CNN Still Suffering From Legal Fallout Over Tailwind

It gets worse for CNN.

The cable network last year fired two producers, sacked correspondent Peter Arnett, split up its investigative team, issued a public apology to veterans and the estate of Richard Nixon, plastered a harsh retraction on its Web site and installed a new quality control vice president, yet its Operation Tailwind debacle refuses to stay safely consigned to the past.

CNN’s questionable investigative exposé of a 1970 covert military mission has continued to have a colorless, odorless but devastating effect on the news network, not unlike the gas it contended U.S. forces had dropped on American defectors in Laos.

In the year since it aired the report, CNN has already paid costly settlements to 11 veterans who appeared on it. The network still faces nine defamation suits, filed in courthouses in Atlanta, San Francisco, Washington, D.C., Little Rock, Ark., and other places. On July 20, a judge in Washington, D.C., ruled over CNN’s objections that two of the nine suits can proceed and depositions should begin.

The most damaging of them may well be the suit filed by one of its own-or, more exactly, formerly one of its own-April Oliver, the producer fired over the broadcast. Her combative courtroom strategy and tone is set to collide with CNN’s legal goals. The resulting messy court embarrassment is likely to cost CNN mightily in its pocketbook, raise afresh questions about the network’s integrity and plunge its employees back into doubt and defensiveness.

That has a tangle of high-priced lawyers and their flock of associates busy in the CNN offices, dredging up videotapes and voluminous papers generated during Ms. Oliver’s research.

Waiting for them are eager plaintiffs’ lawyers such as Keith Mitnik. Mr. Mitnik represents Maj. Gen. John Singlaub, retired, commander of the U.S. military’s covert Studies and Operations Group in the 1960′s and later Lieut. Col. Oliver North’s Iran-contra sidekick. In one section of the broadcast, General Singlaub was featured describing why it was desirable to kill defectors. His segment was then followed by charges that nerve gas was dropped on defectors and women, and children were killed during the mission. “I suspect we’ll begin taking depositions in the next 90 days,” Mr. Mitnik said from his skytop office in downtown Orlando. Fla. “There’s going to be Peter Arnett and April Oliver, Ted Turner, Tom Johnson and Rick Kaplan. Aw, there’s going to be a multitude. The deposition phase will involve between 20 to 40 depositions.”

Not only will all these people be cross-examined by war veterans who believe that CNN put out lies just to make a splash. They will also have to contend with Ms. Oliver, who knows the network from the inside. She believes the real lies came after the broadcast, when CNN was scrambling to cover its ass.

Titled “Valley of Death,” CNN’s report unflinchingly leveled the alarming charges that in September 1970, American elite soldiers covertly used sarin nerve gas on U.S. servicemen who had defected to the enemy. The June 7, 1998, report ran as the kickoff of the NewsStand program, a collaboration between CNN and Time magazine that was CNN-USA president Rick Kaplan’s great hope for a regular prime time audience, one that his bosses figured would showcase Time Warner synergy. Instead, soon after it aired, Henry Kissinger and Colin Powell phoned up to say sarin gas was never dropped, Soldier of Fortune magazine staged a pair of angry press conferences and veterans cluster-flamed Ted Turner’s e-mail address. (“If you have any more information,” Mr. Powell gently advised CNN chairman Tom Johnson, “you should get it out there.”)

At first, the network stood firm, even airing a second broadcast the following Sunday reoffering its premise, with additional corroboration. CNN’s top lawyer, David Kohler, who had vetted both programs, wrote a 16-page memorandum detailing CNN’s sourcing. So sure was he, he wrote, that in one instance he had authorized the use of “confirmed” over the more prudent “corroborated.” He reportedly remarked to a group of producers that the script was “bulletproof.”

But as the attacks on the report continued, the network took a step back. It hired First Amendment lawyer Floyd Abrams for an internal investigation. Assisting him was, of all people, Mr. Kohler. After 10 days of reviewing the merits of the program, the lawyers issued a 55-page assessment that concluded the producers’ reporting over eight months and 200 interviews had been, at best, inconclusive, leaving the allegations “insupportable.” It concluded: “A decision was made by CNN to broadcast accusations of the gravest sort without sufficient justification and in the face of substantial persuasive information to the contrary.” Later, Mr. Abrams said “the problem with the broadcast was never that its producers had doubts about it. It was that they did not.”

That prompted CNN’s retraction of sorts-a mea culpa that conceded the network had not nailed down the story before going with it. But the network insists that it is not guilty of defamation-that any errors were inadvertent and don’t constitute actual malice, meaning they weren’t done with reckless disgregard for the truth.

Nonetheless, CNN canned the report’s two producers, Ms. Oliver and Jack Smith, and requested that the supervising producer, Pam Hill, resign. Mr. Arnett, the narrator of “Valley of Death,” has since left for ForeignTV.com after CNN let his contract lapse.

