Vietnam War

On January 23, 1982, CBS television broadcast a 90-minute documentary entitled The Uncounted Enemy: A Vietnam Deception. The program was produced by George Crile and based in large part on the reporting of Sam Adams, a Pentagon analyst who had acted as a CBS consultant for the program. Mike Wallace from 60 Minuteswas the narrator. He also conducted some of the interviews.

The documentary reported charges by a number of U.S. Army and CENTRAL INTELLIGENCE AGENCY (CIA) intelligence sources, who claimed that prior to the surprise North Vietnamese-Viet Cong led Tet Offensive in January 1968, the U.S. Military Assistance Command in Vietnam, also known as MACV, conspired to mislead President LYNDON B. JOHNSON, the American public, and the rest of the military about the enemy's actual strength. The witnesses interviewed for the documentary stated that MACV carried out this deception to make it appear that progress was being made in winning the war of attrition against enemy forces, that the war could be won, and that there was "some light at the end of the tunnel" in what was the longest war in U.S. history.

The documentary made clear that not only was MACV under the control and command of General William C. Westmoreland but that the conspiracy to understate enemy troop strength was carried out at least with Westmoreland's knowledge, ACQUIESCENCE, and tacit approval. The documentary then charged that the Tet Offensive might have been less surprising and demoralizing had MACV been providing accurate information. Since many historians and military experts consider the Tet Offensive to be the war's final turning point, the documentary suggested that Westmoreland played a significant role in the U.S. defeat in Vietnam.

In the preface to the broadcast, correspondent Mike Wallace stated: "The fact is that we Americans were misinformed about the nature and the size of the enemy we were facing, and tonight we're going to present evidence of what we have come to believe was a conscious effort—indeed, a conspiracy at the highest levels of American military intelligence—to suppress and alter critical intelligence of the enemy in the year leading up to the Tet Offensive."

Three days later, General Westmoreland held a press conference attended by former CIA special assistant George Carver, former senior CIA officials, a former ambassador to Vietnam, and some of the general's principal intelligence people during the war. Westmoreland and his supporters denounced the program as filled with lies, distortions, fraudulent statements that constituted a hoax on the public. Westmoreland and the others criticized the documentary on four grounds. They alleged that (1) one of the interviews had been rehearsed; (2) one of the witnesses was interviewed after being allowed to see the interviews of the other witnesses; (3) there was insufficient notice to General Westmoreland of the scope of his interview; and (4) certain answers were improperly spliced and edited.

CBS News decided to conduct an internal investigation, appointing senior editor Burton Benjamin to coordinate it. On July 7, 1982, Benjamin submitted his findings to Van Gordon Sauter, the president of CBS News. Eight days later Sauter issued a statement expressing regret that the documentary had failed to comply with certain journalistic standards ordinarily followed by CBS. However, Sauter emphasized that the program contained no falsehoods or distortions of the truth. In September, CBS offered to General Westmoreland 15 minutes of unedited airtime to respond to the documentary, which was to be followed by a 45 minute panel discussion about the criticisms and merits of the broadcast. The general declined the offer.

On September 13, 1982, Westmoreland filed a $120 million lawsuit against CBS, alleging that the Vietnam documentary had made 16 libelous statements against him. But statements that accused the general of having conspired to understate enemy troop strength constituted the centerpiece of the lawsuit. Although Westmoreland filed the lawsuit in his home state of South Carolina, CBS successfully moved the case to a federal district court in New York for trial. Westmoreland's suit was funded in part by the Capital Legal Foundation, a conservative think tank headed by Dan Burt, who also served as the general's lawyer. CBS was represented by the law firm of Cravath, Swaine, & Moore.

Discovery began immediately and continued for a year and a half. Hundreds of witnesses were interviewed and deposed throughout the country and the world. It was an exhaustive preparation for both sides. In the summer of 1984, the defense moved for SUMMARY JUDGMENT. Its memorandum of law ran just under 400 pages—not including volumes of exhibits. On September 24, 1984, Judge Pierre Leval denied the motion, concluding that the complaint contained several triable issues for the jury. Leval said it was the jury's province to determine whether certain statements of fact contained in the documentary were true, and, if proven to be false, whether they were made with "actual malice," the two lynch-pins of any libel case involving a public figure.

The case came to trial on October 9, 1984, and concluded on February 17, 1985. Just as the case was about to go to the jury, the two sides settled their differences, each side claiming it had proven its major points. As part of the settlement, CBS agreed to issue the following written statement: "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." CBS then conducted a second internal investigation over the matter. This time it found that the program was "seriously flawed" and out of balance. It admitted that "conspiracy" had not been proven, friendly witnesses had been coddled, and those opposing the program's thesis were treated harshly. Despite these findings, Mike Wallace stood by the program.

Perhaps no other libel case in the twentieth century attained the celebrity of Westmoreland's libel suit. Born in Spartanburg County, South Carolina, and a 1936 graduate of West Point, General Westmore-land gained a reputation for superb staff work and sound battle leadership during WORLD WAR II, in which he participated in the North Africa, Sicily, and Normandy campaigns. He served as commander of U.S. forces in Vietnam from June of 1964 until June of 1968 and was the primary advocate for escalating U.S. troop involvement in South Vietnam during that period. He was Timemagazine's Man of the Year for 1965.