At issue in the Westmoreland case is more than just a war
The complex lawsuit has been called the final battle of the Viet Nam War, a legal struggle over key questions of culpability for America's most agonizing military defeat. Yet there is even more at stake as the case of General William Westmoreland vs. CBS News opens this week in a marble-encased Manhattan federal courtroom. Ultimately in question is the unfettered freedom of the U.S. press to examine critically actions of the nation's Government and public figures, as well as the public's growing impatience with perceived abuses of that freedom. It is likely to be, in the words of Trial Judge Pierre Leval, "a rare debate and inquiry on issues of the highest national importance."
The case involves a 1982 CBS documentary, The Uncounted Enemy: A Vietnam Deception. Westmoreland, who commanded U.S. forces in South Viet Nam from 1964 to 1968, calls the program a "hatchet job" for alleging that he engaged in a "conspiracy" to underreport enemy troop strength. According to the 90-min. broadcast, Westmoreland's command, in its reports to President Lyndon Johnson and the Joint Chiefs of Staff, estimated Viet Cong strength at about 300,000. Many intelligence operatives believed the true figure was closer to 500,000. The program also charges that the Saigon command withheld information about the nearly 25,000 North Vietnamese troops suspected of infiltrating the South each month. These grim statistics were purportedly suppressed in order to foster the image that the U.S. was whining the war.
Westmoreland contends that there was neither conspiracy nor deceit regarding the estimates. Washington officials, he insists, were well aware of a debate between the CIA and military analysts over whether the enemy's "irregular self-defense" supporters should be included in the figures. The defeats suffered by North Viet Nam during the Tet offensive of early 1968, Westmoreland claims, vindicate his command's method of reporting enemy strength. In an internal investigation six months later, conducted after TV Guide had published a cover story on the show titled "Anatomy of a Smear," a CBS official concluded that the word "conspiracy" was not justified and that certain of the network's reporting guidelines had been violated; but both he and CBS insisted that the basic conclusions of the broadcast were correct.
The outcome of the case could go a long way toward deciding whether public figures can ever recover for libel. If Westmoreland wins, the victory will spur other public figures to sue. The press could be so deluged that the First Amendment freedom would mean little. If Westmoreland loses, many public officials may conclude that they have no recourse against an unbridled press.