Lawyers lay groundwork as CBS-Westmoreland trial begins
New York — Did CBS News have a reasonable basis for believing that a ''numbers war'' in Vietnam in the fall of 1967 led Gen. William C. Westmoreland (ret.) to suppress estimates of greater enemy strength in order to give the impression that the increasingly unpopular war was being won?
This question was posed Friday by CBS lawyer David Boies to the Manhattan jury considering the $120 million libel suit General Westmoreland has filed against CBS News, George Crile, Mike Wallace, and Samuel Adams for the 1982 news documentary ''The Uncounted Enemy: A Vietnam Deception.''
Mr. Boies wound up two days of opening statements in the trial, including comments by Judge Pierre N. Leval, who instructed the jury on uses of evidence. The Westmoreland attorney, Daniel Burt, conducted a several-hour presentation, charging that the defendents turned a debate among intelligence analysts into a conspiracy of deception.
During the first several days of the trial, the courtroom has been packed with reporters, interested lawyers and law students, and other spectators, including some close to the issue, such as Mrs. Westmoreland and former government official Daniel Ellsberg, who released the ''Pentagon papers'' to the press in 1971.
Mr. Burt opened his presentation with charges that Mr. Crile, who produced the documentary, was under pressure to produce ''a big story,'' and so he turned to Mr. Adams, a former Central Intelligence Agency (CIA) analyst who had been involved in the debate over the military ''order of battle,'' which lists number of enemies capable of engaging in combat.
One of the questions at that time, in the months preceding the Viet Cong's 1968 Tet offensive, was whether the ''home guard,'' Vietnamese civilians who sympathized with and sometimes fought for the Viet Cong, were to be included in estimates of enemy strength. They had been counted throughout the conflict, but the decision was made to drop them. The CBS documentary implied that this was done to keep the number of enemy troops below a ceiling of 300,000, although the numbers were actually climbing to as high as half a million.
The documentary alleged that Westmoreland imposed this ceiling to keep the true numbers from policymakers, the public, and the press, for political reasons. The general is specifically suing CBS over contentions that he misinformed President Johnson and the Joint Chiefs of Staff during the war.
Burt said that Crile proposed this theory to CBS executives, who commissioned him to do the documentary. He added that ''the documentary they got is the documentary they commissioned, but not the story that (Crile) was told'' by people he and Mr. Wallace interviewed. He charged that interviews were distorted to fabricate the conspiracy theory by using only segments of interviews, or leading into a specific answer on film with a question that was not actually asked, or both.
Burt showed some film clips of interviews done by CBS that were not used in the program, and asserted that these outtakes proved that Crile had picked out fragments of the interviews to buttress his conspiracy theory.
Burt plans to call as witnesses Walt W. Rostow, President Johnson's special assistant for national-security affairs; former CIA director Richard Helms; former Defense Secretary Robert McNamara; and former Secretary of State Dean Rusk.
CBS lawyer Boies told the jury in his opening statement that the CBS documentary was ''truthful and accurate'' and that the defendents believed ''very strongly'' in the story they reported.
Boies also showed segments of interviews on television monitors and quotes from cables reproduced on charts that he said supported the CBS documentary. He repeatedly told the jury that Crile and Mr. Wallace ''didn't fabricate this ... didn't make this up.''
He said that through evidence and testimony introduced at the trial, he would help the jury understand the ''state of mind'' that the defendents were in when they documentary was done. He contended that CBS News did not exaggerate a debate of enemy strength.
''A judgment was imposed'' to put a ceiling on the enemy troop numbers, Boies said. ''It was not a good-faith intelligence dispute.''
Since Westmoreland is a public figure, his attorney must prove that CBS knowingly broadcast a defamatory falsehood about Westmoreland, or that it had reckless disregard for the truth.
The trial is expected to last several months.