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If Operation Tailwind were the Civil War, CNN would be fighting both the North and the South. That is the predicament the Atlanta-based television network finds itself in two years after it fired two producers and disavowed a broadcast accusing the U.S. military of using nerve gas during a covert Vietnam-era operation known as Operation Tailwind. On one hand, CNN is defending a $106 million wrongful termination suit, Smith v. Cable News Network, Inc., No. 1:00-cv-1643 (N.D. Ga. June 30, 2000), filed in U.S. District Court in Atlanta by Jack F. Smith III, one of two fired co-producers responsible for the broadcast titled, “Valley of Death,” but commonly known as the Tailwind report. On the other hand, CNN is facing litigation, In re Cable News Network, No. C99-20889 (N.D. Calif.), brought by a dozen members of the Army’s Special Forces who participated in Operation Tailwind. They say they were defamed by the broadcast and a subsequent article in Time. Both CNN and Time are owned by Time-Warner. CNN fired the two journalists who produced the broadcast, and publicly suggested the pair had played fast and loose with the facts. The broadcast suggested women, children, and American defectors were killed with Sarin gas during a covert attack on a Laotian village on Sept. 11, 1970. Tailwind participants claim the broadcast falsely accused them of war crimes. STRANGE PARTNERSHIP Now the network is in a curious position. It has allied itself with one of those journalists, former CNN producer April Oliver, to help defend itself against defamation suits filed by the Tailwind military personnel. CNN will have to rely on Oliver as a major part of its defense. That could help CNN — if it shows the journalists believed what they did was right and that they acted without malice or recklessness. But this strategy carries some risk because the journalists will most likely be asked how much management participated in decisions about the broadcast and why they decided to fire them. Meanwhile, CNN has settled a suit and separate cross-claim filed by Oliver, Oliver v. CNN, No. 99VS0154892 (Fult. St. June 9, 2000), that mirrored many of Smith’s allegations. Roger C. Simmons of Maryland’s Gordon & Simmons represents Oliver and Smith. He won’t comment on Oliver’s settlement, except to say Oliver is “very happy with it.” CNN has also settled with retired Maj. Gen. John K. Singlaub, who was then commander of the military’s Studies and Operations Group, which conducted covert operations, and Admiral Thomas H. Moorer, the former commander of the Joint Chiefs of Staff. Both were on-air sources in the broadcast and later claimed that their remarks were taken out of context. Robert M. Friedman, who represents two of the Special Forces members, says he’s delighted CNN plans to rely on Oliver as a witness. The network is in the position “of trying to have your cake and eat it, too,” says Friedman of the Memphis firm Friedman, Sissman and Heaton. “I hate to engage in a discussion of the intellectual dishonesty of the position of the plaintiffs in this case having now publicly embraced Ms. Oliver as a witness,” he says. “Ms. Oliver made it a point to place everything derogatory she could in public purview about CNN, Time, and her supervisors. . . . She can’t take that back. She literally condemned management for all the mistakes, all the problems. “If they want to place her on the stand as their witness and try to clothe her with credibility, they are also clothing with credibility her statements regarding CNN and Time magazine and their executives.” CNN lawyer Kevin T. Baine, a partner with Williams & Connolly in Washington, says asking Oliver to help defend CNN against charges that the broadcast was defamatory “would ordinarily be the case in situations like that in a broadcast when the producer is under challenge.” But, he declined to discuss how CNN will reconcile the decision to fire Oliver and Smith because of alleged errors in the broadcast with enlisting Oliver’s aid to defend it. “I don’t want to get into a public discussion of those issues,” he says. Smith, now living in Chicago, declined to discuss the case. In his complaint, Smith accuses CNN of disavowing the Tailwind broadcast to preserve its “exceptional access to military officials, decisions and activities.” “CNN management decided that the Tailwind report — about a covert operation 30 years ago — was not worth jeopardizing its valuable and lucrative contacts with senior military and Pentagon officials,” Smith’s suit claims. The journalists and military personnel take issue with a 1998 investigative report prepared for CNN by New York First Amendment attorney Floyd Abrams of Cahill Gordon & Reindel. Abrams’ report