Over the years, the powerful anti-Castro activist had weathered numerous negative news reports. Journalists had delved into Mas's alleged CIA connections, they had attempted to link him to covert operations in Latin America, they had brazenly expounded upon his psychological makeup, and they had probed the finances of the foundation and other organizations with which it is allied.
But no one had ever called him a mobster.
The New Republic did so three times: once on the cover, again at the article's opening as a subheadline ("Jorge Mas Canosa: mobster and megalomaniac"), and once more in the text of Bardach's lengthy piece: "People do not like Mas but they fear him.... These days, he barely bristles when called a demagogue, a bully, a mobster and worse."
In fact, 56-year-old Mas has never been criminally charged with anything. From his point of view, the magazine's use of the "mobster" appellation alone was an outrage. The article itself was hardly any better.
And the timing couldn't have been worse. Just two months earlier President Clinton, after meeting with Mas and other Miami community leaders, had embraced Mas's policy recommendations in dealing with that summer's burgeoning crisis of Cuban rafters heading for Florida by the thousands. It had been a moment of vindication for Mas, a resounding answer to critics who had long griped that he was too authoritarian, too inflexible, too prone to caudillismo, too similar in temperament to his nemesis, Fidel Castro.
Now the Washington, D.C.-based publication had revived those criticisms for the benefit of its 100,000 readers, many of whom are Beltway insiders with little knowledge of Cuban exile history and no conceptual context within which to measure the article's hyperbolic claims. (Bardach characterized Mas's relationship with Clinton as a "Faustian deal." She quoted a South Florida writer who claimed that "Mas was born and bred by the CIA" and linked with such legendary spooks as covert operations master Theodore Shackley and Miami's Felix Rodriguez, the man credited with the capture of Che Guevara.)
"The article calls our client a criminal; more than that it calls him a mobster, which is an organized crime leader," wrote Mas's attorney Hank Adorno in an October 4 letter demanding an apology and a retraction. "The article accuses our client of a variety of other abhorrent, anti-democratic and anti-social activities, from controlling the main Cuban radio stations in Miami and access to them to using them to encourage others to engage in violence, vandalism, and other malicious or dangerous conduct. The article...states that our client is, like the prototype mobster, a person willing to engage in criminal and other illegal behavior, and is malicious and vindictive. Thus it recounts repeated instances in which people who 'cross' our client suffer the consequences one would expect to suffer when one crosses a mobster: losing their careers or jobs, being physically or verbally abused, or living in fear of such acts of retribution. The article characterizes our client as a friend of convicted criminals and others who engage in immoral, if not criminal conduct.
"The article is a smear," Adorno concluded. "It is the essence of yellow journalism, written by a person with no regard for the truth or responsible journalism."
Filed a few weeks later on November 18, 1994, Mas's defamation lawsuit listed Bardach and The New Republic as defendants and cited 40 examples of objectionable text. Although initially filed in state court, the lawsuit was subsequently transferred to federal district court because Bardach is a California resident.
Miami attorneys Paul Schwiep and Jeffrey Crockett of Aragon Burlington Weil & Crockett, and Richard Ovelmen of Baker & McKenzie, are defending Bardach and The New Republic. Representing Jorge Mas Canosa are Adorno and Raoul Cantero from the Miami law firm Adorno & Zeder. (Sanford L. Bohrer, who represents New Times on First Amendment issues and is a former law partner of Adorno, was erroneously recorded in federal court as one of Mas's attorneys.)
The allegedly libelous materials were so voluminous that defense attorneys initially estimated they would need two full years to prepare for trial. In an effort to expedite the lawsuit, Judge Edward Davis split the discovery phase of the case into two parts. (During discovery, the opposing sides exchange information and interview named parties and witnesses.) The first phase would consist of research to establish whether Mas was a public figure, making it more difficult for him to win his claim, and also to determine whether the article was published with "malice" A that is, with a "reckless disregard" for the truth. The second phase would be devoted to all other aspects of discovery.
During the initial discovery phase, which ended two weeks ago, Mas and his lawyers documented some of the most lamentable foibles of modern American journalism: a fascination with scandal, an embrace of stereotypes, inadequate research varnished with facile prose, and stunning leaps of inductive reasoning. Meanwhile, the other side was able to force Mas to hand over many of the documents that would have justified a hard-hitting examination of his activities. It has been one of those rare instances in which arrogance and hubris collide with equal force.
