Westmoreland vs. CBS: The Military, the Media,

and the Vietnam War

 

 

 

Michael Moravitz

Voice of America Radio

                                                                                               

 

 

 

 

 

 

Westmoreland vs. CBS was a legal battle in 1984 and 1985 that pitted the proud former commander of United States forces in Vietnam against a respected news organization that had been the home of such venerable correspondents as Walter Cronkite and Edward R. Murrow.  Retired General William C. Westmoreland filed a $120-million libel lawsuit against CBS over the 1982 news program, “The Uncounted Enemy: a Vietnam Deception,” which accused the general and other top military officers of conspiring to misrepresent enemy troop strength, in particular the Viet Cong’s militia forces, in order to suggest the Vietnam war had been progressing better than it actually was.  The trial replayed the antagonisms between the military and the news media that had been apparent during the war, especially after the Tet offensive, which convinced many journalists that the war was being lost and that the military was deceiving the public.  The CBS program was flawed in many ways, and the military probably did not engage in a conspiracy.  The evidence presented at the Westmoreland vs. CBS trial, however, demonstrated that the military was very sensitive about media coverage of the war and, in part because of this, injudiciously underestimated the impact of irregular militia forces that caused many American casualties.

            The Westmoreland vs. CBS trial attracted heavy media coverage, and some even billed the general’s legal action as the “libel suit of the century.”¹  Bob Brewin and Sydney Shaw’s Vietnam on Trial: Westmoreland vs. CBS and Renata Adler’s Reckless Disregard: Westmoreland vs. CBS et al. Sharon v. Time are two books by journalists about the trial.  The work by Brewin and Shaw is the most reliable day-by-day account of the proceedings. The authors begin by describing how Central Intelligence Agency (CIA) analyst Sam Adams secretly buried purloined documents about enemy troop estimates in 1969 and conclude with the settlement of the lawsuit in February 1985.  They also include a section on government documents released during the course of the litigation that deepen our understanding of the war but only tangentially relate to the enemy troop estimates.  Their work is flawed, however, by their insistence on merely reporting the events without drawing any conclusions.  They declare in their introduction, “We do not care to sit in judgment, except for making the judgment that the story would be told best by its participants.”²  This may be good journalism, but it is not good history. 

            Adler’s Reckless Disregard goes to the other extreme.  The author clearly had a point of view, if not a bias.  She excoriates what she claims were the pretensions and hypocrisy of CBS in the Westmoreland case.  Adler is at her best in deconstructing the legal maneuvering and testimony at the Westmoreland trial.  However, she did not demonstrate a good understanding of the historical issues related to the case.  She rejects out of hand the thesis of the CBS documentary as “preposterous,” without examining the documents, the historical literature, or both sides of the controversy.³  Adler deplores media excesses, but is less interested in examining the historical issues that arose from the trial, such as the military’s sensitivity to media coverage of the war and the military impact of irregular forces.

            Don Kowet’s A Matter of Honor is also a work of journalism, and it describes the making of the CBS documentary, the controversy surrounding it, and the legal maneuvering before the trial.  The book, published in 1984, does not include any information on the trial itself.  Kowet is the co-author of a TV Guide magazine exposé about “The Uncounted Enemy,” and his book expands on the criticisms contained in the article.  Kowet’s book focuses on a behind-the-scenes look at the making of the program, and he argues that “CBS did not have conclusive evidence proving a ‘conspiracy.’”⁴  This paper agrees with that judgment.  Kowet also says that “military intelligence engaged in a dispute with the CIA in the year leading up to the Tet offensive in an effort to prevent the press” from falsely reporting that the war was being lost.⁵  There was in fact an intelligence dispute largely shaped by the military’s extreme concern about press coverage of the war, but unlike Kowet, this paper disagrees with the military rationale for excluding the militia forces in enemy troop estimates.

            Other works on the trial, most notably law professor Rodney Smolla’s Suing the Press: Libel, the Media, and Power, have focused on the legal issues involved in bringing suit against the media.  Smolla’s account of the trial shows a keen sense of history.  He points out that the trial became a sort of ideological Rorschach test for Americans:  some saw Westmoreland as “a knight flailing against the liberal eastern establishment press,” while others saw CBS as “a defender of the First Amendment at a time when . . . the bellicose military establishment was gaining renewed ascendancy.”⁶  Smolla concludes that based on the evidence at the trial, it was possible for there to have been a conspiracy, but that it was also possible that none of the parties was lying.  The author contends that the debate over the enemy troop strength estimates could be seen as merely a bureaucratic battle between Westmoreland and other senior officials on one side and CIA analysts and some military officers on the other, with both parties thinking they were right.  Smolla writes that the trial “became a battle for the symbols and lessons of Vietnam,” and that it ended “as cloudy and unresolved as the Vietnam War itself.”⁷  He argues that the trial raised issues that should not have been dealt with in a courtroom and should have been left to historians to resolve. 

            This paper will pick up the implicit challenge in Smolla’s article and examine the historical context and lessons of the Westmoreland vs. CBS trial.   The memoirs of reporters who covered the war and of General Westmoreland himself described some of the themes that reemerged in the libel trial.  The reporters blamed the military for misleading them, and Westmoreland accused the news media of contributing to the Communist victory, which the general believed the enemy had not won on the battlefield.

            In his memoirs, A Soldier Reports, Westmoreland stated that he took seriously West Point’s code of ethics and the commitment to duty, honor, and country.  His statement helps explain why the general felt it necessary to sue CBS when “The Uncounted Enemy” questioned his honesty and integrity.  Westmoreland wrote that his West Point education emphasized “a code of ethics that tolerates no lying, no cheating, no stealing, no immorality, no killing other than recognized under international rules of war and essential for the military victory.”⁸  He also wrote that “[o]ld-fashioned virtues may go out of style in a permissive society, but no army can long survive without them.”⁹   His deprecation of the “permissive society” of the 1960s underscored the cultural and generational gap between himself and many of the young reporters who covered the war.  The general’s cultural world seemed to be made up of Bob Hope, United Service Organization (USO) shows, and the annual Army-Navy football game, while many reporters described a very different social milieu made up of black humor, rock and roll, and illegal drug use.

