by Lewis Sorley
Even so, he concluded, "as for the substance of the broadcast, that enemy strength in the Vietnam War had been intentionally undercounted, nine former military and intelligence officers, on their own volition, had made that allegation, and none had recanted. I was convinced that if opposing views had been given more time, which they were entitled to, the thrust of the program would have remained the same, and it would have been a stronger broadcast."
Also there was a critical incontrovertible fact, "a damaging disclosure" admitted by Westmoreland himself in the Mike Wallace interview, noted Benjamin. "Westmoreland dropped a whole category of the enemy—the self-defense militia, a force of 70,000—from the order of battle, thus skewing the enemy-strength total."32
What was dropped by Westmoreland in fact amounted to much more than that. In a sworn affidavit Major General McChristian recalled the estimates put the "political order of battle at 88,000 and the irregulars at 198,000," for a total of some 286,000.33 But later, when the matter went to trial, Westmoreland said under oath that "certainly there was no ceiling involved in the actions that took place. I could have cared less whether a few more of this and a few more of that."34
Having carefully examined the program and how it had been developed, and documenting a multitude of unethical and unprofessional practices involved, Benjamin nevertheless concluded that the essential story had been on the mark. "I think the piece itself is accurate," he wrote, "that it faithfully represented what went on back in 1967 and 1968."35
Later Benjamin wrote his own book about the documentary, at one point recalling the testimony of Brigadier General George Godding and noting that "under vigorous cross-examination, he conceded that the enemy-strength figure he was carrying to the CIA meeting at Langley could not be exceeded without permission from Saigon. In spite of all the semantics," concluded Benjamin, "it certainly appeared that there was a ceiling or cap dictated by MACV, as the Vietnam program had asserted."36
General Bruce Palmer Jr. was later asked whether Brigadier General Phillip B. Davidson Jr., the MACV J-2, had been involved in putting a ceiling on the enemy order of battle. "Sure he was," said Palmer. "Westmoreland put it on."37
ON 13 SEPTEMBER 1982 Westmoreland sued CBS, Mike Wallace, George Crile, Van Gordon Sauter (later dropped from the suit), and Sam Adams for libel, asking $120 million in damages. David Halberstam suggested that Westmoreland "sued CBS not just because he felt the documentary had done him damage but also because he wanted a second chance at history, a larger vindication."38 That might help to explain why Westmoreland ignored or overrode all those who sought to dissuade him from bringing the lawsuit, and indeed why he had agreed to be interviewed for such a program in the first place. He was still trying to shape the historical record on Vietnam.
Several experienced and prominent attorneys who wished Westmoreland well had advised him not to file such a suit, explaining that the bar of proof for a public figure was just too high and that the odds against success were thus very long. These included Clark Clifford, Edward Bennett Williams, and Stanley Resor. Said General Walter Kerwin, "Bruce Palmer and I got together and tried to talk him out of it. He wouldn't listen." Phillip Davidson confirmed: "Westmoreland doesn't take advice. Barry Goldwater (who had sued for libel) told him it was not worth it. Clark Clifford told him not to do it. Edward Bennett Williams told him not to."39 Also, according to one source, "Kitsy Westmoreland... had been 'violently opposed' to filing the suit."40
Recalling the press conference a few days after the documentary was broadcast, Davidson said he thought then they had "pretty much refuted the charges which Sam Adams and CBS had leveled against Westmoreland. But of course Westy wasn't satisfied. Here was a chance... for Westy to get back in the front pages, or at least the second pages, of the United States newspapers and magazines. And so, if he could find anybody to represent him, he was going to do it [sue CBS]."41
Given the outlook of highly competent attorneys on the unlikelihood of Westmoreland's prevailing in such a suit, it was not easy for him to find representation. He finally wound up with Dan Burt, head of an outfit known as the Capital Legal Defense Corporation, a not-for-profit entity known primarily for involvement in public policy matters.
Later Dean Rusk, former Secretary of State, wrote to Westmoreland to tell him "on a very personal and private basis" that he did not think Westmoreland's lawyers "were up to the task they had and were no match for the high stepping group assembled by CBS." Westmoreland's response said in effect that that was the best he could do: "They were the only people in the legal profession who actively came to the rescue."42
CBS meanwhile hired as outside counsel the New York firm of Cravath, Swaine & Moore. David Boies became their lead attorney. Larry Worrall, whose firm provided CBS's libel insurance and who had seen a lot of attorneys in action, said, "David Boies was probably the best lawyer that I've ever come across."
THE PRETRIAL PROCESS of taking depositions from potential witnesses was lengthy and arduous. The deposition of Crile "was taken over fifteen days and ran more than nineteen hundred pages. General Westmoreland's was equally long."43 George Godding from MACV J-2 was also deposed, with the questions put by David Boies. The transcript of that session ran to 348 pages, much of it the result of Godding's efforts to avoid having to acknowledge that he had been given an enemy strength figure approved by General Westmoreland and told to present and defend that figure at the SNIE conference in Washington in August 1967. That figure was 297,790, and it did not include the categories that Westmoreland had unilaterally decreed were to be newly excluded from the overall order of battle.