The depositions themselves have been uncommonly combative, prompting attorneys for Bardach and The New Republic to ask the court to instruct Mas's lawyers to tone down their rhetoric. For example, during a hearing before federal Magistrate Barry Garber this past February, the attorneys claimed that Hank Adorno had been so abusive during his questioning of Bardach that they had been forced to abruptly terminate her deposition. In addition, they said, while Adorno was questioning Andrew Sullivan, the magazine's former editor, the attorney launched into a profanity-laden tirade so vicious that the court reporter fled the room.
Deposition transcripts also show that Adorno frequently made insulting remarks to the opposing attorneys. He told Jeffrey Crockett, for instance, that he "got an A for reading," after Crockett recited portions of the article during Mas's deposition. Adorno also commanded Paul Schwiep to "keep typing" on his laptop, adding sarcastically: "That's what you're good at."
Additionally, Schwiep recounted, "I was told that I shouldn't call myself a Cuban because it was a disgrace to the community."
"You shouldn't call yourself a what?" asked the bewildered jurist.
"A Cuban," Schwiep repeated. "I'm Cuban, judge, and proud of that heritage."
"I have had the opportunity to review the transcript...and quite frankly I think Mr. Adorno's conduct is inappropriate," Magistrate Garber commented during the hearing. Turning to Raoul Cantero, one of Mas's lawyers, who also happens to be a grandson of Fulgencio Batista, Garber said, "You know, there's no need to cast aspersions at counsel, make snide remarks. That's just totally inappropriate and unnecessary, and it's not going to be tolerated."
The idea for Bardach's story grew out of a Washington, D.C., dinner party in June 1994 at the home of journalist and policy pundit Christopher Hitchens. According to Bardach's deposition, the dinner guests, among them New Republic editor Andrew Sullivan, began talking about the emergence of moderate anti-Castro groups. "There had been a human rights report that had come out about the abuses in the Miami community, that people of different opinions weren't allowed to express their opinions," Bardach said. "There were accusations of everything from harassment to intimidation to outright murders.... We were talking about human rights in Cuba, human rights in Miami. It was this kind of basic conversation, you know, mostly dealing with freedom-of-speech issues."
Sullivan suggested that Bardach write a story about the Miami exile community. Months later, when Jorge Mas Canosa emerged as the key exile figure during the Cuban rafter crisis, the focus of the piece shifted to him. At the time Bardach knew little about Mas. She had seen a 60 Minutes segment about him and had read a profile published in Esquire magazine. Both were highly critical.
A 46-year-old screenwriter and freelance journalist, Bardach had begun writing about Cuban-related topics in 1993, when she published a story in Vanity Fair about a woman who claimed to be have once been Fidel Castro's mistress. Subsequently Bardach obtained a rare personal interview with the Cuban strongman. (Last year she won a PEN USA West award for an interview she did with Mexican guerrilla leader Comandante Marcos.)
To prepare for her new assignment, Bardach said in her deposition, she read hundreds of newspaper articles. She also said she interviewed more than 80 people, including half a dozen reporters and editors at the Miami Herald, confidential government sources, and leaders of other anti-Castro groups. She admitted, however, that 90 percent of her article was based on previously published reports, and that in particular she relied heavily on the research of South Florida writer Gaeton Fonzi, an author and former researcher with the House Select Committee on Assassinations.
Bardach did not interview Mas's business associates, and did not speak to any of the 100-plus directors and trustees of the Cuban American National Foundation (CANF), although she asserted in her deposition that "the opinion that I gathered from most people is that Mas and CANF are interchangeable; that he runs that organization, you know, lock, stock, and barrel...and that there's very little dissent of opinion within the organization. I say that based on my interviews with three or four former directors."
When Hank Adorno quizzed Bardach for names, she conceded that she had actually spoken to only one former director. She had simply read the deposition of one antagonistic former director taken during an unrelated lawsuit and had looked over interviews Fonzi had conducted with Raul Masvidal, one of the organization's founding members who is now a vocal critic of Mas.
In attempting to sound out current CANF supporters, Bardach limited her efforts to two men in charge of public relations and to Joe Garcia, a former foundation executive who left in order to accept an appointment to Florida's Public Service Commission. Bardach also said she tried to talk to Mas himself, enlisting Garcia as an intermediary and appealing to Mas's personal secretary -- to no avail.
For his part, Mas insisted under oath that Bardach made no effort to get in touch with him. "Who is Joe Garcia?" he wondered aloud during his deposition. "I don't recall who Joe Garcia is, but no, I haven't gotten any request from Bardach to talk to me....Joe Garcia is a very common name."
