You are a very important person. But before your ego can deflate and you can start spending the prize money, some journalist writes a book accusing you of complicity in the government-sanctioned murder of innocent people. What to do?
If you're Henry Kissinger, you shrug your shoulders, denounce the accusations as absurd, and go about your business of preserving Soviet-American hegemony until Ronald Reagan can become president.
If you're David Trimble, the first minister of the yet-to-be-formed coalition government in Northern Ireland, the head of its largest Protestant party, and the co-recipient of the 1998 Nobel Peace Prize, you adjust your orange sash, denounce the charges as absurd, and--because you still live in the United Kingdom--sue or threaten to sue everyone in sight for libel, including the publisher, the journalist, and any U.S.-based online bookseller who dares offer the book for sale in the U.K.
Does this mean David Trimble is more thin-skinned than Henry Kissinger? Not exactly. It simply means that, in the name of the First Amendment, the libel regime in the U.S. actively discourages public figures from seeking legal redress against the media when they claim they are defamed. If you don't like what the media say, the Supreme Court says your status as a public figure will afford you a forum to issue your denials. But in the U.K, if you're a defamed public figure and you don't sue, you're perceived as a cowardly wimp or guilty as charged. Probably both.
Although there's only one book out there saying bad things about David Trimble, he's going to have to stand in line at the courthouse to sue. The 1998 book, The Committee: Political Assassination in Northern Ireland, and a 1991 British TV documentary also called The Committee have been the subject of no fewer than eight separate libel lawsuits, seven in the U.K. and one in the U.S., where it is a bestseller with more than 60,000 copies sold. (See "Tracking the Suits," page 42.)
The book's author is British journalist Sean McPhilemy, who was also the executive producer of the documentary that started it all when it was broadcast on Britain's Channel 4. The central thesis of the book and the program is that, starting in 1989, a committee consisting of high-ranking members of the Protestant establishment in Northern Ireland, including lawyers, businessmen, politicians, and ministers, used the services of Protestant paramilitaries in a terror campaign against Catholic targets in Northern Ireland. Victims were located and identified by members of the Royal Ulster Constabulary (London's Ulster police force), who, says McPhilemy, at best looked the other way or, at worst, actively assisted the hitmen. Trimble is accused in the book of being an associate of The Committee, rather than a member, and of providing political cover for its activities.
The implications of both the book and the litigation surrounding it are significant.
Of immediate importance is its impact on the Northern Ireland peace process, which, as this is written, is a shambles. That's either because 1) Trimble has refused to allow the formation of a new Northern Ireland government that includes representatives of Sinn Fein (the political wing of the Irish Republican Army), as envisioned by last year's Good Friday Agreement, or because 2) the IRA has refused to commence the decommissioning of its arms, also part of the agreement. Take your pick.
The litigation will also provide a vivid contrast between the British and American libel regimes and how they handle what is essentially the same case. While libel defense lawyers in both countries prefer the American system with its many First Amendment defenses, the much-maligned British system may well go much further than the American in uncovering the truth about the sensational allegations. Finally, because U.S.-based online booksellers have been sued in the United Kingdom, the litigation may determine whether the U.K. libel regime's age-old custom of effectively banning a book by threatening a libel action will survive in an age of e-commerce.
By McPhilemy's account, the "Ulster Central Coordinating Committee" was an outgrowth of Protestant reaction to what they considered a "betrayal" by Margaret Thatcher in 1985, when Britain gave the Republic of Ireland a limited role in speaking for the Catholic population of Northern Ireland. There also was a growing frustration within the Protestant establishment and the RUC itself that the hands of the security forces were being tied by politicians in London. The IRA wasn't impressed by the Thatcher initiative and continued its relentless campaign of terror against Protestants, including prominent Protestant businessmen who, by the IRA's definition, had "collaborated" with the authorities by selling them goods or services. More extreme Unionists (so called because they traditionally supported union with Britain), including a then little-known university law lecturer named David Trimble, urged Ulster's independence from Great Britain, a view shared by The Committee. For the record, all the members of The Committee who are identified in the book have denied the group's existence.
In his book, McPhilemy identifies 18 victims whose murders were allegedly sanctioned and organized by The Committee between February 1989 and September 1991. All of these murders are officially "unsolved." This terrorist campaign, whether or not directed by The Committee and assisted by the RUC, continued to be chillingly effective. In 1992, the hit squads killed nearly twice as many Catholics as the IRA did Protestants. A serious IRA peace initiative followed in 1993.
McPhilemy's largely circumstantial evidence regarding Trimble is based on Trimble's alleged close association with many persons identified as members of The Committee, and on Trimble's efforts, in response to the documentary (which identified no Committee members by name), to discredit it and McPhilemy. Trimble attacked the documentary in interviews and, with full legislative immunity, on the floor of Parliament. McPhilemy interviewed his primary confidential source, James Sands, extensively on several occasions, including a lengthy videotaped interview in which he claimed to have sat on The Committee itself. According to McPhilemy and his investigators, the details of his story and his background checked out. He was who he said he was--a close political associate of many of the people he identified as being on The Committee.
As for the case against McPhilemy, it rests on the fact that the Royal Ulster Constabulary was able to identify James Sands as the source and, after substantial interrogation, to persuade him in 1992 to recant his Channel 4 interview. Unfortunately for the RUC, they didn't have access to the complete transcripts of Sands' interview with Channel 4, whereas McPhilemy was able to obtain from a U.S. court a complete transcript of the RUC's interrogation of Sands. In his book, McPhilemy examines in careful detail both the initial Sands interview with Channel 4 and the RUC-induced retraction and easily demonstrates the credibility of the initial version.
Additionally, Sands met with McPhilemy's American and British lawyers earlier this year and signed an affidavit confirming that his original interview was true and accurate and his retraction to the RUC was induced by threats. Yet in subsequent interviews with the British press, Sands has again recanted (albeit not under oath). Moreover, McPhilemy had another anonymous source within the rogue element of the RUC who confirmed details of collaboration with anti-Republican terrorists (though not the existence of The Committee itself). McPhilemy claims to have more former RUC members as sources as a result of further research for the book. One of those has been identified in court papers as former RUC Sgt. John Weir, who claimed that an alleged Committee member, Belfast solicitor Richard Monteith, told him in December 1998 that "the book was basically accurate" and contained only "small mistakes."
McPhilemy himself was a respected investigative journalist before producing The Committee. But he was not political, never having done an article or program on Northern Ireland. As a former colleague wrote earlier this year in The Financial Times, "McPhilemy, a Catholic who is married to a Northern Ireland Protestant, had deliberately made no programmes on sectarian strife in his native province because he was pessimistic about political progress and disinclined to immerse himself in the intransigence and bigotry that prevailed on both sides of the sectarian divide."