Days of Judgment for CBS

By WILLIAM A. HENRY III

Westmoreland's side marshals some facts and figures

Walt Rostow, an archetype of the best and the brightest, spoke slowly and carefully, recalling in vivid detail a meeting that took place in April 1967. General William Westmoreland, then commander of U.S. armed forces in Viet Nam, had asked for 200,000 more troops. President Lyndon Johnson and top aides pressed for a date by which the American forces would win. As jurors in a Manhattan federal courtroom listened intently, the former National Security Adviser said he had no recollection of Westmoreland's having offered misleadingly hopeful "good news." The exchange was subdued but freighted with drama. This was no memoir, no scholarly retrospective. It was the first testimony, by one of the architects of America's longest and costliest war, in what may prove to be the most celebrated libel case in U.S. history: Westmoreland's $120 million suit against CBS News. After almost three years of crossfire in the court of public opinion, the battle is under way in a court of law.

Westmoreland's suit has aroused expectations of a definitive judgment on issues ranging from the adversary role of the press to the apportionment of blame for the U.S. failure in Viet Nam. Federal District Judge Pierre Leval, however, emphasized to jurors last week that they will be asked to decide specific matters of fact. A "historical inquiry," Leval warned, could last a lifetime. Instead, the focus is on what CBS alleged in its 1982 documentary The Uncounted Enemy: that Westmoreland engaged in "a conspiracy at the highest levels of military intelligence" to mislead his superiors, including the President, about the size and scope of enemy troop strength, and thus about the success of his war of attrition.

Westmoreland contends that what CBS portrayed as a conspiracy was in reality a legitimate and widely understood debate about how to evaluate the impact of part-time, often untrained, guerrilla opponents. He charges that CBS News Producer George Crile and Correspondent Mike Wallace willfully ignored evidence that supported him. To bolster his attack, Westmoreland's attorney Dan Burt summoned as witnesses both Rostow, who had given a three-hour interview to CBS that was left on the cutting-room floor, and former Special Ambassador Robert Komer, who was not even questioned by the CBS producers.

Rostow, who was characterized by Author David Halberstam in The Best and the Brightest as a "cheerleader" for the military effort, said that Johnson had been well aware of disputes among military factions and the CIA over how to count "self-defense" and "secret self-defense" forces. These fighters, who operated, respectively, in enemy-and U.S.-held territory, laid traps and took potshots but were not part of regular combat units. Komer, who was known to Viet Nam-era journalists as Blow Torch for his high-powered manner, was asked by CBS Attorney David Boies whether these forces were armed. Komer laughed. "We never could find these people," he said, "much less determine whether they were armed." Responding to CBS charges that Westmoreland and others had felt pressure to produce upbeat troop-level estimates, Komer added, "At no time did anyone ever give me an order with regard to ceilings or preconceived limits."

The alleged "numbers game" over troop strength is, CBS claims, of more than theoretical significance: it purportedly left the American public psychologically unprepared for the severity of the January 1968 Tet offensive. Although the enemy suffered huge losses in battle, the onslaught was a watershed in turning U.S. public opinion against the war. But the cause and effect suggested by CBS are rejected by former Washington Post Reporter Peter Braestrup, whose Big Story is considered a definitive book on the attack. Braestrup said in an interview last week: "The number that the Government used in late 1967 to show progress was not the enemy troop strength but the percentage of the country that was said to be under our control."

Despite the import of the issues, much of the testimony was so technical and abstract that Leval broke with customary procedure to let the jurors take notes. Still there were flashes of theatrics last week between the feisty, voluble Burt and the patrician Boies. At one point, Burt asked Komer a question, and as Boies rose to object, Komer answered it loudly and firmly. "Too late now," Leval dryly observed.

Because Westmoreland is presenting his side first, the testimony so far has been dominated by challenges to CBS. But Boies scored in crossexamination. He produced a March 1967 cable from Joint Chiefs of Staff Chairman Earl Wheeler counseling Westmoreland to keep secret some intelligence figures because if leaked, "they will literally blow the lid off Washington." When Rostow asserted that Westmoreland had not told Johnson that the war had reached a "crossover point"--in which enemy troops were being killed faster than they could be replaced--Boies introduced Government documents to contradict him. Later CBS publicists distributed extracts from Westmoreland's interview for the show, in which he acknowledged that he had claimed to have reached a crossover.

The burden of proof is on Westmoreland. The network is under no legal obligation to demonstrate that its charges were true. Moreover, Westmoreland must prove that CBS either knew the charges were false or aired them in reckless disregard of whether they were. In a case replete with ironies, perhaps foremost is that the evidence the jury will consider may outweigh the reporting that went into the documentary. With months of testimony to come, CBS attorneys estimate that the network and its accuser have each already spent nearly ten times the original $250,000 cost of producing The Uncounted Enemy. --By William A. Henry III.

Reported by John F. Stacks/New York

With reporting by John F. Stacks/New York