Bardach's article begins with Mas's August 1994 meeting with Clinton: "When Jorge Mas Canosa sauntered out of the White House Cabinet Room on August 19 A following a 90-minute meeting with the President of the United States, he was irrepressibly gleeful. Although the combative, scandal-plagued mega-millionaire has long dominated Miami and, to some degree, Florida politics from the bully pulpit of his coffer-rich Cuban American National Foundation, Mas had just pulled off the coup of his career -- dictating America's new Cuba policy."
From Bardach's deposition:
Hank Adorno: Tell me the source or sources of the factual information which is included in the first paragraph of your story.
Bardach: Some of the sources that I can recall at this moment are the Miami Herald, and the actual facts of the meeting were in the Miami Herald...and somebody I spoke to at the State Department.
Adorno: And who's that?
Bardach: He wishes confidentiality.
Adorno: Was that person at the meeting?
Bardach: I don't know.
Adorno: Did you ask him whether he was at the meeting?
Bardach: I don't recall.... Everybody learned of the meeting very quickly. It spread through the exile community here instantly. And I talked to people at Cambio Cubano about it. [Cambio Cubano is a Cuban-exile group philosophically at odds with CANF.]
Adorno: The Cambio Cubano individuals...were any one, either one of those individuals at the meeting?
Bardach: No, they heard about it through the grapevine.
Adorno: Did you seek to interview any of the individuals that actually attended the meeting, other than Jorge Mas Canosa?
Bardach: No, I relied on the Herald.
Adorno: What do you mean by the word sauntered?
Bardach: You know, walked out, you know, walking but with a bit more of a lilt in the walk.
Adorno: And who described him? You didn't see him walk out, did you?
Bardach: I was told he was very, very pleased with himself.
Adorno: Who told you that?
Bardach: The State Department and the Cambio Cubano people.
Adorno: None of which were at the meeting?
Bardach: I'm not sure about the State Department, so yes, that's the answer.
Other, more controversial passages in Bardach's article relied on similarly vague or biased sources. For example, she claimed that CANF had "pulled off the feat of securing millions of dollars from government grants, funneling the funds through its various umbrellas and PACs, such as the Free Cuba Committee, and then paying much of it out to favored politicians and causes."
From Bardach's deposition:
Adorno: What millions of dollars have they secured from government grants?
Bardach: This is based on the research and published work of John Nichols in the Nation, [a politically liberal weekly], and other published sources.
Adorno: First of all, did you do any independent research to determine what government grants -- meaning did you go to the governmental agencies and speak to them, or did you just get this information from a published source?
Bardach: Published sources.
Adorno: All I'm trying to establish is that you're going to find out almost all of that is incorrect.... Was it your intent in these two sentences to state that CANF, using its nonprofit, tax-exempt status, gets [government] grant money and then somehow funnels it to political causes?
Bardach: Yes, the point being that there have been published articles questioning the nonprofit status of CANF because of its political lobbying, to the extent of its political lobbying. And this is just a reference to all that material that has been written about that aspect of CANF.
Adorno: Do you know whether CANF has an audited financial statement by a Big Six accounting firm?
Bardach: I do not know.
Bardach's reporting technique -- imaginative extrapolation from news accounts -- led to a series of minor errors in her article. For example, she stated that Clinton received almost $300,000 in "Mas-controlled Cuban exile money" after attending a fundraiser at Victor's Cafe. The accurate sum was about half that amount. During her deposition, Bardach admitted she did not speak with Jorge Perez or Paul Cejas, organizers of the event. "I did not investigate who was the fundraiser, who hired the hall, who paid the bills," she said. "All I know is that [Clinton] left with contributions and pledges for a significant amount of money."
"Of which you attribute to Mas, correct?" asked Adorno.
"To Mas's friends and associates," replied Bardach.
Other errors ran the gamut from trivial (the location of Mas's home and placing Joe Carollo in office when he wasn't) to the serious (claiming Mas "dismissed" a Radio Marti executive who in fact resigned, and misstating Mas's position regarding the detention of Cuban balseros).
Still more mistakes were contained in passages characterized as defamatory by Mas and his attorneys. For instance, Bardach described Mas as "a good friend" of anti-Castro terrorist Orlando Bosch, "who served eleven years in a Venezuelan prison for blowing up a civilian Cuban airplane."