Then the lawsuits began to roll in. A Charleston, S.C., lawyer named David Collins called up CNN on behalf of 10 Tailwind veterans, five of whom had been quoted and five of whom had been just pictured on the report. He sat down with Kevin Baine, a lawyer from Washington-based Williams & Connolly, and by November the two had cut a deal. Reportedly, the $750,000 settlement meant $100,000 for those who were quoted and $50,000 for those who were merely pictured. CNN also paid out $150,000 to Adm. Thomas Moorer, a key source for their report who later claimed his remarks had been improperly framed.

CNN has been in fight mode ever since. The lawyer in charge of keeping this bumpy case under control is Chris Bogart, Time Warner’s 34-year-old whiz kid general counsel-elect, who has strong ties to Time Warner president Richard Parsons. (He won’t take over as the company’s top lawyer until next year, when Peter Haje steps down.) This is Mr. Bogart’s maiden effort at high-profile crisis management and he’s relying on his recently arrived litigation sidekick and fellow alumnus of Cravath, Swaine & Moore, 33-year-old Ed Weiss. Nicole Seligman, one of President Clinton’s lawyers in the impeachment trial who is with Williams & Connolly, is steering the case day to day, along with associate Thomas Hentoff (son of Nat), with Mr. Baine joining in as necessary. The Observer asked one defense lawyer whether Tailwind was no big deal for Ms. Seligman, who is obviously used to matters complicated. “Not this complicated,” said the lawyer, who asked for anonymity. “This is an unusual set of cases in many ways.”

CNN might want to thank Ms. Oliver for that. The litigation got more tangled and interesting this past June, when she filed her suit charging defamation, breach of contract, fraud and intentional infliction of emotional distress-in other words, that CNN generally hung her out to dry. “Many of the so-called ‘errors’ in the broadcast are actually attributable to the CNN managers,” she asserted in her 71-page complaint. “By blaming Oliver for these decisions and then firing her to appease high-level military officials, CNN maliciously destroyed Oliver’s reputation as a journalist.”

Ms. Oliver’s attorney is Roger Simmons of Gordon & Simmons of Frederick, Md. Mr. Simmons represented Larry Flynt’s friend Dan Moldea in his unsuccessful suit against The New York Times .

The suit leaves CNN and Time Warner over a strategic barrel. CNN’s easiest defense against General Singlaub would be to blame Ms. Oliver. But she will do everything in her power to prove that, in fact, the story was properly reported and sourced according to the highest journalistic standards, throwing the legal responsibility back into CNN’s court.

If Time Warner defends the value of her work, they look two-faced for firing her. If they attack her as incompetent, she will undermine them and throw the blame back to the network.

And her court papers show that Ms. Oliver is aiming for the big guns at CNN. She asserted in her complaint that drafts 14 through 44 of the script were circulated, including to CNN-USA president Rick Kaplan. She has accused network chairman Tom Johnson of public and private fibs: He told interviewer Steven Brill that she and Mr. Smith had persuaded him, before broadcast, of the show’s bona fides. (Ms. Oliver said she never personally spoke to Mr. Johnson during the Tailwind research until he called to fire her.) She also claims that Mr. Kaplan assured them the Abrams-Kohler report that damned their work would not be released until they had a chance to respond.

Ms. Oliver is sure also to revisit the tormented statements that Mr. Kaplan made during the Tailwind panic. He reportedly said, “This is just a P.R. problem, it’s not a news problem.” He told the American Journalism Review , “I should have just said ‘We’ll hold it.’ I should have just said, ‘Never mind that Smith and Lane and Hill and Connor and legal and Time magazine are all happy.’”

Then there’s Mr. Kohler, the CNN lawyer. “He was not the kind of attorney to tell you what you can’t do. He helped you accomplish your goals. If you’re doing investigative reporting, that’s what you want,” said Ed Turner, a former CNN news executive. But his turncoat lawyering, reviewing a program he had vetted, could leave him vulnerable. Ms. Oliver, of course, believes he put in the Abrams report what he thought the CNN executives wanted to hear.

“CNN, Time Warner and CCC [the insurance carrier] all have an interest in subverting the truth in this case,” she wrote in her suit against the insurance carrier. “CNN and Time Warner’s reputation in the media will be impaired if the truth comes out that it capitulated to the military establishment’s demands over a story which was properly substantiated.”

Beyond the likely factual conflicts are serious strategic questions about Ms. Oliver’s tone. Martin Garbus, who served briefly as her lawyer until Mr. Bogart asked him to step aside, said her friendliness could be crucial to CNN’s defense. “Let’s assume the plaintiffs are saying Rick Kaplan knew such and such about the work. She can be up there and say, ‘He had to know this because I sent him an e-mail,’” Mr. Garbus said. “Or she can say it a different way: ‘I would assume he knew it because I sent him a message, but it’s possible he didn’t get it.’ One implicates CNN executives and the other doesn’t.”

