Tailwind Lessons   

Finding truth and context in wartime is a tough job.

Long before Operation Anaconda, there was Operation Tailwind.

On June 7, 1998, "Valley of Death," the inaugural episode of "NewsStand: CNN & Time," alleged that during the Vietnam War, the U.S. military launched a secret mission called Operation Tailwind that used nerve gas against American defectors in Laos. The journalists who prepared the story relied on a variety of sources, some confidential (see "An Ill Tailwind," September 1998).

On July 2, CNN issued a retraction, based on a report prepared by First Amendment attorney Floyd Abrams and then-CNN inside counsel David Kohler, which concluded that there was insufficient evidence to support the allegations--a conclusion hotly contested by the reporters involved. Both the retraction and later discussions of it on shows such as "Talkback Live" acknowledged "serious faults" in CNN's use of sources.

They focused on one source in particular: Robert Van Buskirk, a Special Forces lieutenant who had been second in command in Operation Tailwind and was quoted extensively in the story. Citing the Abrams-Kohler report, the programs noted that the Tailwind story failed to state that Van Buskirk had not mentioned these topics in a book he wrote on the subject in 1983, and that he had been "taking drugs for a 'nervous disorder' for ten years though he finally stopped." The report found that Van Buskirk's actual knowledge about the use of gas was more limited than the story portrayed it to be and that "his certainty may well have been colored by some of the questioning of him." It concluded that "Van Buskirk played so central a role in the broadcast that these overriding questions put into issue not only what he said but the bona fides of the broadcast as a whole."

The Abrams-Kohler report laid out in uncompromising terms CNN's perceived dereliction of its journalistic duties. Perhaps not surprisingly, Van Buskirk sued for libel by implication.

Initially brought in North Carolina, his suit was transferred to the federal court in the Northern District of California for consolidation with six other libel cases. The trial judge dismissed Van Buskirk's case for failure to state a claim, and Van Buskirk appealed to the 9th U.S. Circuit Court of Appeals. He argued that the media defendants had used "coercive" interview tactics and "planted in his mind the belief" that the Tailwind mission was to kill American defectors. He also contended that his comments, although reported accurately, were taken out of context. Van Buskirk attacked the retraction stories as well, claiming he was defamed when CNN characterized him as the "primary source" of the Tailwind report, effectively blaming him for any inaccuracies. His reputation was further harmed, he argued, when CNN pointed out that his statements were inconsistent with his book and when it didn't make clear that the medication he had been taking was not "mind-altering."

On March 20, a three-judge panel of the Circuit Court affirmed most, but not all, of the district court's ruling. "The journalist's right to use aggressive and abrasive tactics in an attempt to ferret out information from reluctant individuals is well established," Judge Myron H. Bright wrote. And the panel ruled that under applicable North Carolina law, Van Buskirk could not be defamed by accurate reports of his words, despite minor "contextual discrepancies" which did not alter the gist of what he said.

The panel also concluded that Van Buskirk's status as a primary source was indisputable, as were the discrepancies between his book and his remarks to the reporters. These truthful statements could not form the basis for a libel suit.

However, the appeals court found that "in its zeal to shift all blame," CNN set out to make Van Buskirk appear unreliable by failing to mention that he had been off the medication for more than 10 years before the interviews. This may have created a false impression that Van Buskirk's use of medication was the cause of CNN's erroneous story, the panel said. It sent the case back to the trial court in North Carolina for resolution.

The Tailwind debacle began long before the current war on terrorism raised fresh controversies about secrecy and military operations. This ruling reminds us, in case we need reminding, that when journalists try to pierce the fog of war, the truth can be very difficult to discern.

Even truthful statements are not immune from libel suits if, through the omission of other pertinent facts, they create a false impression. Context, it seems, is everything. That principle applies to news reporting and analysis, too.

But how can journalists hope to provide a meaningful context when objective information is shrouded in secrecy in the name of national security?