The Uncounted Enemy: A Vietnam Deception

CBS Reports documentary broadcast January 23, 1982

‘He has met his ‘Master’ in the Field…’

-President Lyndon Johnson to General William Westmoreland

December 23, 1967

Bro. Westmoreland v. CBS

From Wikipedia, the free encyclopedia

Westmoreland v. CBS was a $120 million libel suit brought in 1982 by former U.S. Army Chief of Staff General William Westmoreland against CBS, Inc. for broadcasting on its program CBS Reports a documentary entitled The Uncounted Enemy: A Vietnam Deception. Westmoreland also sued the documentary’s narrator, investigative reporter Mike Wallace; the producer, investigative journalist and best-selling author George Crile, and the former CIA analyst, Sam Adams, who originally broke the story on which the broadcast was based.

Westmoreland’s claims were governed by the landmark New York Times Co. v. Sullivan decision, which held that, in order to recover for defamation, a “public figure” like Westmoreland must prove that the defendant made the statements in question with “actual malice” (essentially, with knowledge, or reckless disregard, of falsity).[1]

The suit was originally filed in state court in South Carolina, but was transferred to the United States District Court for the Southern District of New York.

The trial ended in February 1985 when the case was settled out of court just before it would have gone to the jury.[2]

Circumstances

See also: Order of Battle for the Viet Cong

U.S. Army General William C. Westmoreland served four years in Vietnam, from 1964 to 1968, as COMUSMACV—Commander U.S. Military Assistance Command Vietnam. He was in command during the Tet Offensive, a surprise, country-wide attack on the U.S. forces by the combined forces of the National Front for the Liberation of South Vietnam and the Vietnam People’s Army in 1968. The attack is widely viewed as having contributed to a growing perception in the United States that the U.S. had underestimated enemy strength and resolve, and that, in contrast to assurances from Westmoreland and the Johnson administration, there was no “light at the end of the tunnel.” Walter Cronkite visited Vietnam in February 1968, in the immediate aftermath of Tet, and returned home and gave his famous “mired in a stalemate” on-air editorial. “To say that we are closer to victory today is to believe, in the face of the evidence, the optimists who have been wrong in the past. To suggest we are on the edge of defeat is to yield to unreasonable pessimism. To say that we are mired in stalemate seems the only realistic, yet unsatisfactory, conclusion.”[3] Several weeks later, President Johnson announced that he would not seek reelection.

CBS broadcast the documentary on January 23, 1982.[4] It contended that Westmoreland had contributed to the public reaction to Tet by manipulating intelligence about enemy strength in order to create the impression of progress.[1] Westmoreland contended that politics had not influenced the intelligence reports of his command.[5] Intelligence officers working under Westmoreland and contemporaneous classified documents supported the documentary’s contention that Army intelligence in Westmoreland’s command had been manipulated for political purposes. Other officers denied any such manipulation.

Shortly after trial in the Westmoreland case began, another famous libel trial got underway in the same federal court house: Then former Israeli Defense Minister Ariel Sharon‘s suit against TIME magazine. Sharon challenged one passage in a lengthy article detailing the findings of the official Israeli investigation into Sharon’s responsibility for the Sabra and Shatila Massacre of Palestinians by Phalangist forces during the Israeli invasion of Lebanon in 1982. On January 25, 1985, the jury in the Sharon case found for the defendant while the Westmoreland v. CBS trial was still in progress. The Sharon jury stated that TIME acted “negligently and carelessly” but did not find evidence of actual malice.[1]

Summary judgment motion

CBS made a motion for a summary judgment, claiming immunity from libel for doing a commentary on a public figure under the precedent established in New York Times v. Sullivan. At the onset, the presiding judge ruled that under New York Times Co. v. Sullivan and the First Amendment, Westmoreland, as a public figure, must prove by “clear and convincing evidence” that CBS acted with actual malice in gathering the evidence and putting it together in the documentary. This is legally a heavy burden of proof and a higher standard than a nonpublic figure would need to sue for defamation.[6]

Trial

A conservative public-interest law firm, Capital Legal Foundation, brought the suit on September 13, 1982 on Westmoreland’s behalf, and its president, Dan Burt, served as Westmoreland’s pro bono attorney.[7] The suit was funded by grants from several conservative organizations, such as the Richard Mellon Scaife Foundation, the John M. Olin Foundation, and the Smith Richardson Foundation whose goals were to kill CBS Reports and turn back the 1964 New York Times v. Sullivan rule.[8] CBS’s defense was led by David Boies of the firm Cravath, Swaine & Moore.

Westmoreland’s case went to trial in October 1984. Westmoreland charged that the investigators asked biased and slanted questions, selectively edited interviews (for example, giving a two-minute excerpt of a 90-minute interview and portraying that selection as representative), and selectively chose persons to interview supportive of CBS’s point of view. He also charged CBS with editing interview tapes dishonestly and taking statements out of context. Westmoreland charged CBS with reckless misstatements of evidence and contended these distortions indicated malice.[6] The allegations about editing were not borne out by the evidence and the ultimate questions at trial became whether the allegations against Westmoreland were true and whether CBS was entitled to believe the high-ranking military officers who made those allegations in their interviews and stuck by them at trial.