concluded that “CNN should retract the broadcast and apologize to the public and, in particular, the participants of Operation Tailwind.” Smith says the report defamed him, portraying him as an incompetent journalist who lost objectivity in his zealous pursuit of the story. At least one of the soldiers’ suits claims the report “was a ‘whitewash’ ” designed to absolve CNN management of liability. “Well, the report certainly concluded and I certainly believe that April Oliver and Jack Smith believed everything that they wrote and believed in everything that they did,” Abrams says in a telephone interview from London. “I think they worked hard and diligently and seriously and in good faith. At the same time, the conclusion of our report was that the broadcast was unsustainable. I continue to believe both those things. I don’t think they are at all inconsistent.” That conclusion certainly helps CNN defend against malice or recklessness, key elements of libel if the aggrieved parties are public figures or limited-use public figures. “That’s not why I reached the conclusion I did, but it’s true that a finding that CNN and its employees put this broadcast on in good faith certainly helps to negate any claim of actual malice,” Abrams says. Although Abrams was not involved in CNN’s settlement with Oliver, he says, “I can certainly understand the potential tactical desirability of doing so.” Oliver says she and Smith weren’t wrong. Oliver is now a law student at George Mason University in Arlington, Va., and recently made Law Review. She says she doesn’t know what CNN’s motive is in settling with her, but she suspects it is rooted in a sworn deposition that Moorer gave in the Singlaub case last January. In that deposition, taken Jan. 17, the 88-year-old admiral confirmed he had made each statement attributed to him in Oliver’s interview notes, including the following exchange, which he read aloud: “We are going to report that [the] U.S. used nerve gas in combat during Tailwind,” Moorer read from Oliver’s notes. “Will we be correct in saying this is the first time the U.S. used it?” “I said, ‘You might want to qualify that a bit.’ “How?” Oliver asked. “Well, I’m not so familiar with the European theater. But I think there might have been a few isolated pockets where poison gas was used,” Moorer continued. “You mean in World War II?” “Yes.” “Really?” “Yes, I think so.” “So we would be okay in saying first time in the Vietnam War?” Oliver asks, according to her notes. “Yes,” Moorer responded. “I think so.” Simmons, Oliver’s attorney, then asked the retired admiral, “So, to the best of your recollection, sir, does that accurately reflect what she [Oliver] asked you and what you said in December of 1997?” “Well, I think that by and large this was exactly the way — what I said — but I don’t understand the point of the question,” Moorer responded. Moorer also confirmed in his deposition that, in May 1998, a month before the broadcast aired, Oliver came to interview him again. According to Oliver’s notes, Moorer acknowledged that the Special Forces group involved in Tailwind generally targeted defectors. “So killing these defectors was the mission? And it was done to protect American lives?” Oliver asked. “Yes,” Moorer responded. “I have no doubt about that.” “Is that correct?” Simmons asked Moorer in the deposition after he read the exchange with Oliver aloud. Said Moorer, “I assume that.” Says Oliver, “He told us to go with it. We had it right. . . . It will be very hard for the men out in California to prove we acted recklessly, that we acted with malice. Oliver says she remains committed to setting the record straight. “When they throw money at Moorer, when they throw money at Singlaub, it makes it look like I did something wrong when I didn’t. I’m very, very committed to using the legal process to correct the public record where journalists failed. “We had a story approved by the chairman of the Joint Chiefs of Staff and we got crushed for going with that story,” she says. “It all goes down to the corporation not having the will to stay the course.” Oliver says she gave the broadcast script to Admiral Moorer to read, and that he approved it. The admiral has acknowledged that Oliver showed him the script but said he neither read nor approved it. Jack C. Doppelt, an associate professor at Northwestern University’s Medill School of Journalism, says CNN never should have fired Oliver and Smith. “I never understood that, and thought it was excessive,” he says. “In this case, firing Oliver and Smith to me did not make the corporate leadership at CNN look any better. It made them look worse. They acted in a way that made it look like they were scapegoating two people.”

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