories were true, wouldn't these be the men who were being beaten and killed; wouldn't it be their wives and girlfriends and mothers who were being raped. How do you explain that they joke with Penny Marshall? Why does the refugee, Mehmet, reject Penny Marshall's persistent attempts to get him to say the Serbs are mistreating the Muslims? Why does Mehmet say the Serbs are kind, "very kind"? And how do you explain the fact that there are no guards? Are you claiming that the Serbs placed you, a doctor, under close watch, but they did not even send a guard to tag along alongside Penny Marshall's film crew when she interviewed these men - the very ones you say were being beaten and killed? I submit, doctor, that your story about rapes and beatings is, based on the evidence of our own eyes, a fabrication.'
A cross-examination would not proceed as a block of questions, but one question at a time, drawing the doctor by degrees into a trap, powered by the contradictions between his testimony on the one hand, and common sense and visual evidence on the other. A cross-examination would have been enriched by mistakes the doctor surely would have made as he stumbled into self-contradiction, trying to hold together his fabricated story in the face of persistent questioning backed by filmed evidence. It is quite possible that the doctor would have broken down, admitting he was lying.
I am not a lawyer, and I do not have the benefit of the transcript of the Muslim doctor's testimony, just what I read in the newspapers and in Deichmann's article. But, based on Deichmann's description, I am convinced that, in the hands of a skilled attorney, the doctor's testimony would *not* have ended up being, as Deichmann put it, "without question the most moving of the entire trial." And it might well have ended up being the biggest disaster for ITN.
By taking the direction I have suggested, that is, by challenging the jurors to think, LM and Deichmann might have gotten a different verdict. Certainly, they couldn't have gotten a worse verdict. (They lost....) Whatever the outcome, if they had taken this approach, they would have won a victory against the media campaign to smear the Serbs.
In cross-examining one of the ITN reporters, LM-Deichmann could have said, "ITN, Penny Marshall, Ian Williams (or whomever), you produced fake pictures about Trnopolje in 1992. Now you produce a witness who supposedly gave you other pictures. Why should we believe these are real?"
Instead, Deichmann says: "I never disputed these facts [about the Serbs]."
Facts? Phooey! With opponents like Deichmann, ITN didn't need lawyers!
Note added following the publication of this article
After LM lost the libel case, Emperor's Clothes was contacted by an Australian opponent of the media campaign against the Serbs. This fellow offered to finance an appeal. At his request, I phoned Thomas Deichmann and LM publisher Mick Hume and offered to organize a support committee and hire a lawyer for said appeal. Deichmann was hostile. My article had just appeared and he accused me of libel. (Ironic, don't you think?) He didn't want even to discuss an appeal. Mick Hume was more pleasant. But he was uninterested in appealing the verdict. He said it was "time to move on," or words to that effect. Later I learned he had been given a job as a first tier columnist with the London Times, you see. The Times has been one of the worst culprits in the media war against the Serbs.
The struggle to combat media lies that are used to spread racist ideas is an unequal struggle. Never has there been a media as powerful as today's media empires, and the opposition is weak, and often it is a phony opposition. It is a sucker game, stacked by the liars.
However, the exposure of lies is the most powerful weapon there is. Nothing has more appeal than the brave exposure of lies used to justify injustice and racism. LM and Deichmann proved this when they stood up to ITN. Nothing I am saying is meant to - or could - diminish what they did.
ITN responded by raising the stakes. Ruthlessly attacking LM, including with the libel suit, the Establishment, through ITN, offered Deichmann and Hume the following 'deal': 'You may give token resistance during the trial, but you must desert the Serbs. That is what we're interested in. If you desert them, we will bankrupt LM, but we will leave you alone afterwards, and indeed, you may find that you prosper. If you do not desert the Serbs, you will find that you do not prosper.'
Were a few carrots dangled in front of the collective noses of LM and Deichmann? Mick Hume apparently started working as a columnist at the London Times just after the trial ended. Suggestive timing....
It is a shame, of course, but let us not waste time crying over spilt heroes. Let us glean what we can from the LM-Deichmann capitulation, and, as Mr. Hume suggests, let us move on.
The bad news is that the LM-Deichmann legal strategy hindered the jury - and therefore, the public - from changing their minds about the Bosnian Serbs. The good news is that juries vote for what they feel is morally just, and that, my friends, is why I believe, in the long run, the truth can prevail.
Below is Thomas Deichmann's apologia for the LM libel trial.