CBS defended the documentary as true and called the military officers in question as witnesses at trial. They testified both at deposition and at trial that their criticisms of Westmoreland had been fairly represented in the documentary and they stood by them. Major General Joseph McChristian, Assistant Chief of Staff for Intelligence under Westmoreland, testified at trial that when he had presented new increased enemy strength estimates, Westmoreland had responded that sending these figures to Washington would “create a political bombshell” and would “embarrass my commander in chief [President Johnson].” [9] General McChristian testified that, in withholding these figures, Westmoreland, “in being loyal to the President, was disloyal to his country.”[10]

McChristian’s testimony has been seen as a “dramatic, consequential, and determinative of the outcome.”.[11]

After McChristian stepped down, CBS called another military intelligence officer, Col. Gains Hawkins, who had worked under McChristian and Westmoreland. Hawkins’s testimony supported McChristian’s; Hawkins reaffirmed his allegations in his CBS interviews and in the documentary.

Westmoreland’s counsel, Dan Burt, had been hoping for a simple verdict from the jury, finding for Westmoreland or CBS; that way, if Westmoreland lost, he could claim that the jury concluded that the documentary was false, but under the strict legal standard had been unable to find that CBS had acted with “actual malice.”[12] When the trial court judge, the Honorable Pierre Leval, informed counsel that he intended to ask the jury to render separate verdicts on truth, actual malice, and injury, Burt told the Judge he was concerned, because “If he loses on truth, it will kill the old man.”[13] After the conference with the Judge, Burt met with Westmoreland, and the two men agreed to pursue settlement.

On February 18, 1985, shortly after McChristian’s testimony, with Col. Hawkins still on the stand, and with the five-month trial expected to go to the jury within days, Westmoreland agreed to dismiss the case without payment, retraction or apology from CBS. Both sides agreed to pay their own legal fees, and Westmoreland and CBS released simultaneous public statements. CBS stated that it had never intended to say that “General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them.[1][6] Westmoreland said “General Westmoreland respects 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.”[14]

Westmoreland declared “victory,” but later conceded that his team’s “jury watcher” had concluded he was likely to lose.[15] The New York Times reported that Westmoreland had “surrendered to the evidence that . . . he and some of his aides in Vietnam in 1967 manipulated the estimates of enemy strength, apparently for political effect.” “At the end, he stood in imminent danger of having a jury confirm the essential truth of the CBS report. For, in court, as on the original program, the general could not get past the testimony of high-ranking former subordinates who confirmed his having colored some intelligence information.”[16] One of the jurors, speaking to the press when the trial adjourned, stated “The evidence in favor of CBS was overwhelming.” [17]

Significance

Westmoreland’s decision to dismiss the case before the jury reached a decision prevented an appeal that might have created a legal landmark. Instead, this high-profile case provided a practical demonstration of what many already understood: That any public figure seeking damages for libel must follow the stringent standards set in the precedent of 376 U.S. 254. Further, a public figure must prove actual malice, as required by New York Times Co. v. Sullivan, even in the face of allegations of media misconduct.[1]

Finally, the case demonstrated an old adage: bringing a libel suit is generally a poor way to burnish a reputation. Westmoreland’s suit brought greater attention to the CBS documentary and its allegations against him; the testimony of high-ranking military officers at trial provided further support for those allegations, in a highly public forum. Allegations that otherwise might have been forgotten are now part of any Westmoreland biography.[9][12]

On the other hand, the lawsuit emboldened wealthy companies and political foundations to sue or threaten to sue in order to chill the press and kill unfavorable press. In 1993, General Motors sued NBC over a Dateline report. In response, NBC management fired the news director and producer and issued a public apology in exchange for GM dropping the suit. In 1994, Philip Morris sued ABC News for an unprecedented $10 billion over the Day One report “Smoke Screen” which exposed their manipulation of nicotine levels,[18] but the case was settled without trial and with an apology.[19] In 1995, the Brown & Williamson tobacco company threatened to sue CBS over a 60 Minutes interview of whistleblower Jeffrey Wigand who exposed a similar manipulation of nicotine, but CBS chose to pull the segment.[20]

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The Secret History of the Vietnam Peace Talks: Nixon, Kissinger & Betrayal (2002)

10,543 views Sep 28, 2015

The Paris Peace Accords of 1973 intended to establish peace in Vietnam and an end to the Vietnam War. It ended direct U.S. military combat, and temporarily stopped the fighting between North and South Vietnam. The governments of the Democratic Republic of Vietnam (North Vietnam), the Republic of Vietnam (South Vietnam), and the United States, as well as the Provisional Revolutionary Government (PRG) that represented indigenous South Vietnamese revolutionaries, signed the Agreement on Ending the War and Restoring Peace in Vietnam on January 27, 1973. The agreement was not ratified by the United States Senate.[1][2]