As Adorno pointed out during Bardach's deposition, Bosch was acquitted by the Venezuelan Supreme Court because of lack of evidence. "I wasn't even aware of the acquittal at that time," Bardach responded. "I didn't learn about the subtle perambulations that happened later. All I knew at that time was that he had done the jail time. I operated under the assumption that you don't do long sentences unless you are convicted." Bardach admitted she did not review any court records or speak to either Bosch's lawyers or the prosecutors involved.
Other sections of the story alleged to be defamatory were less clearly false, but were nevertheless hotly contested by Mas.
From Mas's deposition:
Crockett: (reading from the article) "Throughout the 1980s, Mas was a staunch supporter of [William] Casey's covert ventures in Latin America." Does that harm your reputation, sir?
Mas: Yes.
Crockett: How does that harm your reputation?
Mas: I was not a supporter of Casey, or the CIA, or any activities down there because I did not know them.
Crockett: (reading from the article) "'Mas was born and bred by the CIA,' says Gaeton Fonzi, a Miami-based writer and authority on Mas who has covered Cuban exile politics for two decades." Does that sentence harm your reputation?
Mas: Yes, sir.
Crockett: How does it harm your reputation?
Mas: I have never been a member of the CIA. I never been hired, I never been born and bred by the CIA, I never done anything for the CIA.
Crockett: What is wrong with being involved with the CIA's activities that harms your reputation, sir?
Mas: This is not my line of business.... I find that defamatory. It's a false statement.
Crockett: Do you believe that Cuban exiles in Miami, which were associated with the CIA, have their reputations damaged by that association?
Mas: I don't know.
Crockett: The next sentence, sir, states, "'He's a master of psychological warfare. Bill Clinton didn't have a prayer once he agreed to dance with Mas.'" Does that sentence harm your reputation?
Mas: One at a time.
Crockett: You can break it up.
Mas: "He is a master of psychological warfare." That's false. Not true.
Crockett: Does that harm your reputation?
Mas: Yes.
Crockett: How does that harm your reputation?
Mas: I'm not a psychological warfare master. I'm a businessman.
During Bardach's deposition, she emphasized that her principal sources were newspaper articles and writer Gaeton Fonzi, who provided her with the quotation about psychological warfare. But she also relied on individuals well known for their opposition to Mas and on Miami friends with no particular expertise. For example, she recounted that a casual conversation led her to believe that Mas supported covert operations in Chile. "I walked into my friends' apartment, who are Cubans here living in Miami, and they were watching [a talk-show host] interview Mas Canosa," she said, "and they told me he had just expressed his support and admiration for Pinochet, a Chilean -- the dictator, the former dictator of Chile. And they said that he had said something about, that he felt that, the feeling he expressed was that Pinochet was a good role model for what was needed in Cuba."
Even if Mas could prove that Bardach's reporting was negligent, it would be of little help to him legally. As Miami libel expert Tom Julin observes, the notion of malice as it would apply in this situation (assuming Mas is found to be a public figure) "is not about [a reporter's] duty to conduct an investigation; it's about what was going on in a reporter's mind."
Thus the discovery phase of the lawsuit may prove far more beneficial to Bardach and her lawyers than it will to Mas. Because he objected to such a broad range of material in the article -- involving statements that encompass virtually every aspect of his life -- the defense lawyers are justified in seeking almost anything they want.
Indeed, Crockett and Schwiep have energetically pursued everything from documents that indicate Mas intended to do business with communist China to paternity allegations made against him by a woman who says she was once his lover. (That case was chronicled in a May 23 New Times cover story, "Love and Cuba.") Mas's lawyers have objected to such wide-ranging discovery, but Judge Davis has generally ruled against them.
Since June 1995, lawyers for Bardach and The New Republic have submitted six requests for documents, including one demand that included 96 different categories of material. The defense lawyers have asked for:
"Any and all documents related to Oliver North."
"Any and all documents relating to the hiring, retention, or use of private detectives by Mas or CANF for the period from 1985 to 1995."
"Any and all documents relating to the income and expenses of Mas for the period from 1985 to 1995, including bank accounts and checks."
"All documents that refer or relate to any communications, discussions, dealings, or contacts of any nature between Mas and any prosecution or law enforcement authorities (state or federal) regarding any criminal conduct or potential prosecution of any individual, including Mas."
"All documents relating to all lawsuits in which Mas has been a party or a witness."