Godding and Davidson had gone in to see Westmoreland before Godding left for the conference, ascertaining that Westmoreland approved that number and wanted it defended. Godding subsequently did everything he could to avoid having to admit that fact. Eventually Boies wore Godding down, the crucial point coming even before the trial in the deposition. "You went in and had a conversation with him [General Westmoreland] and General Davidson, and, based on that conversation, General Westmoreland instructed you to take that 297,000 figure to Washington and present and defend it; correct?" Godding finally admitted, "That's correct."44
A key issue at every stage of the proceedings was exactly that, whether Westmoreland had put such a ceiling on the number of enemy that MACV would accept in the order of battle and in preparation of the Special National Intelligence Estimate. In a pretrial telephone interview with Crile, Godding had, according to Crile's notes, said that, while he was representing MACV at the Washington order of battle conference, "The initial concern was over the total number—guidance from Westmoreland—all negotiations in Washington were held to the MACV official figure for May OB [Order of Battle report]. This was the gospel, the party line." Even more definitively: "Godding confirms that before going to Washington he met with General Westmoreland and Gen. Davidson and Westmoreland instructed him to keep the MACV position to the existing Order of Battle totals.... Stay with what we had. 'There was a command figure.... '"45
Of course Westmoreland himself had reduced the order of battle dramatically by decreeing that whole categories of enemy forces should be deleted. Whether, by specifying that his representatives must adhere to the "command position," he had stipulated a de facto ceiling remained to be adjudicated, or at least determined by a jury.
THE TRIAL BEGAN on 9 October 1984 in the U.S. District Court for the Southern District of New York, in Manhattan, Judge Pierre Leval presiding. It was destined to continue for eighteen weeks, with over three hundred hours of testimony, before a surprise ending brought it to an abrupt halt.
In some respects the trial was over even before it began. Dan Burt, Westmoreland's attorney, made a major decision at a session with Judge Leval the day before the trial began. There he dropped a large part of his case, deciding he "would not challenge CBS on a key assertion of the documentary: that Westmoreland had conspired to deceive the press, the Congress, and public about enemy troop strength in Vietnam." Ins
tead, he would confine his efforts to proving "that CBS had defamed Westmoreland on a much narrower issue: that the general had deceived his superiors, including the Joint Chiefs of Staff and the President."
As the trial progressed Westmoreland was of course an essential witness, just as he had been in the CBS documentary. The credibility of his testimony was undercut at several points by discrepancies between what he said on the witness stand and what he had said in earlier depositions, and in some cases even three-way inconsistencies between his interview testimony as shown in the CBS broadcast, his pretrial depositions, and his testimony in court. For example, on the witness stand Westmoreland said he was aware that LBJ was "convinced that we were making substantial progress in Vietnam and he wanted hard facts so that the progress would be recognized." But in the earlier deposition he had stated he "never had the impression that the President wanted hard evidence on progress in the war." One juror observed that on the witness stand "Westmoreland doesn't seem to be that quick or bright. He has a tunnel-type vision—he sees what he sees on his own terms."46
Time after time Westmoreland was caught in contradictions between what he had said on earlier occasions and what he now stated under oath. "In the final analysis," he said at one point in his testimony, referring to his 1967 troop request, "I got basically my minimum essential force." Boies took exception to that, suggesting that in fact Westmoreland's "minimum essential force was scaled down sharply, cut almost in half." He was reading from Westmoreland's book A Soldier Reports. Then, continuing his questioning, he asked: "You were extremely disappointed with that, were you not, sir?" Westmoreland responded, "I wouldn't say extremely, no." Boies returned to the book. There Westmoreland had stated, "I was extremely disappointed" not to get the troops he had requested. "Well," now commented Westmoreland, "I was disappointed at the time." And so it went.
ON 13 DECEMBER 1984 Judge Leval issued some important instructions. "The issue in the libel suit," he explained, "is whether the publisher recklessly or knowingly published false material." And "the libel law does not require the publisher to grant his accused equal time or fair reply. It requires only that the publisher not slander by known falsehoods (or reckless ones)."
Later, in a crippling ruling, Leval would frame the issue as whether Westmoreland had attempted to deceive, not whether he had succeeded in any such effort.
Setting the bar for a successful libel prosecution was a case known as New York Times vs. Sullivan in which the Supreme Court had decided in 1964 that "free speech was so important that even false and defamatory statements made about the official conduct of public figures deserved the protection of law. To recover damages, an official had to prove that the statement was made with 'actual malice,' or with 'reckless disregard' as to whether the statement was true or false." There was a reason so many attorneys had counseled Westmoreland against suing in the first place.
AT ONE POINT Westmoreland sought to share the blame by getting the Army involved in dealing with CBS. "I would hope," he wrote to Secretary of the Army John Marsh in late March 1982, "that in some way the Department of the Army would stand up and expose the hoax and sham of the so-called CBS documentary which attacks the integrity of the U.S. military."47 That characterization fooled nobody. It was not the "U.S. military," but Westmoreland personally and specifically, who was being charged with data manipulation and misrepresentation. Now the Army stayed out of the matter.
