Michigan Law Review Volume 105 Issue 6 2007 Settler's Remorse Floyd Abrams Cahill, Gordon & Reindel LLP Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Legal Ethics and Professional Responsibility Commons, Litigation Commons, and the Military, War, and Peace Commons Recommended Citation Floyd Abrams, Settler's Remorse, 105 MICH. L. REV. 1033 (2007). Available at: https://repository.law.umich.edu/mlr/vol105/iss6/1 This Foreword is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. FOREWORD: SETTLER'S REMORSE Floyd Abrams* 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 are 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."' But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Some- times, 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. I. 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 com- mitted 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 * Partner, Cahill, Gordon & Reindel LLP; William J. Brennan, Jr. Visiting Professor on First Amendment Issues, Columbia University Graduate School of Journalism. I wish to thank my associate Jasand Mock for his valuable assistance in the preparation of this Article. I. Hubert L. Will et al., The Role of the Judge in the Settlement Process, 75 F.R.D. 203, 203 (1978). 2. Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984). 3. I may, in fact, have negotiated fewer settlements than have many other seasoned lawyers since a number of media entities that I have represented have no-settlement policies in libel and related cases. 4. HOWARD BLUM, WANTED!: THE SEARCH FOR NAZIS IN AMERICA (1977). 1033 1034 Michigan Law Review [Vol. 105:1033 an investigator for the Social Security Administration. Both examined the activities of Tscherim Soobzokov. DeVito's attentions centered on allega- tions 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 pay- ments 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 natu- ralized 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 Un- ion, near the Black Sea. According to the book, Soobzokov had been an Obersturmfuehrerin 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."' 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 gun- point."'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 5. Id. at31. 6. Membership in the SS was itself determined to be a war crime in the 1946 Nuremburg Trials. 22 INTERNATIONAL MILITARY TRIBUNAL, TRIALS OF THE MAJOR WAR CRIMINALS NUREM- BERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 516-17 (1948), available at http://www.yale.edu/ lawweb/avalon/imt/proc/09-30-46.htm (last visited Jan. 25, 2007). 7. BLUM, supra note 4, at 57. 8. Id. at 58. April 2007] Settler's Remorse 1035 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 form a 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.'° 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." 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." 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 ad- vancing Russians and the retreating German troops, whom they abhorred equally."'3 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."'' 4 There, a Circassian General provided him with protection, issuing him "[an] identity card and [a German army] uniform as a disguise."'5 To protect him further, Soobzokov maintained, the Circassian 9. Id. at 56. 10. Verified Complaint, Soobzokov v. Blum, Index No. 1927/77 (N.Y. Sup. Ct. Feb. 10, 1977). 11. Complaint, Soobzokov v. CBS, Inc., No. 78 Civ. 4908 (S.D.N.Y. Oct. 18, 1978) [herein- after Complaint (S.D.N.Y)]. 12. There were some changes in the paperback version of the book. Omitted was a statement that Soobzokov's name had been included in a list of fifty-nine individuals identified by the World Jewish Congress as Nazi war criminals living in the United States. The error in the original text was of little moment, however, since there was no disagreement about the fact that the INS had itself prepared and publicly released in 1974 a list of alleged Nazis that included Soobzokov's name. Id. 28. In 1976, the INS terminated an investigation it had commenced about Soobzokov without taking any action against him. 13. Id. T 10. 14. Id. 12. 15. Id. 14. 1036 Michigan Law Review [Vol. 105:1033 general caused Soobzokov's name "to be enrolled on a roster of [a] non- operational Caucasian Waffen6 SS organization, approximately two months before the end of the war.' 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 H as a disguise, "for the sole purpose of protecting and shielding his group of refugees from the Germans"; 7 he had committed none of the specific war crimes the book attributed to him; and, in fact, he had com- mitted no war crimes at all.