The negotiations that led to the accord began in 1968 after various lengthy delays. As a result of the accord, the International Control Commission (ICC) was replaced by International Commission of Control and Supervision (ICCS) to fulfill the agreement. The main negotiators of the agreement were United States National Security Advisor Henry Kissinger and Vietnamese politburo member Lê Đức Thọ; the two men were awarded the 1973 Nobel Peace Prize for their efforts, although Lê Đức Thọ refused to accept it.

https://en.wikipedia.org/wiki/Paris_Peace_Accords

No Peace, No Honor: Nixon, Kissinger, and Betrayal in Vietnam

August 6, 2002 by Larry Berman (Author)

On April 30, 1975, when U.S. helicopters pulled the last soldiers out of Saigon, the question lingered: Had American and Vietnamese lives been lost in vain? When the city fell shortly thereafter, the answer was clearly yes. The Agreement on Ending the War and Restoring Peace in Vietnam — signed by Henry Kissinger in 1973, and hailed as “peace with honor” by President Nixon — was a travesty.

In No Peace, No Honor, Larry Berman reveals the long-hidden truth in secret documents concerning U.S. negotiations that Kissinger had sealed — negotiations that led to his sharing the Nobel Peace Prize. Based on newly declassified information and a complete North Vietnamese transcription of the talks, Berman offers the real story for the first time, proving that there is only one word for Nixon and Kissinger’s actions toward the United States’ former ally, and the tens of thousands of soldiers who fought and died: betrayal.

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Bruce Robinson on They All Love Jack: Busting the Ripper – ‘Ripperologists are all Freemasons’

Bruce Robinson on They All Love Jack: Busting the Ripper
12,122 views

Nov 3, 2016

Shakespeare and Company Bookshop
4.09K subscribers

This Hallowe’en join us as we welcome the legendary writer and director of Withnail and I, Bruce Robinson, to discuss They All Love Jack, the tale of a gripping quest to discover the identity of history’s most notorious murderer and a literary high-wire act.

Category People & Blogs

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UK Parliament Select Committee – Masons `had role’ in 1999 Northern Ireland ‘Stalker Affair’ case

john stalker

Independenthttps://www.independent.co.uk/news/parliament-select-committee-masons-had-role-in-stalker-case-1095975.html

Paul Waugh

Wednesday 26 May 1999

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The Commons Home Affairs Select Committee published the results yesterday of a two-year inquiry into the influence of masons in public life. […]

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Vietnam War

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From Hell

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The Times: Italy clamps down on masons after mafia links exposed

FBI Director James Comey testifies on Capitol Hill in Washington, Wednesday, May 3, 2017, before the Senate Judiciary Committee hearing: "Oversight of the Federal Bureau of Investigation." (AP Photo/Carolyn Kaster)

The legislation is being proposed after police raids on the four largest freemasonry orders in Italy discovered 193 mob-linked masons on the orders’ secret membership lists in Sicily and Calabria, southern Italy. […]

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The Times: Mafia join Italy’s freemasons to ‘do deals’ with judiciary

FBI Director James Comey adjusts his tie before testifying to the Senate Select Committee on Intelligence hearing on “Russia’s intelligence activities" on Capitol Hill in Washington

Strong links between Italy’s secretive freemasons and the mafia have been exposed by police raids, with 193 crime bosses found to be members of lodges in Calabria and Sicily. […]

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The secret world of female Freemasons – BBC News

female freemasons

Think of the Freemasons and you probably think of a shadowy world of secret handshakes and dark allegations of corruption and even conspiracy. […]

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How the Freemason Harvey Weinstein scandal has become a nightmare for Freemason Ben Affleck, Freemason Matt Damon and Freemason Jimmy Kimmel

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The Oscar-winning producer has been accused of sexual abuse and harassment across a period of decades, with stars like Gwyneth Paltrow and Angelina Jolie coming forward and telling their stories. Weinstein’s alleged behavior has prompted statements from George Clooney, Meryl Streep, Ben Affleck, and Matt Damon, among others, but many in Hollywood are feigning ignorance. And Affleck and Damon in particular have people really riled up. […]

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ABC ‘World News Tonight’ with Bro. James Comey and Bro. David Muir

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Justin Raimondo: Pro-tip for ‘libertarians’ – If you find yourself on the same side as the C.I.A., the F.B.I., the N.S.A. & Kurt Eichenwald, it’s time to re-evaluate […]

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CBC: Out of office, into the woods – Bro. Stephen Harper’s trip to secret Bohemian summer camp – Ex-PM joined male elite California retreat for a ‘nice discussion,’ Bro. Colin Powell says in hacked email

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“Peter: I am back from the Bohemian Grove,” Powell writes. “Surprise, Surprise, I sat next to Stephen Harper a couple of times and had a nice discussion.” […]

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My absence in England last week prevented me from celebrating the acquittal of Mike Duffy in this column, but there are a few points still to be made about it. There was never anything wrong with Mike Duffy padding around promoting the Conservative party while a paid-up senator. MPs do that and there is nothing wrong with senators doing it. There was nothing wrong with Nigel Wright paying Duffy’s alleged excesses on his travel expenses. […]

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