-- Jared Israel
Libel for False Television
Translated by Max Sinclair for www.emperors-clothes.com
On March 14th 2000 the "High Court" in London found the Chief editor of the British magazine LM (previously Living Marxism ) along with its publisher Helene Guldberg and her publishing house Informinc guilty after eleven days of court room proceedings in a stressful libel case. They were sentenced to pay fines of 75,000 pounds sterling to the British news channel Independent Television News (ITN) and 150,000 pounds to two of its reporters, Penny Marshall and Ian Williams. The defendants were also ordered to pay the plaintiffs' legal fees - an additional 300,000 pounds. The total fine is calculated as more than one million US dollars. After the reading of the verdict Mike Hume and [publisher] Helene Guldberg said they would have to declare bankruptcy.
Another immediately implemented part of the punishment had the effect of shutting down most of LA's Website ( www.informinc.co.uk ) the same day. A few hours after the conclusion of the legal battle LM received a letter from ITN asking when payment of the fine could be expected.
Censor for Rent
A tragic chapter in modern media history was brought to an end by this case. It may just usher in a new Era. London, the "Mecca of the Libel Suit", was used for the first time by a mighty media corporation as a type of censor to knock an unloved and weaker opponent out of the running. The arrogant behaviour of ITN, represented during the hearing by Chief Editor Richard Tait, Penny Marshall and Ian Williams, is a harsh blow to every journalist. It is also a warning to investigative reporters whose job it is to go against the mainstream and to help bring difficult truths to daylight.
The publication of my article "The Picture that fooled the World" in the February 1997 edition of LM was the catalyst which began the saga. This article had already been printed in highly regarded European publications and been copied many times over. In it I showed in great detail that the famous ITN-pictures of an emaciated Bosnian Muslim behind a barbed wire fence taken at the Bosnian Serb camp of Trnopolje in August 1992 was a fake.
ITN and its reporters received much-desired prizes for this story. Since 1992, they have been continually praised for the high quality of their work. The trip to the High Court was also an attempt to bolster ITN's reputation which had come under attack by a growing number of critics in the last few years. ITN also suffered from a shrinking audience.
ITN's victory left a foul aftertaste - so openly did the media giant attempt to manipulate the process. Immediately after the verdict, ITN set its PR-apparatus in motion in order to newly publicize the story. Statements by both reporters and the news channel tried to leave the uninformed viewer with the impression that the Judge found that the LM-Article of February 1997 was incorrect. The situation is actually reversed of what ITN tried to convey.
ITN Reporter behind barbed wire
In my 1997 article, I showed, in great detail, first that there was no barbed wire fence surrounding Trnopolje and the Muslims filmed there. Second, that the barbed wire on the (in)famous ITN pictures belonged to an old Train station beside the so-called camp grounds. Third, that the British reporters stood inside this property surrounded by barbed wire and from inside there filmed the (in)famous pictures. Third, that nowhere else in Trnopolje did any barbed wire exist. And fourth, that the conclusions made by politicians and the media worldwide, that Trnopolje was a concentration camp similar to Auschwitz or Bergen-Belsen was based on a hoax.
The first three aspects of the case were proved during the hearing on the libel suit. In particular, the original uncut ITN film was helpful. This was the same film I used in my analysis in Autumn 1996. The fourth point, that Trnopolje was not a concentration camp, was not contested in the hearing. None of the witnesses argued that Trnopolje was a concentration camp. Judge Morland gave his summary the day before the end of the case and stressed to the jury that the reporters were surrounded by a barbed wire fence in August 1992 :
Judge Morland then said: "But does this matter at all to the case ?" He reminded the members of the jury what this Libel case was about. The central question which the jury had to decide on was: In the eyes of the court did LM lie when it said that the ITN reporters deliberately published a misleading photo ?
The case therefore did not rest on whether the photos were misleading; instead it concerned whether the reporters publicized the photos with intent to deceive. At the beginning of his summation the Judge stated his agreement with my investigative reporting. However, he then defined the situation of the violation in an exceptional way:
"...Worthy Jurors, you may think that it is necessary in a democratic society that Journalists are fearless investigators of injustice. You will especially note how exceptionally important it is that Reporters are faithful to the truth and fairness. It is proper that a Journalist should say so when he discovers another Journalist has been sloppy, unfair, and irresponsible.
"But you should not think that the case which stands before you revolves around whether Penny Marshall or Ian Williams were sloppy, unfair, or irresponsible. The key question in this case is, did the defendants prove that Penny Marshall and Ian Williams deliberately - and I stress the word deliberately' - create irresponsible television pictures..."
Nick Hyham, media director of the BBC, recapitulated the explanation of the Judge in a news commentary on the day of the verdict in the following manner:
".....The Judge said, LM described the events correctly, but that didn't matter in the issue...."