            Westmoreland, who commanded American forces in Vietnam from 1964 to 1968, declared in A Soldier Reports that he aimed to “tell it like it was,” in apparent contrast to what he viewed as the news media’s biased version of events.¹⁰  Westmoreland took issue with a wide range of media criticisms regarding the war -- from the alleged ineffectiveness of the M-16 assault rifle and of South Vietnamese troops to the controversial use of certain weapons such as non-lethal gases.  Westmoreland also defended controversial tactics, including “search and destroy” missions.  He accused the media of distorting the meaning of such missions, which, he explained, meant “operations designed to find, fix in place, fight, and destroy (or neutralize) enemy forces.”¹¹  The general caustically concluded that the critics “somehow seemed to believe you could fight one of history’s more brutal enemies without hurting or killing.”¹²

            Westmoreland accused the news media of being “sharply critical” and “looking for the negative” in the American war effort.¹³  He alleged that many correspondents tried to influence public policy instead of reporting objectively.  He wrote that the “young iconoclasts [reporters] were folk heroes whose record demonstrated that the more criticism and the more negativism, the greater the possibility of recognition and reward.”¹⁴

            Westmoreland was particularly incensed over the media reporting on the so-called Tet offensive, in which the Viet Cong and North Vietnamese troops launched attacks across South Vietnam on January 31, 1968 during the lunar New Year holiday known as Tet.  The general claimed that he was aware that Communist forces were preparing an offensive, although he admitted that he had not expected them to strike during the holiday or in such force.  However, he believed that the enemy was desperate and took a gamble to launch a major offensive in the hopes of winning a decisive victory.  The general wrote that he “had learned conclusively” in the prior months of fighting that “it was when the enemy came out of hiding to make some major attack that American firepower could be brought to bear with tremendous effect.”¹⁵  Westmoreland claimed that, as he had anticipated, this firepower was used effectively to inflict major losses on the enemy.  According to the general, the Communists “lost 32,000 killed and 5,800 captured,” while “American forces lost 1,001 killed; South Vietnamese and Allied forces 2,082.”¹⁶

            Why, then, did the offensive produce an uproar in the United States and calls for military withdrawal in the face of what many considered to be a costly battle?  The general believed that the news media, which he tended to see in monolithic terms, created the impression of an American defeat by focusing on certain sensational events, such as the attack on the U.S. embassy in Saigon, and on the losses sustained by American and South Vietnamese forces instead of casualties suffered by the Communists.  He wrote that “in terms of public opinion, press and television would transform what was undeniable a catastrophic military defeat for the enemy into a presumed debacle for Americans and South Vietnamese, an attitude that still lingers in the minds of many.”¹⁷  The result, in the general’s opinion, was a psychological victory for the Communists, undermining American morale and the nation’s willingness to continue the war.  The way to have won the war, in his view, was to have increased U.S. forces after Tet and thereby overwhelm the remaining enemy troops. 

            Westmoreland acknowledged the important role the press plays in a democracy, but his bitterness was apparent in his descriptions of what he considered to be biased, inaccurate reporting on the Vietnam War.  “Press and television,” he wrote, “had created an aura not of victory but of defeat, which, coupled with the vocal anti-war elements, profoundly influenced timid officials in Washington.”¹⁸  He deplored what he considered to be the “youth and inexperience of many correspondents,” their “herd instinct” to follow certain stories in a pack, and “the constant turnover in reporters” assigned to cover the war.¹⁹  Westmoreland claimed that “the strategists in Hanoi indirectly manipulated our open society and hence our political system.”²⁰   In his view, the correspondents had been the unwitting dupes of the Communists by portraying Tet as an American debacle.

            Concerning the number of enemy troops he believed he faced in Vietnam, Westmoreland said that his staff “never inflated estimates of enemy strength for any reason, least of all to try to affect the American troop ceiling.”²¹  The CBS program would view the enemy troop estimates in a sinister way, accusing Westmoreland of having undercounted the Communist forces in order to give a false sense of progress.  The general’s argument in his memoirs was that he could have used an “inflated” estimate of enemy troops as a bargaining chip in asking for more troops to fight a greater number of enemy soldiers and guerrillas.  As discussed previously, however, Westmoreland also asked for more troops when he believed the North Vietnamese had suffered a catastrophic defeat in the Tet offensive.  There appears to be a contradiction in the general’s assertion that he could have requested more troops if he “inflated” enemy troop estimates, and his actual request for more troops when the Communists had suffered major losses.

Westmoreland also stated in his memoirs that his command’s figures “were higher than estimates of the CIA,” an ironic statement since, some former CIA officials would come forward and argue the exact opposite in the CBS program -- that the military suppressed higher CIA estimates in favor of its lower figure to indicate greater success in the war.²²   In particular, Sam Adams, a CIA analyst, used captured enemy documents to support his contention that the number of enemy troops before Tet was much larger than estimated by Westmoreland’s command.  Adams became a gadfly who sent memos to his superiors to try to get the estimates increased.  Adams had the support of some CIA officers, including George Allen, who was the CIA’s deputy special assistant for Vietnamese affairs.  CIA officers and Westmoreland’s staff held a series of meetings in 1967 at Honolulu, Langley, and Saigon to try to hammer out an agreement over the estimates.  Westmoreland’s command -- known as Military Assistance Command, Vietnam (MACV) -- was in charge of the official estimates, or what is known as the order of battle.  The order of battle is a description of the estimated number, location, and military capability of enemy troops arrayed on a battlefield.  The order of battle is intelligence about the enemy that a commander can use to determine his tactics and strategy.  There was some duplication of effort between the CIA’s attempts to estimate the enemy and MACV’s compilation of the order of battle.  Adams’s superiors at the CIA eventually reached a compromise with Westmoreland over the numbers in September 1967, but Adams was not mollified and would eventually take his case to the public as one of the driving forces behind “The Uncounted Enemy.”

            Many war correspondents had a very different view of the war than Westmoreland, and they offered different reasons for the antagonisms between the military and the news media.  The memoirs of three distinguished correspondents -- Ward Just, Peter Arnett, and Michael Herr -- described the horrors of war and the omnipresence of death, descriptions strikingly at odds with Westmoreland’s fierce vision from the command post.  The correspondents did not believe the optimistic accounts from the military press officers in Saigon during the daily briefings that the press called “the five o’clock follies.”  Arnett, Herr, and Just described a fundamental disconnect between what they saw on the battlefield and what was described at the briefings.  Arnett told of how he witnessed a jungle battle north of Saigon in an area known as “War Zone D” in October 1965 in which an American unit sustained heavy losses, only to hear a military briefer in Saigon describe the casualties as “light.”  The Pulitzer prize-winning reporter for the Associated Press said that he challenged the military numbers, but the briefer explained that “for a company-sized unit the losses were indeed heavy, but when assessed against a whole battalion they would be considered light.”  Arnett deplored what he called the “sleight of hand” regarding casualties. ²³  Just, a correspondent for the Washington Post, said “The briefing became an exercise in methodology, a means of exposing the inherent error of body counts, weapons counts, search and destroy missions which had turned left at the wrong coordinate.”  According to Just, the briefings were “a bad way to learn anything about the war, either the terms on which it was being fought or the means by which it might be won.”²⁴  Herr, a writer for Esquire magazine, recounted briefings in which “heavy casualties” were announced as “light,” “routs and ambushes ” called “temporary tactical ploys,” and even “filthy weather” was “characterized as good.”²⁵

            Somewhat surprisingly, Just said that the press corps, for the most part, respected General Westmoreland and did not openly question his remarks.  According to Just, “Westmoreland’s relations with the Saigon press were excellent, and he was never caught in a gaffe . . . . He would only say (accurately by the statistics) that there was progress, and imply that the more men he had the more progress he would make.”²⁶  Just wrote that the press corps “protected” Westmoreland because “he was unable to dissemble; he was so transparently honest and dedicated that no one thought of holding him accountable for the ambiguities and curiosities of American policy.”²⁷

