Foreword: settler's remorse.

• Author: Abrams, Floyd

INTRODUCTION

Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts ate overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, "the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement." (1)

But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss has observed, parties "settle while leaving justice undone." (2) While few of the settlements I have been involved with can be so described, (3) one has plagued me since I participated in negotiating it twenty-five years ago. Now, in light of very recent and deeply disturbing revelations, it plagues me still more.

1. WANTED!

   The case involved a claim of libel. In January 1977, Quadrangle/The New York Times Book Company ("Quadrangle") published WANTED! The Search for Nazis in America. (4) Written by Howard Blum, a former New York Times reporter, the book focused on a number of government agents who had sought to collect evidence about four people who had entered the United States after World War II, and whom they suspected of having committed war crimes.

   The book described first the investigative efforts of two men on behalf of the U.S. government. One, Anthony DeVito, was an investigator for the Immigration and Naturalization Service (INS). The other, Reuben Fier, was an investigator for the Social Security Administration. Both examined the activities of Tscherim Soobzokov. DeVito's attentions centered on allegations that Soobzokov had committed war crimes in Russia and elsewhere in Eastern Europe during World War II. Fier's investigation focused officially on allegations that Soobzokov had demanded and received illegal cash payments in connection with the reimbursement of certain disbursements of Social Security benefits, and unofficially on allegations of war crimes.

   A resident of Paterson, New Jersey, since 1955, Soobzokov was a naturalized American citizen and a leader of the local Circassian community of several thousand people. Circassians, predominantly adherents of Islam, are natives of a mountainous area in the southern part of the former Soviet Union, near the Black Sea.

   According to the book, Soobzokov had been an Obersturmfuehrer in the Waffen SS, the military arm of the State Security Forces of the Nazi regime, during World War II. He was, the book claimed, "the equivalent of a first lieutenant in a Nazi mobile killing unit that had participated in the murder of 1,400,000 Jews on the Eastern Front." (5) The book quoted a number of sources who accused Soobzokov of war crimes. (6) One alleged eyewitness, Kassim Chuako, recalled the following:

   "When Germans came he went to secretary of police and asked to join. We all talk about him. We saw him going into the villages with the Germans and rounding up people--Communists and Jews. I saw him with the SS troops that took people away. In 1943, I saw him again in SS uniform in Rachovich in White Russia. He was talking to secretary of refugee camp, telling him that he wanted to take his relatives out. When the secretary said no, he pulled his gun out of the holster and led his family out by gunpoint." (7)

   Another survivor of the German invasion of the Soviet Union, identified in the book as Mahimid Neguch, recalled the following:

   "Soobzokov's father-in-law introduced me. And then Soobzokov walks up, head high, and he is in full uniform, an SS uniform. Then I see him weeks later. He is with a group of SS men taking prisoners from two towns in the Caucasus, Edepsuikay #1 and Edepsuikay #2. Three boys were killed from that town and Soobzokov was there with the group that executed them. We were all witnesses." (8)

   Six other witnesses were referred to in the book as having seen Soobzokov in an SS uniform. One of them, Issa Hoket, described Soobzokov in June 1944, standing in an SS uniform, telling Circassian refugees that the Germans had appointed him to forma new unit to fight alongside the Nazis. When Hoket told him that he would not fight with the Germans, two German SS officers stepped forward to tell the Circassians that Soobzokov had been chosen to be their "fuehrer." (9)

   Read as a whole, the book left little doubt that the author and the sources he relied upon viewed Soobzokov as a Nazi war criminal.

   In February 1977, shortly after publication of the book, Soobzokov commenced a libel action in the Supreme Court of the State of New York against Blum, Quadrangle, and various sources cited in the book including Chuako, Neguch, and Hoket. (10) A second action was filed shortly thereafter against Quadrangle, Blum, and others in the United States District Court for the Southern District of New York. (11) When the softcover edition of the book was published in 1978, containing charges similar to those set forth in the hardcover version, Soobzokov commenced a new libel action in federal court against Quadrangle and Blum. (12) Quadrangle and Blum retained my firm to represent them in the cases.

   According to Soobzokov, all the relevant allegations against him were false. He had, his complaint alleged, "led a group of Circassian and other Russian refugees comprised of men, women and children through various countries in Europe [during World War II,] seeking to avoid both the advancing Russians and the retreating German troops, whom they abhorred equally." (13) While leading the refugee group in November 1944, he had been arrested by the Germans in Hungary, and had been tortured and beaten by the Nazis. He traveled "from Hungary to Germany to seek protection and aid against the Germans." (14) There, a Circassian General provided him with protection, issuing him "[an] identity card and [a German army] uniform as a disguise." (15) To protect him further, Soobzokov maintained, the Circassian general caused Soobzokov's name "to be enrolled on a roster of [a] nonoperational Caucasian Waffen SS organization, approximately two months before the end of the war." (16)

   Soobzokov's own summary of his activities was unequivocal: he had never actually served as a Waffen SS officer; he had never participated in any Waffen SS organization; he had worn the SS uniform only briefly towards the end of World War II as a disguise, "for the sole purpose of protecting and shielding his group of refugees from the Germans"; (17) he had committed none of the specific war crimes the book attributed to him; and, in fact, he had committed no war crimes at all.

   What of the statements published in the book from the supposed eyewitnesses? The first, from Kassim Chuako, described Soobzokov "rounding up people--Communists and Jews," and leading the family of the secretary of the refugee camp "out by gunpoint." Blum's notes from his interview with Chuako fully supported the text. (18) The second statement, from Mahimid Neguch, described Soobzokov taking prisoners and killing three boys. Blum had not only notes to support what he had been told and had published, (19) but corroboration of the events from another source. (20)

   Soobzokov responded by maintaining that all the sources had either been misquoted or had lied. He argued that Blum had mistaken Kassim Chuako for his brother Mischuest, an error Blum acknowledged but dismissed as inconsequential. (21) Mischuest Chuako in turn flatly denied personally having seen Soobzokov participate in any SS atrocities on the Eastern Front. (22) Likewise, Neguch testified in his deposition that he had not been in Edepsuikay #1 or Edepsuikay #2 during the war, (23) that he "couldn't" have told Blum that Soobzokov was at Edepsuikay #1 and Edepsuikay #2, (24) and that he did not, in any event, make any such statement. (25)

   After years of discovery, we moved in 1983 for summary judgment, arguing that Soobzokov was both a public official and a public figure and that he could not prove that the book had been published with actual malice. (26) The stark disagreement between the parties regarding the truth of the charges against Soobzokov made the legal determination by the courts as to whether he was a public official or public figure (27) all the more important. If Soobzokov were to be so designated by the courts, he could not recover unless he proved by clear and convincing evidence that the book had been written and published with actual malice--actual knowledge of its falsity or a high degree of awareness of its probable falsity. (28) If he were a private figure, the issue of actual malice would not arise with respect to the determination of liability. (29)

   Depending upon...