The verdict ignored the underhanded tricks ITN and both reporters availed themselves of in their libel suit against LM. It strengthened the repressive English libel laws that are considered so frightening inside media circles. It established the libelous connotation of my article, an accompanying leader by Mick Hume, and a LM press release circulated in January 1997. LM is said to have claimed that ITN and its reporters deliberately and with full knowledge lied to the world. Actually, I am of the opinion that the reporters must have known exactly what they were doing at the time. However, this was not the thrust of my article.
ITN put itself on center stage of the suit because the ITN lawyers, Biddle & Co., knew that in this manner they could not lose the libel suit. The fact that in English libel law the burden of proof lies with the accused (further indication of the absurdity of this law) meant that LM had to prove the bad intentions of the ITN reporters in order for the court to decide in LM's favour. The verdict did not come as a surprise to the LM team. Publisher Mick Hume commented:
"...We had to prove the unprovable....."
Despite all this Gavin Millar, LM's attorney, worked to convince the jury of the correctness of my article. He also exerted himself to establish that the two ITN reporters must have know that at the time they took the (in)famous pictures that they were on the small property surrounded by barbed wire.
No one, with the exception of Penny Marshall's cameraman, could answer the question just how Ian Williams was able to go from the fenced-in property to the open field just to the west of it; even though it is plain to see on the ITN video tapes. Williams, as the first witness in the case, answered he simply ran around the corner. He also could not remember when confronted with the ITN pictures which clearly showed how impossible his written description was of the barbed wire fence and the length of the west side of the area. At the end of his testimony, on the fourth day of the court room proceedings he stated that it was a "lie" that the reporters were surrounded by barbed wire.
During the testimony of the next witness, only a few hours later, Judge Morland intervened and gave his opinion that after viewing the ITN tapes many times, he was convinced that the reporters were indeed surrounded by barbed wire. He advised the ITN lawyer not to waste any more time on the matter. On the next day, Ian William's sound man offered a new version of the story, that William's team had come through the fence somewhere further south of the open field, possibly through a hole in the fence, which somehow never showed up on the ITN tapes.
Penny Marshall also had memory lapses specifically regarding the fenced in property, even though it was uncontested that she entered through a hole in the fence from the south side. She could neither remember that she was surrounded by barbed wire nor could she remember how she exited the fenced in property.
Gavin Millar, LM's attorney, was prevented from posing the question to the ITN reporters whether it had ever crossed their minds at the time (August 1992) that the (in)famous pictures of the emaciated Muslim taken behind barbed wire could trigger comparisons with the Holocaust. He also was forbidden to ask if they realized that their images represented a major scoop given the widely disseminated speculative reports of possible "Concentration Camps" and "Death Camps" in the North. Millar succeeded numerous times entangling the ITN employees in misstatements - but he was unable to prove ITN's deliberate manipulation.
Disappearing Videotapes and Defense Witnesses
One of factor was that the most important video tape was lost by the ITN archives. This tape showed Penny Marshall surrounded by the barbed wire fence. Only a short sequence of this tape could be seen in the courtroom having been taken from a news program in August 1992. The complete uncut tape remains lost. It would surely be able to show how Penny Marshall moved around the fenced in property and how she commented on the situation. The first time the subject of the disappearing videotape came up an uproar ran through the courtroom audience.
The video tape of a Bosnian-Serbian cameraman in Military uniform, which was shot on the same day as Penny Marshall Trnopolje filmed could not make up for the loss of the ITN tape. However, it did show that Penny Marshall interviewed two other men before she waved her hand at the emaciated man with the exposed upper body and called out a friendly greeting. This directly contradicted her presentation in the ITN news show and in later interviews.
One of the men in blue overalls interviewed introduced himself as Mehmet. He repeatedly stressed when questioned by the British reporter, that the Trnopolje Camp was not a prison but a refugee center and he felt safe there.
At the beginning of the process the ITN lawyer was able to invoke the English censorship law, to the effect that all further witnesses for the defense were shut out of the case. The most prominent was John Simpson, BBC World Affairs Editor, one of the most highly regarded reporters in the world. Former War Crimes expert and publicist Philip Knightley, author of the book "The First Casualty," was also denied the opportunity to take the witness stand. In addition, the London Queen's Counsel Steven Kay was also shut out from testifying. For good measure, the scope of my own testimony was severely limited.
Just before it was published in the Spring of 1997, LM's publisher issued a press release announcing my article. As ITN's chief editor Richard Tait admitted on the witness stand, nobody at ITN had even read the article at that point. Nevertheless, they instituted legal action on the spot to get all copies of that issue of LM destroyed.
Then, in addition to the charge of libel, ITN tried sue LM for "malice." They used the malice suit as a vehicle for attacking my article, calling it insulting and false, saying it had been written for the sole purpose of spreading pro-Serbian propaganda. As proof, they provided a list of LM articles on the Balkan crisis. Included was an excerpt from my interview with Austrian novelist, Peter Handke in the Spring of 1996.