            Arnett and Herr, however, make clear that Westmoreland had his critics.  Arnett described one of his Associated Press stories that recounted a day in the life of front-line troops compared with the general’s activities in Saigon.  Unfortunately for the general, Arnett wrote of Westmoreland’s playing tennis at a sports club while his troops were fighting.  (Westmoreland remembered the incident in his memoirs, and defended his tennis playing as a means of staying fit and alert.)  Arnett, Herr, and Just generally appear to have had better relations with the “grunts” on the battlefield than with Westmoreland and the other commanders.  Perhaps the most important press criticism of Westmoreland argued that he was trying to fight a World War Two-type battle between conventional armies instead of a guerrilla conflict.  Arnett concluded that the general’s “war strategy was implausible and the bloodshed and brutality that accompanied the troops into action was difficult to justify.”²⁸ 

The problem for Americans troops was telling the friendly civilians from enemy irregular forces -- the forces the CBS program said Westmoreland intentionally kept out of the enemy troop estimates in order to mislead the public, the media, and the leadership in Washington.  As one captain told Arnett, “Problem around here . . . is who the hell is who?”²⁹  Similarly, Herr wrote that “[t]he roads were mined, the trails booby-trapped, satchel charges and grenades blew up jeeps and movie theaters, the VC got work inside all the camps as shoeshine boys and laundresses and honey-dippers, they’d starch your fatigues and burn your shit and then go home and mortar your area.”³⁰

            Westmoreland and the correspondents did agree on one thing: the Tet offensive was a key turning point in the relationship between the military and the news media.  The correspondents, however, viewed the outcome of the battle differently.  As noted above, Westmoreland claimed American and allied forces won the battle by inflicting heavy losses on the Communists, but that the media inaccurately portrayed the offensive as an American defeat.  In contrast, Herr wrote that in the offensive “the VC were everywhere all at once like spider cancer, and instead of losing the war in little pieces over years we lost it fast in under a week . . . . [W]e saw them now dying by the thousands all over the country, yet they didn’t seem depleted, let along exhausted, as the Mission [military command] was claiming by the fourth day.”³¹  Arnett deplored what he called “the same stonewalling optimism” of Westmoreland and the military command in the face of the massive assault.³²  Looking back on the war, Just agreed with Westmoreland that the offensive resulted in the American defeat “not militarily but psychologically.” ³³  However, Just believed the war was not winnable anyway: “It was useless to fight the Vietnamese.  They would have fought for a thousand years.  The vast, humid, unquiet land of Vietnam was a leviathan that swallowed everyone up.”³⁴

            Historians have noted the American military’s widespread use of statistics in the Vietnam conflict -- a war of attrition, in Westmoreland’s view, with an emphasis on body counts (the number of dead enemy soldiers).  The correspondents treated the military’s statistics with skepticism, and questioned the ability of numbers to tell whether progress truly was being made in the fight against the Viet Cong and the North Vietnamese.  Just wrote: “All the indicators point to improvement, progress, victory.  Yet Victory does not come . . . . Was it possible that ‘the quantitative measurements we have’ do not apply to Vietnam?”³⁵  Because of this emphasis on statistics, it is not surprising that the Westmoreland vs. CBS libel trial arose from a question about a set of numbers: how many enemy troops did the United States face in the months leading up to the Tet offensive?

            On Saturday, January 23, 1982, CBS broadcast “The Uncounted Enemy: A Vietnam Deception,” a program featuring producer George Crile and correspondent Mike Wallace, who was known for his aggressive interviews.  In the opening segment, Wallace told viewers that the program would “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 on the enemy in the year leading up to the Tet offensive.”³⁶  This statement would be the only time in the program that the word “conspiracy” would be used, but the thrust of the documentary was clear:  General Westmoreland had deliberately misled the American public, media, and political leadership about enemy troop strength leading up to Tet.

            The program arose from the ideas of the aforementioned former CIA analyst Sam Adams, who had tried to convince his superiors during the war that the Viet Cong had been undercounted.  Adams told the program that he came across a captured enemy document that said there were 50,000 Communist guerrillas and militiamen in Binh Dinh province, but the official U.S. estimate numbered only 4,500.   He concluded that the number of the enemy must be underestimated not only in Binh Dinh province but also throughout South Vietnam.  Wallace claimed that Adams’s “discovery would precipitate the longest, bitterest battle in the history of American intelligence.”³⁷

            The program also featured members of the intelligence staff of General Westmoreland’s command in South Vietnam, including Colonel Gains Hawkins and General Joseph McChristian.  They said Westmoreland pressured them to undercount the enemy and keep the estimates under a 300,000-man ceiling.  McChristian was chief of intelligence for Westmoreland in 1967, and Hawkins was the head of the section on the order of battle. 

General Westmoreland told CBS that he was “very, very suspicious” of higher estimates presented by Colonel Hawkins in 1967 because “down at the hamlet level, and you’ve got teenagers and you got old men who can be armed and . . . can be useful and who are technically Viet Cong . . . but they don’t have any military capability of consequence.”³⁸  The General also said that “these village defenders had a minimum to do with the outcome of the war.”³⁹  This argument -- discounting the offensive capability of the guerrilla forces -- would be a recurring theme of the general and his defenders in the public debate over the documentary and at the trial.  Westmoreland admitted in the CBS interview that he did not accept the recommendation of Hawkins’ higher estimates for “political reasons.”  He explained “the people in Washington were not sophisticated enough to understand and evaluate this thing, and neither was the media.”⁴⁰  Although he denied the allegation of a conspiratorial cover-up, he acknowledged feeling political pressure to not use the higher order of battle figures.

            George Allen, the CIA’s second in command on Vietnam affairs, rebutted the general’s arguments about the militia forces.  Allen told CBS that the militia forces “were the ones that ambushed our forces when they would enter VC-controlled areas.  They were the ones who booby-trapped.  They were the ones who helped the populace in general build the pungy stakes [sharpened bamboo poles used in booby traps] and other devices that inflicted losses on our forces encroaching in the area.”⁴¹   Allen said that excluding that the militia forces from the order of battle skewed the “concept of the kind of war we were involved [in] . . . .We were not acknowledging that indeed there was an important indigenous South Vietnamese component; that, indeed, it was a civil war.”⁴²

            The CBS program also alleged that the rate of infiltration into South Vietnam from the regular forces of the North was also intentionally underestimated in the months before Tet and, that afterwards, General Westmoreland’s chief of estimates, Colonel (later General) Daniel Graham, tampered with a computer database after the offensive to cover-up the matter.  Mike Wallace explained that the official estimate of enemy strength in the south just before Tet , numbering some 224,000, did not make sense if 50,000 of the enemy had been killed in the offensive and even more were wounded.  Wallace asked “If so many Viet Cong had been taken out of action, the question had to be asked: Whom were we fighting?”⁴³  General Graham vociferously denied altering the computer memory, or of withholding higher estimates of enemy troops strength.  He told CBS, “Nobody that I know of blocked any reports . . . . I’m not that dumb.”⁴⁴

            The main argument of the program was that General Westmoreland himself had pressured his officers -- and the CIA -- to undercount the enemy.  Under the intense questioning of Mike Wallace, the General sometimes sounded befuddled.  He stammered at some points.  (“I-I-I-I-well-no.  No, no.  I-no.”)⁴⁵  Westmoreland would later say and an internal CBS probe would agree that he was misled about the main subject of the interview (the intelligence estimates), and that he did not prepare to defend himself in the arcane order of battle dispute.  The most troubling part of the documentary for the general, given his stated devotion to old-fashioned virtues of honor and honesty, must have been the statement of one of his former officers.  Producer George Crile asked General Joseph McChristian, “Are there statutes in the Uniform Code of Military Justice that would speak to that situation [falsifying the facts]?”  McChristian said “Not that I’m are of.  But there’s something on a ring that I wear from West Point that the motto is: ‘Duty, Honor, Country.’  [Falsifying intelligence is] dishonorable.”⁴⁶  His honor publicly challenged, General Westmoreland would quickly respond to the CBS documentary, and former military and government officials and members of the media would come to his defense.

