Battle Lines Are Drawn

At issue in the Westmoreland case is more than just a war

The complex lawsuit has been called the final battle of the Viet Nam War, a legal struggle over key questions of culpability for America's most agonizing military defeat. Yet there is even more at stake as the case of General William Westmoreland vs. CBS News opens this week in a marble-encased Manhattan federal courtroom. Ultimately in question is the unfettered freedom of the U.S. press to examine critically actions of the nation's Government and public figures, as well as the public's growing impatience with perceived abuses of that freedom. It is likely to be, in the words of Trial Judge Pierre Leval, "a rare debate and inquiry on issues of the highest national importance."

The case involves a 1982 CBS documentary, The Uncounted Enemy: A Vietnam Deception. Westmoreland, who commanded U.S. forces in South Viet Nam from 1964 to 1968, calls the program a "hatchet job" for alleging that he engaged in a "conspiracy" to underreport enemy troop strength. According to the 90-min. broadcast, Westmoreland's command, in its reports to President Lyndon Johnson and the Joint Chiefs of Staff, estimated Viet Cong strength at about 300,000. Many intelligence operatives believed the true figure was closer to 500,000. The program also charges that the Saigon command withheld information about the nearly 25,000 North Vietnamese troops suspected of infiltrating the South each month. These grim statistics were purportedly suppressed in order to foster the image that the U.S. was whining the war.

Westmoreland contends that there was neither conspiracy nor deceit regarding the estimates. Washington officials, he insists, were well aware of a debate between the CIA and military analysts over whether the enemy's "irregular self-defense" supporters should be included in the figures. The defeats suffered by North Viet Nam during the Tet offensive of early 1968, Westmoreland claims, vindicate his command's method of reporting enemy strength. In an internal investigation six months later, conducted after TV Guide had published a cover story on the show titled "Anatomy of a Smear," a CBS official concluded that the word "conspiracy" was not justified and that certain of the network's reporting guidelines had been violated; but both he and CBS insisted that the basic conclusions of the broadcast were correct.

The outcome of the case could go a long way toward deciding whether public figures can ever recover for libel. If Westmoreland wins, the victory will spur other public figures to sue. The press could be so deluged that the First Amendment freedom would mean little. If Westmoreland loses, many public officials may conclude that they have no recourse against an unbridled press.

In 1964 the Supreme Court gave sweeping protection to the press in New York Times vs. Sullivan. To "encourage robust debate," the high court so broadened the definition of libel that journalists were given license to say almost anything they wanted about public officials (but not about private citizens). In order to sue successfully for libel, a public official had to prove "actual malice," which the court defined as reporting that was known to be false or showed a "reckless disregard" for the truth. In the wake of the Sullivan decision, judges initially threw out cases involving public figures before they got to a jury, reasoning that the plaintiff could never prove actual malice. Lately, however, judges have been more willing to let juries decide; out of sympathy for the plaintiffs and sometimes out of hostility to the press, juries have shown a willingness to give plaintiffs huge damage awards. These decisions are often reversed by the trial judge or on appeal, but the trials, win or lose, are terribly expensive to the press.

Westmoreland's case is being handled by Dan Burt of the Capital Legal Foundation, which finances its activities through donations from major conservative foundations. CBS is being represented by David Boies, a partner in the prestigious New York City law firm of Cravath, Swaine & Moore. Both sides have spent more than $5 million preparing for the trial. Together they have examined more than 200,000 pages of Government documents, reviewed more than 50,000 pages of CBS's notes and files, and deposed more than 50 witnesses (Westmoreland's testimony encompasses 2,000 pages, and Reporter Mike Wallace's takes 554).

Boies' 450-page brief for CBS cites testimony from officials ranging from former Defense Secretary Robert McNamara to CIA operatives who served in Viet Nam. Their testimony, Boies contends, shows that the manipulation of enemy-troop assessments did occur. On the First Amendment issue, he argues that far from exhibiting "reckless disregard" for the truth, CBS interviewed more than 80 people for the report. Finally, he contends that the press should have "absolute immunity" from libel suits by public officials.

Last month Judge Leval rejected CBS's plea for total immunity and sent the case to the jury. Leval agreed that Westmoreland could not prove recklessness by CBS, since 60 Minutes had interviewed so many people. But the judge ruled that if, as Westmoreland claims, CBS edited tapes to twist quotes out of context and ignored facts that conflicted with its conclusions, then CBS could be held liable for knowing disregard of the truth.

In a pretrial conference late last week, Burt told Judge Leval that Westmoreland planned to narrow his suit "to make the trial measurably easier." Burt said he will focus primarily on refuting what he claims is CBS's implication that Johnson and the Joint Chiefs had been willfully deceived by the reporting from Viet Nam; Burt then dropped the charge that CBS had libeled Westmoreland by accusing the general of misleading Congress and the public. Boies said that the move showed "the case is beginning to unravel." The trial, which may last as long as four months, is nevertheless expected to reopen old debates about the Viet Nam War. It will also tackle an even more irreconcilable conflict: the need to protect a free and vigorous press vs. the individual's right to redeem his reputation.