Mr. Mitnik and his client sound ready to go away for the right amount of cash: “I don’t know, you would think they would want to do the right thing and right a wrong. They’ve acknowledged that story should never have gone forward. If they now lay down their gauntlet and go to war, then we’ll go to war.”

Paying off Mr. Singlaub wouldn’t end the case, though. Procedural rules hold that a case cannot be dismissed until the cross-claim is tried. Which means Ms. Oliver’s wrongful dismissal case and its allegations against CNN higher-ups get decided first.

Ms. Oliver sounds like she won’t settle, despite the financial pinch that has followed the loss of her $60,000 CNN salary. (Her husband is a nonmedical neuroscientist.) “I finally came to the conclusion that I wanted to push it the whole way, take it to court and not take any little out-of-court settlement, to get it out in court for my reputation,” she said.

She has spurned Williams & Connolly’s two offers of a joint defense agreement, in which the two parties would cooperate in certain areas. On July 27, Williams & Connolly asked the court to sever Ms. Oliver’s wrongful dismissal case, and send it to a court in Georgia. On Aug. 2, a Washington, D.C., judge ruled that Time Warner is obliged to pay for her lawyers and consolidated both of her complaints before the same judge.

Meanwhile, the hostility between CNN and Ms. Oliver would appear to be rising. On July 8, Ms. Oliver filed a second suit (25 pages), alleging that CNN, through its insurance company, has tried to coerce her cooperation by controlling her choice of lawyer. A letter included in court papers bolsters that allegation: In it, company lawyers demanded that she split from the first lawyer she chose (Mr. Garbus, who represents The Observer ); offered her only two choices of a replacement, both with links to Williams & Connolly; and suggested that the insurance carrier might stop coverage, putting at risk payment to her approved lawyer. “The whole thing is so twisted, I think they thought all along that I was a person who could be manipulated, that they’d give me a fancy name lawyer and everything would go O.K. for them,” she said.

The pretrial has already set off legal squabbling in the CNN camp. Mr. Kohler has stepped back, allowing his supervising lawyers in New York, Mr. Bogart and Mr. Weiss, to control CNN’s defense. For example, one early settlement offer was resolved by the New York team, not Atlanta. (The offer by General Singlaub’s lawyer was rejected.) “There’s a certain amount of tension between the Kohler group and the Bogart group,” the lawyer said. “I think the New York group believes Kohler didn’t distinguish himself very well with how he handled it.” Put another way, he helped draft a handy, free, expert opinion on the inadequacy of CNN’s work to any plaintiff who wants it.

Ms. Oliver has had her own legal tensions. After she was told to drop Mr. Garbus, she was represented by Michael Nussbaum, Seymour Hersh’s lawyer. She grew wary, feeling he was too chummy with Mr. Baine of Williams & Connolly. “I decided I needed someone completely out of the K Street corridor,” she said. Her concerns about him ended up in her complaint.

“The allegations in the complaint in so far as they relate to me are either entirely false or seriously misleading,” said Mr. Nussbaum, who has been squabbling with her since May. “The notion that I am somehow in a conspiracy with Williams & Connolly is absurd. Or with CNN. I’ve never spoken with Chris Bogart. And I’ve never spoken with CNN and Time about this case. Never, ever.” He declined to discuss with The Observer other details from the lawsuit.

Ms. Oliver’s former colleagues are gritting their teeth at the thought that they’re going to have to relive one of journalism’s black eyes of 1998. “I have a colleague, he jumps through the roof whenever he hears April Oliver’s name,” said a CNN correspondent, who insisted on anonymity. “He says that if he reads one more time in the paper that she’s a good journalist, he’ll shoot the author.” Office fact-gathering has already begun. “I was interviewed by Nicole Seligman in April as a precautionary measure,” said one peripheral contributor to that broadcast. “She mostly wanted to know what I knew and when I knew it, a lot of it just basic facts.”

Down in Orlando, Mr. Mitnik was gearing up for a broad, lingering battle. “Their lawyer at Williams & Connolly represented at a hearing there were maybe 2,500 documents, I don’t remember how many, it may have been 10,000. It was a big number. Thousands. Days’ worth. Two hundred videotapes.”

The case hinges ultimately on Ms. Oliver’s ability to prove she speaks the truth, or something reasonably close to it. If she can’t convince a jury, she-or more likely CNN-will be held responsible for airing knowingly false statements.

“The Tailwind report was clearly false,” asserted Mr. Mitnik. “The acts of killing women and child didn’t happen, they never used sarin gas, and there was no hunting of American defectors. General Singlaub never called in any B-52 strikes to kill any soldiers to avoid embarrassment. He did not use lethal chemical weapons. He did not commit war crimes, as he was specifically accused.”

Ms. Oliver remains unbowed. She said she is not surprised at the parade of special forces veterans now saying that she forced words into their mouths: “It’s hardly surprising that some Tailwind sources are now recanting when they can win cash prizes from CNN.”

Her reputation tarnished by the affair, she said she’s had a difficult time finding work. She’s applying to law school.