            The controversy raised by “The Uncounted Enemy” bore no relation to its success as a television program:  it ranked 72^nd, “dead last,” in the ratings for the week.⁴⁷  The relatively small number of viewers did not stop General Westmoreland from holding a news conference in Washington a few days after the broadcast.  Surrounded by former senior officials and military officers, Westmoreland flatly denied the premise of the program.  While initial media reaction to the program was largely positive, some began to question its accuracy and fairness.  In particular, TV Guide magazine ran an article by Dan Kowet and Sally Bedell, in which they accused CBS of sloppy journalism and bias.

            In response to the article, CBS appointed senior executive producer Burton Benjamin to conduct an internal investigation of “The Uncounted Enemy.”  Benjamin interviewed CBS employees who worked on the program, screened all the videotape of the interviews, and investigated the process of making the show.  Benjamin found multiple flaws in the program.  For instance, nine former officials appeared in the program to accuse the general of have conspired to undercount the enemy.  Although many people could have disputed the charge, only Westmoreland and General Graham appeared in the show to rebut the allegations.  Walt Rostow, a former White House advisor on the Vietnam War, was interviewed, but his comments that President Johnson was informed about the intelligence dispute over the order of battle and that there was no conspiracy were not used.  Benjamin also found several violations of CBS news standards, including its failure to identify the former CIA official Sam Adams as a paid consultant, which might have led some viewers to question the credibility of his allegations because of his financial stake in the program.  Also, former CIA official George Allen was interviewed twice after Crile was disappointed with the first take because he felt Allen looked ill at ease.  In an effort to make Allen feel more comfortable about the interview, Crile showed him the videotapes of other officials who said there was a conspiracy.  Obviously, Westmoreland was not given the opportunity for a second interview in which to reformulate his answers.

            Benjamin also found that the CBS interview technique made Westmoreland look guilty.   Benjamin wrote that Westmoreland was “shot in extreme close up – what cameramen call a choker, under the chin and up to the hairline.”  The General was seen to be sweating and licking his lips, “the personification of a man ill at ease and growing angrier.”⁴⁸  In contrast, Wallace was filmed from an angle further back, and appeared more at ease.  Benjamin also found that there had been factual errors and sloppy editing of interviews in which people were seen to respond to different questions from the ones they were actually asked.

            In his final report completed in July 1982, Benjamin concluded that “the basic story, the premise . . . could not be dismissed,” but the program “in its execution . . . was seriously flawed.”⁴⁹  He further concluded that “a ‘conspiracy,’ given the accepted definition of the word, had not been proved,” and that “friendly witnesses had been coddled in the interviews, while those opposing the thesis -- Westmoreland and Graham -- had been treated harshly.”⁵⁰  “What was involved,” Benjamin wrote, “was the essence of good journalistic practice -- fairness, accuracy, balance.”⁵¹  In releasing Benjamin’s conclusions, CBS stated that, despite the criticisms of the program contained in the report, the network stood by its broadcast, but within weeks CBS would be faced with the prospect of defending “The Uncounted Enemy” in court. 

            After CBS refused Westmoreland’s demands for monetary compensation and a full retraction to be aired on the network, the general in September 1982 filed a $120-million dollar libel lawsuit against CBS and those involved in the program, including Adams, Crile, and Wallace.  The lawsuit, first filed in Westmoreland’s home state of South Carolina, was eventually moved to New York City, where CBS had its headquarters.  CBS filed a motion in May 1984 to dismiss the lawsuit on several grounds, including that the First Amendment to the Constitution protected CBS “from a libel action brought by a high public official challenging commentary on his performance of the duties of his office.”  On September 24, 1984, Judge Pierre Leval rejected the CBS motion because of several of the mistakes in the program that raised “triable questions of knowing or reckless falsity.”⁵²  At this point, it was clear to Judge Leval and many observers that CBS had committed several mistakes in “The Uncounted Enemy.”  Whether these mistakes amounted, in legal terms, to “a reckless disregard” of the truth that libeled the general would never be determined before a settlement was reached in the lawsuit.  However, evidence presented at the trial before the settlement would raise important and controversial historical issues concerning the antagonism between the military and the media in Vietnam and the military’s underestimation of the strength and effectiveness of the irregular militia forces of the Communist enemy.

            The trial opened on October 11, 1984 in New York City, and while CBS was officially the defendant in the case, General Westmoreland and his war record were also on trial.  In bringing the lawsuit, Westmoreland also invited CBS to present evidence that called into question his actions as commander.  After opening statements, Westmoreland’s lawyers called as witnesses a series of former high-level officials who had served in the Johnson administration, including defense secretary Robert McNamara, ambassador to South Vietnam Ellsworth Bunker, White House advisor Walt Rostow, and Westmoreland’s civilian chief of pacification, Ambassador Bob Komer.  They testified that there was no cover-up of enemy troop strength and that President Johnson received the intelligence he needed to make decisions. They also denigrated the fighting capacity of the Communist militia forces at the heart of the order of battle dispute.

            General Daniel Graham, who was an intelligence officer as a colonel during the Vietnam War, testified on these matters, and also offered opinions about the Tet offensive and the media’s coverage of the battle.  Graham argued that the Communist forces at the time of Tet “were literally scraping the bottom of the barrel” by sending seriously wounded soldiers back into combat and pressing into service young villagers who did not know how to fire their weapons.⁵³  He described the Tet offensive as “an all-out effort” with a total attacking force of “no greater than 85,000.”⁵⁴  Graham said that this figure was in line with the under 300,000 total-force estimate reported by Westmoreland.  Like his former commander, Graham believed that the U.S. military had won the battle at Tet.  He declared: “I believed from the time of the Tet offensive that the communist forces had been militarily whipped in Vietnam,” but that the war had been lost “politically.”⁵⁵  He said that the political decision was made to withdraw “just as we were making great headway,” and he claimed that the media had played a role in the political defeat.⁵⁶  Graham’s testimony agreed with the hard-line position outlined by Westmoreland in his memoirs.

The centerpiece of the plaintiff’s case was the dramatic testimony of Westmoreland himself -- an imposing figure by all accounts, with his famous jutting jaw and distinguished appearance.  Westmoreland downplayed the importance of the order of battle, claiming that he never made use of it.  He said the order of battle “was really historic data, and it was not something that was useful to me.”⁵⁷  The general said he focused on current intelligence about enemy troop movements and disposition.  However, the historical record undercuts the general’s claim that the order of battle was not important.  Military and CIA officials held a series of meetings in the months leading up to Tet to hammer out an agreement on the order of battle dispute and much bureaucratic effort was spent in trying to sort out the proper numbers for the enemy.