Mas's attorneys balked. "Some of the defendants' requests...simply go too far," wrote Adorno in a court pleading. "They either request production of a vast array of documents, without limitation as to time or scope, or they seek documents totally unrelated to the issues of this lawsuit." In particular, Adorno opposed releasing Mas's tax returns, information about hiring private detectives, and lawsuits, which he maintained were public record and thus readily available to the defendants and their counsel.
In response, Crockett pointed out that at least one civil suit involving Mas and his brother Ricardo inexplicably was missing from the Dade County Courthouse, indicating that public records regarding Mas may be unreliable. "This is a lawsuit that the plaintiff filed," Crockett argued. "And the certain amount of airing of his dirty laundry is the necessary result.... We're entitled to complete discovery on whether he's involved in any criminal conduct."
Schwiep maintained that Mas's use of private detectives was relevant because Bardach's article stated that during Mas's 1992 battle with the Miami Herald he "told the paper's top brass that he had hired private detectives to investigate them and their children."
Schwiep wrote: "Mas's utilization of private detectives to investigate opponents (and possibly supporters) is directly probative of the article's allegedly libelous portrayal of Mas as manipulative, intolerant, and intimidating."
In an order issued this past December, Magistrate Garber ruled that Mas did not have to produce his financial documents at that point in the case, but he did order Mas to produce the other disputed items, with the provision that material related to private investigators would first be reviewed by Garber in his chambers before being admitted as evidence in the case.
By this past January Mas had turned over more than 300 pages of confidential personal information, as well as boxes of material related to the Cuban American National Foundation, including membership contribution statistics, Mas's correspondence with foundation executives and editors at the Miami Herald, the foundation's advertising budget during Mas's battle with the newspaper (for the "I Don't Believe the Herald" campaign), paperwork relating to various grants received from the National Endowment for Democracy, and internal foundation memos.
As word of the lawsuit spread, other people began providing information to the defense team. Anonymous packages began showing up. Former Mas associates telephoned and volunteered their cooperation.
Among the most damaging material in the court file today is a deposition from Mas's estranged brother Ricardo, which repeats allegations Ricardo made during the course of a libel suit filed in 1987. Mas's younger brother alleged that Jorge Mas had made cash payments to Dade County commissioners and one state senator in return for political favors, and that he had evaded taxes by keeping money in offshore bank accounts. He also alleged that Mas bestowed gifts (including cash) upon Southern Bell executives.
Ricardo Mas repeated those allegations this past April 16 in a deposition taken as part of the The New Republic lawsuit. In addition, Ricardo alleged that in the early Eighties Mas reached an agreement with a Broward-based business competitor not to compete for contracts in each other's territory. The alleged pact may have violated federal antitrust laws.
Lawyers for Bardach and The New Republic also requested the release of materials gathered in 1990 by a federal grand jury that allegedly investigated Ricardo's claims. In addition, they demanded that Mas turn over all his passports from 1985 to present and his "telephone books, Rolodex, telephone log or similar compilation of names, addresses, and telephone numbers for the period from 1985 to present."
"The defendants have pursued a scorched-earth strategy for litigating this case," Cantero wrote in protest. "They have adopted the position that because the plaintiff emphatically denies he is a mobster, they are entitled to discovery about virtually every aspect of his personal life."
Magistrate Garber disagreed. "Among the issues in this cause are whether [the] plaintiff is a 'public figure,'" Garber noted. He reasoned that the documents could "shed light on such issue" by revealing Mas's "community status" through his association with government and media officials. Mas has since declared that he could not find anything except his passport from 1991 to 1996. The request for the 1990 grand jury material is pending.
Ultimately the case comes down to the definition of defamation and how it applies to someone like Jorge Mas Canosa. Were the glib phrases written by Bardach capable of defaming him? Were they produced with a reckless disregard for the truth? Can he show how he was injured? Did it ruin Mas's reputation to be associated with the CIA, to be described as intimidating, to be accused of misusing government grants? Should the word "mobster" be considered libelous on its face?
Former editor Andrew Sullivan explained in his deposition that when he wrote "Clinton's Miami Mobster" he did not mean it in the literal sense that Mas was involved in organized crime. "I thought of it as somebody who was clannish, controlling, intimidating," Sullivan said. "Those were the sort of features that stood out for me."
During Mas's deposition, the defense lawyers asked what "defamation" meant to him personally. "Defamatory in my opinion is when you print a lot of lies about me and you call me a mobster," he said. "That's my definition of defamation. You have defamed me.