The malice suit allowed the spreading of vicious lies and gossip. For instance, I was a paid agent of the Serbs; I was married to one and so on. This despite oft-repeated protestations that I had no such connections to the Serbs and supported none of the parties in the Bosnian Civil War. Ed Vulliamy, the Guardian reporter who accompanied Penny Marshall's crew to the North Bosnian camp in August 1992, contributed by writing hysterical defamations.
The malice charge was thrown out by Judge Morland. ITN's lawyer Shields didn't object because it was obviously indefensible. It is clear this charge was only added to the libel suit in order to foster the smear campaign.
ITN lawyer Tom Shields stressed, during the trial, that the miserable condition of Trnopolje was noteworthy. The plaintiffs brought also as a witness a Muslim Physician who the guards forced to care for the camp's inhabitants in the Summer of 1992. At the time he was also interviewed by Penney Marshall and secretly gave her a camera with poorly lighted photographs on a undeveloped film. The photos showed spotlighted Bosnian Muslims who had been beaten and mishandled by the Serb guards. The Physician described on the witness stand the rape and assault of defenseless civilians. I never disputed these facts. His testimony was without question the most moving of the entire trial. Despite this, my impression was that this only influenced the Jury enough to score a few moral points for ITN. LM attorney Millar declined a cross examination and later asked me if I wished to speak with the Physician. I answered no.
The witness testimony of the Physician and remarks and questions of Tom Shields all pointed in the same direction: to awaken a specific impression. This impression was that I wished for Serbs, who were guilty of such evil acts, to be somehow left unpunished."
In a similar manner this attitude was brought home to me in the past few years by Journalists with a mission to Save-The-World from Baddies. These journalists had left behind their professional discipline in every one of their Balkan articles which were filled with their eccentric moralizing. If not filled with their blend of moral fever, then the articles consisted of a demented world full of genocide and mass graves. LM publisher Mick Hume during his testimony that he welcomed the publication of my article in LM, because it questioned the misuse of the Holocaust for political ends. By equating the Bosnian Civil War with the Holocaust the history of the 20th century was finally rewritten.
Refugee Center or Prison
The ITN lawyer exerted himself to question my description of the Trnopolje camp as a refugee center in which many Muslims sought safety from the bloody Civil War going on around them. During my testimony it became clear that Tom Shield, despite his hectoring me with morally laden catch phrases, didn't have the slightest idea what had happened during the Bosnian Civil . Trnopolje was surely a frightening place, but it was also surely not a Prison and most surely not a concentration camp.
Some of those who were there at the time in August 1992 revise their own analysis of the events the further the Bosnian War recedes into the past without presenting any new interpretations or facts. For example, ITN at the time the film was made reported that the group of Bosnian Muslim men on the other side of the barbed wire were not free to leave the camp which was surrounded by heavily armed guards. I never verified this report. More importantly I was able to verify that these men had arrived from another camp, shortly before the British reporters arrived, and were waiting to register for a place to sleep. This explanation of the situation was confirmed through interviews with these men on the ITN tapes and the statements of independent observers.
In her Television report of August 6, 1992 Penny Marshal said herself that these men had come from another camp and had been brought to Trnopolje. That refugees could leave the camp at any time they so desired was stated in my article as well as confirmed from many other sources.
I also accurately described in my article that in the area of the Trnopolje camp there were other fences (low wire mesh fences that enclosed small properties, a low metal fence which surrounded the school building). These fences were also documented in a sketch which accompanied the LM article. A lonely barbed wire fence also stood next to the old Train Station with the old roadbed.
Sword of Damocles
The barbed wire parcel in the ITN film in which the reporters found themselves became the critical detail for people to have proof that concentration camps existed in Bosnia. The single positive outcome of the courtroom proceedings at the High Court in London was that it was finally proved beyond a shadow of a doubt that neither the camp nor the filmed Muslims were surrounded by barbed wire. Rather, it was the journalists who were surrounded by barbed wire as my article had shown. On the other hand, the verdict spells the end of LM and now hangs like a sword of Damocles over every English journalist. LM, a sassy, opinionated magazine with intelligent if contrary reporting was brought to ruin. One can hope that other media organizations and journalists will not follow the ITN example. Instead, we hope they follow the example of publications like LM and its creators. One can also hope that reaction to the case strengthens the reform of or perhaps even the abolition England's libel laws.
These laws will never stand the test of the European Human Rights Commission in the European Unification process. One time an American Court refused to support a English Court's libel judgment because it ran so contrary to the libertarian tenor of the American Constitution. Richard Tait, Penny Marshall, and Ian William should be ashamed of their manipulation and direction of the entire process. TD
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