            Westmoreland also denigrated the threat posed by the so-called self-defense and secret self-defense militias, the type of irregular forces that CBS alleged the general and his staff had undercounted.  Members of these militias defended local villages under Communist control, and carried out a variety of military tasks, including sniping at American and South Vietnamese troops, setting booby traps, laying land mines, and performing auxiliary functions for the enemy’s main forces.  Westmoreland said he focused on these main forces because they were “dangerous,” “organized, well equipped units” that posed the greatest threat to his troops.⁵⁸   The General repeatedly called the militia units “home guard types,” and he said these units were made up of old men, women, and children.  Westmoreland said these militia forces “were really not a threat and they were not dangerous to us because they were confined to the hamlets.”⁵⁹  Westmoreland acknowledged that these forces “dug fortifications and put in punji stakes” and carried supplies for main force units, but he repeated “they were not a significant military element.”⁶⁰   However, CBS would call as witnesses common soldiers, CIA officials, and even some members of Westmoreland’s own staff who would offer compelling testimony about the casualties caused by land mines and booby traps, the danger posed by apparently friendly villagers who were in fact enemy guerrillas, and the importance of securing hamlets, where the war largely was being fought.  Whatever the gender and age of the militia members, they inflicted serious damage to American forces and made the task of pacifying the countryside very difficult.⁶¹

            The general and his lawyers employed some courtroom theatrics to emphasize that, according to Westmoreland, no one in his command ever complained about being asked to undercount enemy troops.  The lawyers introduced into evidence a card that Westmoreland said he gave to every officer in the war.  The card contained a list of fifteen points, including “Give priority to matter [sic] of intelligence, counterintelligence and timely and accurate reporting.”  Another point was to “Maintain an alert ‘open door’ policy. . . on complaints and a sensitivity to detection and correction of malpractices.”⁶²  The general said that no one ever came to him complaining that they had been ordered to “cut,” “alter,” “suppress,” or “distort” intelligence.⁶³  Of course, the CBS program accused the general himself of ordering the suppression of higher estimates of the enemy, so perhaps it would have been difficult for anyone to complain to him about the matter.

            Westmoreland also testified at some length about his perceptions regarding media coverage of the war.  He noted that Vietnam was the first war to be covered by television, and that “this was a unique experience for those of us on the battlefield and it was a unique experience to the media.”⁶⁴  The general praised his troops, but said that “[t]hey never thought -- and I got this everywhere I went -- they were getting a fair shake from the media.”⁶⁵  As discussed above, the war reporters had a different view: they stated that the ordinary soldiers appreciated the media’s efforts, while the command did not.  Westmoreland admitted he and other top military officials “were sensitive to the way the war was being reported,” and he said, “We would have to be dummoxes [sic] if we weren’t.”⁶⁶  Negative press coverage, he argued, was detrimental to troop morale.  Regarding the order of battle, Westmoreland said that to state publicly that American troops were fighting “a hundred thousand more people” than previously estimated “would have been terribly detrimental” to morale, and would be a “distortion” since the additional enemy forces “were basically civilians” and “were not fighters.”  The troops, he argued, would have asked “‘What the hell are we doing.  We been doing [sic] a great job and now we find out that the enemy is increased.’  The enemy wasn’t increased at all.” ⁶⁷  Here, then, is Westmoreland’s argument: negative press coverage hurt troop morale and reports of an increase in the number of Communist enemy forces would further erode confidence.  In addition, the general believed the militia forces were not much of a threat to his troops anyway and to add the irregular units to the order of battle was militarily unsound.  When their turn came to present evidence, the lawyers for CBS would successfully counter the argument that the militia troops posed no real threat.

            Westmoreland’s battle with the news media in Vietnam was of course revived in the Mike Wallace interview for “The Uncounted Enemy.”  The general testified in court about his ordeal at the hands of Wallace.  He said that he felt he “was not participating in a rational interview,” and he described it as “an inquisition,” an ambush, and “a lynching.”⁶⁸  (The judge told the jury to disregard the general’s characterization of the interview on the grounds that it was prejudicial, but he allowed Westmoreland to describe his own reactions and emotions during the ordeal.)  Westmoreland said the interview angered him and that he was not prepared to focus on the order of battle controversy.  He testified that after the interview, he told Crile and Wallace, “I have been rattlesnaked.”⁶⁹

            The lawyers for CBS also called a parade of witnesses of former government officials and military officers from the Vietnam War.  In general, these witnesses were less senior than the ones who testified on Westmoreland’s behalf.  In fact, in another example of courtroom theater, the defense called two ordinary soldiers from the war to testify about the impact of booby-traps and mines set by irregular forces and the ease with which these devices could be made.  For example, Army Reconnaissance Specialist Daniel Friedman, a decorated, twice-wounded combat veteran, testified that mines and booby traps were his unit’s “primary cause of concern.”⁷⁰  He said that when his unit was on patrol, they would pass apparently friendly villages, but on their return would exchange fire with the enemy.  According to Friedman, he and his fellow soldiers would later recognize the bodies of some of the enemies killed as “these same people that we saw waving to us on the side of the road.”⁷¹   He added that “many of these mines or booby traps . . . were made of some of these same type of C-ration cans that we have maybe previously thrown away or given these people.⁷²  Friedman said that  he “saw too many of my buddies go down because of [mines and booby traps] not to be concerned about them.”⁷³  He then took a fragmentation grenade and demonstrated to the jury how easy it was to set a booby trap.  Brewin and Shaw, in Vietnam on Trial, reported that the jury seemed “fascinated” by Friedman’s testimony, and they quoted Westmoreland’s lead attorney, Dan Burt, as saying this was a turning point in the case:  “It was devastating.  And it was a total surprise.”⁷⁴  The testimony had brought the complex order of battle controversy down to the level of an ordinary soldier who had had to deal with the type of irregular forces Westmoreland had dismissed as inconsequential.

            Other officials testified specifically for the defense about the order of battle controversy.  Among those testifying was George Allen, who had been the CIA’s number two official for Vietnamese affairs.  Allen said that the “order of battle is fundamental to military intelligence.  It’s your starting point for understanding the enemy force that’s confronting you in any kind of situation.”⁷⁵   He said that in a war of attrition, a commander needs to know how many enemy troops he is facing in order to determine whether he is winning.  Allen declared, “In Vietnam it [the order of battle] was not an academic exercise.”⁷⁶  He asserted that the principal national security issue confronting Washington in 1966 and 1967 was whether the United States was winning the war of attrition in Vietnam, and a key component of that question was how many enemy troops were there.  On this point, he specifically took issue with Westmoreland’s stated denigration of the importance of the order of battle.

