Full-Court Press on CBS

The network releases a damaging self-examination

The 1982 CBS documentary The Uncounted Enemy: A Vietnam Deception appeared to accuse retired Army General William Westmoreland of being one of the principal figures behind a "conspiracy at the highest levels of American military intelligence." The alleged aim was to underreport enemy troop strength and create the illusion that the U.S. was winning the Viet Nam War. After the January broadcast, the angered general turned down the network's offer of 15 minutes' rebuttal time and last September slapped CBS with a $120 million libel suit. That suit is generating its own prickly set of constitutional complications.

The first one has now been resolved in Westmoreland's favor. It involved the question of whether an internal CBS study of the show, inspired by a TV Guide article last May calling the program "a smear," was protected by a business or journalistic privilege of confidentiality. The study was conducted by CBS News Senior Executive Producer Burton Benjamin and was summarized by CBS News President Van Gordon Sauter in a memorandum made public in July. Drawing on Benjamin's study, Sauter conceded that the program had deviated from certain CBS News practices, but stood by its substance as essentially accurate. Westmoreland's lawyers, contending that Sauter's statement had constituted a further libel, sought the complete Benjamin report to use in making their case. CBS refused.

Representatives of ABC, NBC, Newsweek, and the Wall Street Journal, among others, submitted affidavits supporting CBS. Confidentiality for in-house investigations is vital for editors at the Journal, noted Dow Jones News Vice President Edward Cony. "Anything that interferes with their ability to confer with one another fully and candidly diminishes their ability to exercise properly their responsibilities as editors."

Federal Judge Pierre Leval, however, ruled two weeks ago that by publicly relying on the Benjamin study the network had forfeited any privilege it might have had. Said Leval: "CBS cannot at once hold out the Benjamin report to the public as substantiating its accusations and, when challenged, decline to reveal the report, contending that it is a confidential internal study utilized solely for self-evaluation and self-improvement."

When CBS duly surrendered the study last week, Westmoreland's lawyers termed the document "devastating," while CBS shrugged it off as consistent with the original Sauter memo. "They were hoping to find a smoking gun," said Sauter. "There isn't even the smell of cordite."

There was more than a hint of embarrassment, though. The report provided details on eleven "principal flaws" in the preparation and production of the program. Among them: a failure to prove that there was a "conspiracy" to underreport enemy troop strength; failure to identify one of the sources as a "paid consultant"; "an imbalance in presenting the two sides of the issue"; and the "coddling of sympathetic witnesses" when the documentary was filmed. Also included in the report were transcripts of some interviews done for the show that displayed apparent coaching of a source by a CBS journalist.

Judge Leval did not have to address the larger question of where the plaintiffs right of discovery ends and a news organization's privilege of confidentiality begins, but a showdown on the point is still possible. Dan Burt, an attorney for the Capital Legal Foundation, which is representing Westmoreland, last week announced his intention to "seek everything relevant to whether or not CBS libeled General Westmoreland," including notes taken by Benjamin in the course of his investigation. CBS vowed to fight the new move, "with great vigor," said Sauter. "Sometimes I think the plaintiffs lawyers want to open our desk drawers." The prospect of such rummaging by libel plaintiffs worries even reporters who agree with Leval's reasons for ordering the Benjamin report's release. The result could lead to an undesirable sapping of journalistic enterprise. This file is automatically generated by a robot program, so viewer discretion is required.