WESTMORELAND DEEPLY RESENTED an interview with CBS given by Major General Joseph McChristian, MACV J-2 during 1965–1967, saying, "I was puzzled by his conduct and telephoned him as an old friend and former colleague and expressed my surprise that he would go on a national tv program and criticize me without the courtesy of informing me. I told him in essence that it was an unusual performance and alluded to the confidence that had traditionally prevailed between West Point graduates. I added that I was disappointed to have him add to the burden that I had carried in major degree for those of us who fought an unpopular war."48
In another criticism made during a 15 May 1981 interview Westmoreland sought to demean McChristian and undermine his credibility by assigning to him ignoble motives for his testimony. "If he has a vendetta because he didn't get promoted," said Westmoreland, "well, I'm sorry. But that seems to be the case."49
Westmoreland had specifically requested McChristian as his J-2 at MACV, then frequently complimented him on the job he did. Later, as Army Chief of Staff, he brought McChristian in to be the Assistant Chief of Staff for Intelligence, the top Army post in that field. McChristian, having in the meantime commanded an armored division for two years, then went on to serve for three years as the top Army intelligence officer while Westmoreland was Chief of Staff. None of that background supported the vengeful motives Westmoreland later claimed underlay McChristian's order of battle testimony. For his part, McChristian's principal subordinate for order of battle intelligence in Vietnam, Colonel Gains Hawkins, eloquently described McChristian as "your white knight serene, impeccable and untouchable."50
During direct examination of General McChristian two important disputed matters were brought out. First it was stated that "General Westmoreland has testified at this trial that, in substance, he asked you at that meeting about the components of the category known as irregulars. Did General Westmoreland ask you about the components of the category known as irregulars at that meeting?" McChristian answered, "I don't recall General Westmoreland asking that question, but if he had, I certainly would have pointed out what happened at the Honolulu Conference, that all of the categories that we have were approved by that conference, and I would have had to point out other things to him, and I think it would have stuck in my mind. I don't recall any discussion on that."51
Then: "General Westmoreland has also testified at this trial... that at that meeting he said to you, 'Joe, with respect to the self-defense and secret self-defense, we are not fighting these people. They are basically civilians. They don't belong in any representation, numerical representation, of the military capability of the enemy.' Did General Westmoreland say that to you at that meeting in words or substance?" McChristian: "No, sir. Here again, had he have said that, I definitely would have to come back and tell him about what happened at that conference and explain that—as far as I am concerned, that could not have been covered."52
In his memoirs, which appeared long before the CBS documentary, Westmoreland had expressed a view he now sought to distance himself from: "in insurgency warfare a civilian political cadre, even if unarmed, also constitutes the enemy."53 But of course he had been right at that time and wrong before and after.
General McChristian underscored that when he brought the message to Westmoreland describing the better intelligence on irregular forces and the resulting increased order of battle numbers. Westmoreland told him that sending such numbers forward would "create a political bombshell."54 During the trial Westmoreland was asked why he thought that would have been the outcome. "Because people in Washington were not sophisticated enough to understand and evaluate this thing, and neither was the media," said Westmoreland.55 In his pretrial deposition Westmoreland had also stated that he was "sensitive to the fact that," had he submitted such a report, "there could be a political problem involving my—that could be used to embarrass my commander in chief."56
Asked by David Boies whether he believed it was improper for General Westmoreland to hold his cable, McChristian had no doubts: "I think that for a military man to withhold a report based upon political implications would be improper."57 Later he would say that he thought Westmoreland, "in being loyal to the President, was disloyal to his country." Was he also being self-serving? "Yes," concluded McChristian.58
McChristian's testimony was as dramatic, consequential, and determinative of the outcome as had been his interview comments on the original CBS program, demolishing the idea that, among other things contended by Westmoreland, the enemy was in deep trouble, was running out of men, and had launched the 1968 Tet Offensive b
ecause he knew he was losing the war.
Burt's case on behalf of Westmoreland was in a shambles. Meanwhile, the witnesses on whom Westmoreland depended most did not create a favorable impression, at least as viewed by one juror who later wrote a book about the experience. "We've had a lot of witnesses," recalled Patricia Roth. "Some I liked, with others I was uncertain. But with the ones that Westmoreland seemed to feel most credible, I definitely didn't like them and didn't believe them."59
ON 18 FEBRUARY 1985, only days before the case would have gone to the jury, Westmoreland suddenly and unexpectedly agreed to settle. In exchange for withdrawing his suit against CBS and the others, he got a statement by CBS that read in pertinent part: "CBS respects General Westmoreland's long and faithful service to his country and never intended to assert, and does not believe, that General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." There was another provision of the agreement on discontinuance, less often quoted: "General Westmoreland respects the long and distinguished journalistic tradition of CBS and the rights of journalists to examine the complex issues of Vietnam and to present perspectives contrary to his own."60 Each side, it was also agreed, would pay its own legal expenses.
That was, claimed Westmoreland, a victory for him. "I finally decided to withdraw my complaint in return for a joint statement signed by the corporate general counsel, producer, and a commentator, which I considered a clearing of my honor and integrity as a responsible commander in a controversial and much misunderstood war."