            Allen also maintained that the irregular militia forces had been included in the order of battle prior to 1967.  “The guerrilla militia forces,” he testified “were . . . an integral part of the communist military force structure” in harassing and ambushing troops, terrorizing the populace, and supporting their own main force units.⁷⁷  Allen said studies had estimated that self-defense militia forces inflicted as much as 40 percent of U.S. losses.  The CIA official deplored what he called the “obvious shortcomings” of the order of battle of Westmoreland’s command at the end of 1966.⁷⁸  As discussed earlier, the bureaucratic tussle between the CIA analysts and MACV, led by Westmoreland, resulted in a compromise: the militia forces were not included in the order of battle, as reflected in the so-called Special National Intelligence Estimate 14.3-67, which was released in November 1967.   Instead, the irregular forces were included in a separate category because, in line with Westmoreland’s thinking, they allegedly did not pose a threat to U.S. forces.

            Allen testified that he thought the new estimate “was essentially a dishonest piece of paper” that “was misleading in terms of the picture it made available to the policymakers.”⁷⁹  Allen said that he told his colleague, analyst Sam Adams, that “publication of that estimate was the mistake of the century.”⁸⁰  He said that he believed the CIA “had sold out” its “professional integrity” and “honesty” in going along with Westmoreland’s command in removing the militia forces from the calculations of enemy troops strength.⁸¹  He said that the new estimate “totally misrepresented the nature and scope of the enemy threat.” ⁸²  Allen testified that the new total was reported as being under 250,000, but that it should have been much higher to reflect the militia forces.

            CIA analysts were not the only former officials to testify on behalf of CBS.  Some members of General Westmoreland’s staff also testified for the defense, including his chief of intelligence in 1967, General Joseph McChristian, who also argued for the importance of the order of battle.  He explained that “[t]he intelligence officer must always keep in mind that he is responsible to provide timely, accurate, an adequate amount of the big picture, and usable intelligence on the enemy, so that all decision-makers . . . know the facts concerning the enemy, so that they may arrive at sound decisions.”⁸³  McChristian stated that political considerations should play no role in order of battle estimates: “The facts should speak for themselves in order to give an honest, true picture of the enemy.”⁸⁴

            McChristian testified that he thought, like Allen, that the militia members should have been included in the order of battle for much of the same reasons the CIA official cited: these militias were a key component of the enemy’s forces and they caused a significant number of American casualties.  McChristian countered Westmoreland’s assertion that the militias did not matter because they were at the hamlet and village level, by saying, “from the point of view of the enemy, that was their real battleground.”⁸⁵  McChristian said the irregular forces “were adversely affecting our pacification program.”⁸⁶

            McChristian’s most important testimony regarded an encounter with General Westmoreland in early May 1967, when the intelligence chief brought a draft cable he intended to send to the Commander in Chief Pacific and the Joint Chiefs of Staff detailing greatly increased numbers of enemy forces in the order of battle.  McChristian said that he was convinced that his staff was able “to collect adequate intelligence on the strength” of the militia forces “that increased the size of the intelligence figures . . . by a magnitude of almost two to one.”⁸⁷  He further stated that this was a conservative estimate.  He said that Westmoreland responded to the draft cable by saying, “If I send that cable to Washington, it will create a political bombshell.”⁸⁸  Upon further questioning, McChristian reaffirmed the accuracy of this statement, and he stated that the commander did not inquire about the intelligence supporting the new estimates.  McChristian offered his opinion that it was improper for a military officer to withhold a report based on political considerations.

            Westmoreland had been asked about this encounter during his time on the stand, and he flatly denied using the words “political bombshell.”  “Bombshell,” he averred, “is not a part of my lexicon.”⁸⁹  (A strange statement, perhaps, for a military man to make.)  Westmoreland said he told McChristian that regarding the self-defense militia forces, “we are not fighting those people, they are basically civilians.  They don’t belong in any . . . numerical representation of the military capability of the enemy.”⁹⁰  The general also testified that the estimates “would be terribly misleading and could be misinterpreted by people not familiar with the details of this irregular category.”⁹¹  He also tellingly remembered saying to McChristian something like, “Joe, if this cable goes in without further explanation it will create a public relations problem.”⁹²  McChristian’s report about the “political bombshell” statement was certainly a serious matter, but even if Westmoreland’s denial is accurate, he did admit having been concerned about the public reaction to the higher enemy estimates.

            Hundreds of thousands of pages of official documents were de-classified and released to the public as part of the litigation process, and many of these documents were used as exhibits in the Westmoreland trial.  These documents clearly show that Westmoreland and his superiors were intensely concerned about the press reaction to higher troop estimates.⁹³  In a March 9, 1967 cable to Westmoreland, Chairman of the Joint Chiefs of Staff, General Earle G. Wheeler, said that new figures of “battalion and larger size enemy-initiated actions” could “blow the lid off of Washington” if they “should reach the public domain.”  General Wheeler said, “Please do whatever is necessary to insure these figures are not . . . released to news media or otherwise exposed to public knowledge.”⁹⁴

            In the CBS documentary, Mike Wallace confronted Westmoreland with an August 20, 1967 cable on higher troops estimates that the general reportedly had sent to his superiors.  In fact, Westmoreland’s deputy, General Creighton Abrams, Jr. sent the cable, but Westmoreland testified at the trial that he agreed with the contents of the message.  The cable shows that the U.S. command in Vietnam, not just Westmoreland personally, was concerned about press coverage if higher enemy troop estimates had been released to the public.  Abrams said that including the self-defense militia figures would have increased the order of battle total to “420,000 – 431,000.”  He said, “This is in sharp contrast to the current overall strength figure of about 299,000 given to the press” in Saigon.  Abrams gave the standard argument that these irregular forces were militarily insignificant, but that “[t]he press reaction to these inflated figures is of much greater concern.”  He predicted that the press would seize on the increase, and that “[a]ll available caveats and explanations will not prevent the press from drawing an erroneous and gloomy conclusion as to the meaning of the increase.  All those who have an incorrect view of the war will be reinforced and the task will become more difficult.”⁹⁵

            As mentioned before, the CIA and the military intelligence officers in Vietnam held a series of meetings in 1967 to resolved their dispute over whether militia forces should be included in the order of battle.  The conclusive meetings were held in Saigon in September 1967.  George Carver, the CIA officer in charge of Vietnam affairs and the immediate boss of George Allen, attended the meeting, and sent several cables to CIA director Richard Helms.  At first, Carver was pessimistic about reaching an agreement with the military.  He cabled on September 10 that “[o]ur mission frustratingly unproductive since MACV stonewalling, obviously under orders” not to include the militia forces in the order of battle.  Carver predicted “serious discussion” would be impossible until “I can persuade Westmoreland to amend those orders.”  What was the nature of those orders?  Carver indicated that Westmoreland might in fact have set a 300,000 enemy troop level ceiling, as the CBS documentary alleged.  Carver wrote that “[a] variety of circumstantial indicators -- MACV juggling of figures . . . MACV behavior, and tacit or oblique lunchtime and corridor admissions by MACV officers . . . -- all point to inescapable conclusion that General Westmoreland . . . has given instruction tantamount to direct order that VC strength total will not exceed 300,000 ceiling.  Rationale seems to be that any higher figure would not be sufficiently optimistic and would generate unacceptable level of criticism from the press.”  Carver agreed with the military, however, that the “root problems . . . lie much more in political public relations realm than in substantive difference.”⁹⁶

            In another cable dated September 12, Carver told Helms the meeting was “at an impasse.”  Carver’s position was that the CIA and the military should proceed to estimate each category before determining what any final total should be.  Carver said that he “presented my thoughts on the public relations problem.  Noting that a clearing of the atmosphere, no matter how much short term static produced, would benefit our credibility posture, that it was essential to establish a valid base line we would never have to retroactively adjust upward.”  Carver reported that Ambassador Komer, the chief of efforts to pacify the countryside, “launched into an hour-plus monologue, reviewing his and Westmoreland’s problems with the press, their frustrating inability to convince the press (hence the public) of the great progress being made, and the paramount importance of saying nothing that would detract from the image of progress or support of the thesis of stalemate.”⁹⁷

            The tone of Carver’s cables on September 13 and 14 changed.  He reported that an agreement had been reached on the order of battle: the estimates would not include the self-defense militias, as the military had wanted all along.  Carver said that “[t]here would be no numerical estimate of the size and strength of the self defense, secret self-defense, and other similar VC organizations.  Instead, these would be textually explained.”⁹⁸  The final result of the Saigon meeting was Special National Intelligence Estimate 14.3-67, which listed a total enemy fighting strength of 225,000 to 250,000, with a separate statement on the irregular forces.  This was the estimate that incensed George Allen of the CIA, as noted above.  Some have argued that the compromise was merely a matter of bureaucratically packaging the numbers, but the documents make clear that the reason for this lower estimate was fear of an adverse press reaction to reports of an enemy troop strength approaching 500,000. 

            The jury in the Westmoreland vs. CBS trial would never render judgment on these matters or decide whether “The Uncounted Enemy” had libeled the general.  On February 17, 1985, Westmoreland and CBS reached an agreement to settle the lawsuit.  In a joint statement released a day later, the two parties stated that they “trust their actions have broadened the public record” on the Vietnam War.  They said that they “believe that their respective positions have been effectively placed before the public for its consideration and that continuing the legal process at this stage would serve no further purpose.”  CBS declared that it “respects Gen. Westmoreland’s long and faithful service to his country and never intended to assert, and does not believe, Gen. Westmoreland was unpatriotic or disloyal in performing his duties as he saw them.”  For his part, the general expressed his respect for “the long and distinguished journalistic tradition of CBS and the rights of journalists to examine the complex issues of Vietnam and to present perspectives contrary to his own.”⁹⁹

Most observers concluded that the settlement favored CBS because it did not contain an explicit apology for the broadcast or any monetary compensation, and that Westmoreland probably could have achieved a much stronger settlement before going to trial.  The Washington Post reported that many Westmoreland supporters believed that the general had “run out of money” to continue the costly litigation against a powerful and rich television network. Several conservative groups had helped fund the litigation, and one such group, the Capital Legal Foundation, represented the general.  However, donations had apparently dried up.  Even so, the Washington Post reported that the general’s conservatives backers “reacted with shock and sorrow” at the settlement.¹⁰⁰  The judge’s draft instructions to the jury also played a role in the settlement.  Brewin and Shaw, in Vietnam on Trial, report that Judge Leval set a high standard of proof that the broadcast was knowingly or recklessly false.  The judge would have asked the jury for “clear and convincing evidence” of falsity instead of the less rigorous standard of “a preponderance of evidence.”¹⁰¹ The high standard of proof forced the chief lawyer for Westmoreland, Dan Burt, to seek the best settlement he could get.

The litigation was also expensive for CBS, and perhaps this played a role in the settlement.  Brewin and Shaw report that CBS’s expenses were estimated at five to ten million dollars.  The settlement also meant the network did not have to take a chance on the jury’s verdict.  Both sides claimed victory, however.  Westmoreland said that the joint statement amounted to an apology that cleared his name and that was all he was after.  CBS released a statement that declared, “We continue to stand by the broadcast.”  CBS added: “Nothing has surfaced in the discovery and trial process now concluded that in any way diminishes our conviction that the broadcast was fair and accurate and that it was a valuable contribution to the ongoing study of the Vietnam era.”  In a jab at Westmoreland and his conservative backers, CBS said, “We regret that Gen. Westmoreland and his supporters felt compelled to bring the suit . . . The complex and controversial issues of the Vietnam war are more appropriate to ongoing public inquiry and debate than to judicial determination.”¹⁰²

Mike Wallace did not have an opportunity to testify at the trial before the settlement, but he has remained a staunch defender of the broadcast.  In his memoirs, co-written with Gary Paul Gates and published in 1984, while the libel case was still in litigation, Wallace said the documentary could have included any number of supporters of General Westmoreland’s position.  However, Wallace said, “That, after all, was the official position, the party line, and it was hardly news.  What was news was the fact that some of the top officers in Westmoreland’s own command had decided to end years of silence by making such dramatic disclosures on national television.”¹⁰³  Wallace argued that “the substance of ‘The Uncounted Enemy’ was sound and above reproach” -- despite the TV Guide article and that Benjamin report which detailed a number of mistakes and omissions.¹⁰⁴  In a 1997 interview with the Fox news network to discuss his long career, Wallace flatly stated, that “General Westmoreland lied” as part of a pattern of official prevarication regarding the Vietnam War.  This was a restatement of the argument made by correspondents from the conflict: the military had deliberately misled the public. In reference to the settlement of the lawsuit, Wallace said, “Westmoreland finally declared victory and abandoned the field.  We were dead right on the Westmoreland story.”¹⁰⁵

            In the end, Westmoreland and CBS agreed to disagree: they settled the lawsuit by leaving it up to the public and posterity to consider the issues raised by “The Uncounted Enemy.”  The settlement precluded the jury from deciding whether Westmoreland had been libeled by a documentary that accused him of manipulating intelligence to deceive the public, the media, and the civilian leadership.

This paper has sought to place the Westmoreland vs. CBS trial in the historical context of the antagonism between the military and the media during the Vietnam War, and to examine the historical issues left unresolved by the settlement.  The trial testimony and documents used as exhibits indicate Westmoreland and his command may not have been involved in a conspiracy and lied to the press and public about the strength of the enemy forces in Vietnam.  It appears, given the high-level involvement of both military and civilian leaders in the order of battle dispute that the Johnson administration was aware of the controversy and was not lied to.  However, this paper has shown that, because of their intense preoccupation with media coverage of the war, Westmoreland and the Military Assistance Command, Vietnam did not disclose the full extent of the enemy forces in Vietnam.  They did not want to include a greater number of militia forces in the order of battle out of concern that to do so would raise questions about the conduct of the war in the months before the Tet offensive.  The disagreement over the irregular forces resulted in bureaucratic in-fighting and a papering over of the dispute, but it also reflected the nature of the war in Vietnam.

As Westmoreland and his supporters testified at the trial, there was a military rationale for not including the militia forces in the order of battle: they were allegedly old men, women, and children with no offensive military capability.  However, any cursory examination of accounts of the war, including the memoirs of war reporters discussed in this paper and the trial testimony of Friedman, Allen, McChristian, shows the deadly effect of booby traps and mines placed by irregular forces, and the difficulty in distinguishing the enemy from the civilian populace.  It may very well be, as recent scholarship suggests, that the Tet offensive was a military victory for the United States and its South Vietnamese allies, as General Westmoreland and his supporters argued.  However, it is too simplistic to blame the press for the misperception of defeat:  General Westmoreland and his command bear some responsibility for having been overly optimistic and not giving a full accounting of the strength and nature of the enemy faced in Vietnam.  Perhaps if they had, Tet would not have been so shocking to the American public, and the psychological impact of the offensive would have been minimized, thereby changing the ultimate outcome of the conflict.

 

 

 

 

 

 

 

 

Endnotes

¹Quoted in Rodney A. Smolla, Suing the Press: Libel, the Media, and Power  (New York: Oxford University Press, 1986), 199.

²Brewin and Shaw, Vietnam on Trial (New York: Atheneum, 1987), viii.

³Adler, Reckless Disregard (New York: Alfred A. Knopf, 1986), 26.

⁴Kowet, A Matter of Honor, (New York: Macmillan, 1984), 215.

⁵Ibid., 305-306.

⁶Smolla, 200.

⁷Ibid., 200.

⁸William C. Westmoreland, A Soldier Reports (New York: Dell, 1980), 12.

⁹Ibid., 502.

¹⁰Ibid., 7.

¹¹Ibid., 104.

¹²Ibid., 105.

¹³Ibid., 70, 82.

¹⁴Ibid., 83.

¹⁵Ibid., 414.

¹⁶Ibid., 436.

¹⁷Ibid., 422.

¹⁸Ibid., 542.

¹⁹Ibid., 554-55.

²⁰Ibid., 558.

²¹Ibid., 253.

²²Ibid., 252-53.

²³Peter Arnett, Live from the Battlefield: From Vietnam to Baghdad, 35 Years in the World’s War Zones (New York: Simon and Schuster, 1994), 169.

²⁴Ward Just, To What End: Report from Vietnam (New York: Public Affairs, 2000), 14-15.

²⁵Michael Herr, Dispatches (New York: Avon, 1980), 152.

²⁶Just, 77.

²⁷Ibid., 78.

²⁸Arnett, 215.

²⁹Ibid., 146.

³⁰Herr, 13-14.

³¹Ibid., 74.

³²Arnett, 245.

³³Just, xiii.

³⁴Ibid., xxii.

³⁵Ibid., 66.

³⁶ “The Uncounted Enemy: A Vietnam Deception” (Transcript), CBS Reports, January 23, 1982, p. 1.  Transcript included as appendix to Burton Benjamin, The CBS Benjamin Report: CBS Reports, “The Uncounted Enemy: A Vietnam Deception”:  An Examination (Washington: the Media Institute, 1984).

³⁷”The Uncounted Enemy” (Transcript), 2.

³⁸Ibid., 5.

³⁹Ibid., 12.

⁴⁰Ibid., 6.

⁴¹Ibid., 12.

⁴²Ibid., 13.

⁴³Ibid., 23.

⁴⁴Ibid., 19.

⁴⁵Ibid., 25.

⁴⁶Ibid., 12.

⁴⁷Burton Benjamin, Fair Play: CBS, General Westmoreland, and How a Television Documentary Went Wrong (New York: Harper and Row, 1988), 22.

⁴⁸Ibid., 12.

⁴⁹Ibid., 159-60.

⁵⁰Ibid., 163.

⁵¹Ibid.,164.

⁵²William C. Westmoreland v. CBS, et al., No. 82 Civ. 7913 U.S. District Court for the Southern District of New York (24 September 1984) 2, 6.

⁵³Trial transcript, Vietnam, A Documentary Collection – Westmoreland vs. CBS (New York: Clearwater, 1985), microfiche, p. 1866.

⁵⁴Ibid., 1866-7.

⁵⁵Ibid., 2155.

⁵⁶Ibid., 2156.
⁵⁷Ibid., 3433.

⁵⁸Ibid., 3421.

⁵⁹Ibid., 3470.

⁶⁰Ibid., 3470.

⁶¹The author of this paper sought to find points of agreement in the testimony for

Westmoreland and CBS rather than argue for or against a Westmoreland-led conspiracy.  What was involved in the order of battle dispute was complex and cannot be categorically labeled a conspiracy.  The testimony does agree that General Westmoreland was so concerned with press coverage that he did not want to count the militia forces in the order of battle. Westmoreland had a military rationale for not including the militia members, but this paper disagrees with his reasoning.

⁶²Ibid., 3582-83.

⁶³Ibid., 3585.

⁶⁴Ibid., 3599.

⁶⁵Ibid.

⁶⁶Ibid., 3600.

⁶⁷Ibid., 3600-01.

⁶⁸Ibid., 3696-70.

⁶⁹Ibid., 3712.

⁷⁰Ibid., 8713.

⁷¹Ibid.

⁷²Ibid.

⁷³Ibid., 8714.

⁷⁴Brewin and Shaw, 296.

⁷⁵Westmoreland vs. CBS, 7713.

⁷⁶Ibid.

⁷⁷Ibid., 7715.

⁷⁸Ibid., 7723.

⁷⁹Ibid., 7756.

⁸⁰Ibid., 7757.

⁸¹Ibid., 7757.

⁸²Ibid., 7758.

⁸³Ibid., 9003.

⁸⁴Ibid., 9004.

⁸⁵Ibid., 9019.

⁸⁶Ibid., 9021.

⁸⁷Ibid., 9024.

⁸⁸Ibid., 9027.

⁸⁹Ibid., 3527.

⁹⁰Ibid., 3468.

⁹¹Ibid., 3469.

⁹²Ibid., 3527.

⁹³The author of this paper believes the documents used as exhibits at the trial more accurately show what officials were thinking at the time of the order of battle dispute than the trial testimony, which could be tailored to suit the needs and motives of the witnesses.  The documents are contemporaneous accounts of the intelligence controversy.  They demonstrate the intense concern of Westmoreland and other military officers and government officials about adverse press coverage if the order of battle was suddenly increased to reflect the estimated number of militia members.

⁹⁴Exhibit 231A, Ibid.

⁹⁵Exhibit 252, Ibid.

⁹⁶Exhibit 256B, Ibid.

⁹⁷Exhibit 258AA, Ibid.

⁹⁸Exhibit 258B, Ibid.

^99”Westmoreland and CBS Joint Statement: Continuing ‘Would Serve

No . . . Purpose,’” Washington Post, 19 February 1985, p. A10.

            ¹⁰⁰James R. Dickenson and Eleanor Randolph, “Halting of Suit Dismays Westmoreland Backers,” Washington Post, 21 February 1986, p. A4.

            ¹⁰¹Brewin and Shaw, 354.

¹⁰²”CBS Statement: ‘We Continue to Stand by the Broadcast,’” Ibid.,

19 February 1985, p. A10.

¹⁰³ Mike Wallace with Gary Paul Gates, Close Encounters (New York: William

Morrow and Company, 1984), 441.

            ¹⁰⁴Ibid., 447.

            ¹⁰⁵Mike Wallace, interview Bill O’Reilly, “The O’Reilly Factor,” Fox News Network, Lexis-Nexis Academic Universe, 4 May 2000.