General Westmoreland libel case

Every Sunday evening, about 35 million Americans sit down to watch a television programme done by the Columbia Broadcasting System, one of the three commercial networks, called '60 Minutes'. It has three segments of 10 minutes each.

It is, to put it mildly, an investigative programme. It roams the earth in pursuit of usually dirty work at the crossroads. Its business is the business of exposing fraud and incompetence in high places, drug racketeers from South America to Miami and beyond, waste and extravagance in departments of the government of the United States, injustice to a group or an individual in the cities, large and small, shady medical clinics, odd religions – less suspect for their faiths than for the millions they gouge out of their believers, convicted murderers languishing in jail who may, in fact, be innocent; 60 Minutes has a very creditable record of forcing retrials and releases.

Thirty-five million steady viewers is about one-sixth of the population. It's an enormous figure for a serious programme. For, as everyone knows, or ought to know, the listening figures for this country, as for Britain and France and Germany and Italy and every other so-called civilised country, they reveal – in the teeth of highbrow claims to the contrary – that everywhere on earth the vast majority of television viewers prefer their own situation comedies, soap operas, sports, games shows and, by way of drama, expensive, glitzy trash, like Dallas or Dynasty.

The four regular 60 Minute reporters, the people who go out and do the digging and are on the scene and who, finally, appear to narrate their segment are so well-known by now that if one or other of them decides to do a special long report, not for 60 Minutes, but for an independent programme, there's likely to be a sizeable carry-over audience.

And so there was, three years ago, on 23 January 1982 when CBS put out a 90-minute programme called 'The Uncounted Enemy, a Vietnam Deception'. It had taken two years to put together and it was narrated by one of the regular 60 Minute reporters and the toughest, Mike Wallace. It drew an audience of somewhere between eight and ten millions. It was enough to revive dormant interest in the Vietnam war, to provoke new doubts in the general public and to arouse frustrated indignation among the retired security advisers of President Johnson, but most of all, in the bosom of the now-retired, General C. Westmoreland, who was commander in Vietnam from 1964 to '68, because the main charge of the programme was fired directly at him.

Indeed, its stated thesis was that General Westmoreland's command had engaged in a conspiracy – the word was stressed – in 1967 to pretend, at best, to imply, at least, that the United States was on the way to winning the war and that the general conveyed this impression to President Johnson and his advisers in Washington by deliberately underestimating the numbers and the capability of the enemy – the North Vietnamese and the Viet Cong.

The very early consequence, the programme maintained, was that Washington and the American people were, quote, 'totally unprepared' for the enemy's formidable Tet offensive when the roof fell in and from then on the road was a little up but mainly downhill all the way until the United States pulled out.

The chief, precise, accusation against General Westmoreland was that he ignored or discounted reports from field officers of increasing enemy strength, had set himself an, quote, 'arbitrary ceiling' of a 300,000 effective enemy fighting force and had done this by removing from the total count about 120,000 so-called self-defence forces as not really belonging in the order of battle. Moreover, he was accused of systematically blocking reports from his own officers that there'd been a notable increase of enemy troops infiltrating into the regular forces in the five months before the Tet offensive. Perhaps the most serious charge of all was that after the success of that enemy offensive, General Westmoreland's command had covered up its blunder by re-rigging or altering the now-historical record of enemy strength.

Well, within three days of the telecast, General Westmoreland publicly declared that the programme was 'a vicious, scurrilous and premeditated attack on my character and personal integrity'. He asked the network for an apology and he didn't get it. Four months later, an editorial in TV Guide, the national television magazine, called the programme 'a smear' and, a little later, the CBS network itself announced that it had found editing mistakes and other violations of its documentary standards, but it stood by the programme.

Two months later, in September 1982, General Westmoreland filed a $120 million libel suit against the network and, two years later, on 9 October, last year, the case following the elephantine course of American law through the labyrinths of depositions, appeals for dismissal and so forth, finally came to trial.

It called scores of witnesses, former White House aides, a Secretary of Defense, the producer of the programme, officers and intelligence staff from General Westmoreland's command. Some spoke up for him, some damagingly said they were there, and to their shame, assisted in the cover-up. The trial took 18 weeks and by last weekend it was dragging to a close before a jury now stunned, but not yet bowed, by what was recorded in over 250,000 pages of testimony.

One key witness remained to be called. Mike Wallace, who was the part writer and narrator of the programme whose merciless questioning of the general on the programme surely dampened any impulse the general may have felt to live and let live. But Mr Wallace, on tiptoe to testify, so to speak, never appeared. Last Monday, it was suddenly announced that the general, after four months in the courtroom and a quarter of a million pages of recorded assertions, denials, avowals, army records, secret memoranda – the United States has no Official Secrets Act – after all this, the general had decided to drop the case.

He didn't put it that way but, at his request, the network's lawyers and his own got together and agreed to go no further.

Why did the general, only days away from the end of the affair, decide not to let it go to the jury? Well, in the American system, the jury, whether it has rendered a verdict or not, is not dismissed and bound to silence. This jury was polled afterwards. A clear majority was ready to plump for CBS, two or three were wobbling, one, perhaps two, were firmly on the general's side. The prospect for the general, at best, was a hung jury and the nightmare of another trial.

A question more to the point is why did the general bring the case? In the result, the general will not get $120 million or, indeed, a penny. He is not, however, to be required to pay the network's legal costs which amount to about $6 million. His own costs, which have been borne by a group of private foundations of conservative-bent, come to about $3 million. So the only people who came smiling out of this debacle were the lawyers, announcing after the precedent of the General Sharon versus Time magazine case that each had won.

A bland, joint statement was put out which, if strictly true and put out in October, would have pre-empted any trial. The general found himself, at this late date, esteeming CBS's, quote, 'distinguished, journalistic tradition'. For its part, CBS was happy to announce its conviction that the general had given long and faithful service to his country and had never been, quote, 'unpatriotic or disloyal in performing his duties as he saw them'.

In subsequent television interviews, those last four words were tossed at the general like a knife in the wound. 'Performing his duties as he saw them' can be said of any unlucky or defeated or even incompetent soldier. It can be said admiringly or Napoleon, of Robert E. Lee, of Irwin Rommel. It has been said disparagingly of very many generals in many wars, of one more than of anyone I can think of – Field Marshal Douglas Haig, the British commander on the Western Front in the First World War.

I've just looked over the index of the last volume of the war memoirs of David Lloyd George, the prime minister and the driving force in the conduct of the First World War during its last two years. There are four pages, eight packed columns of tiny type in reference to Haig, whose relation to Lloyd George was that of General Westmoreland's to President Johnson; except that President Johnson admired and trusted Westmoreland, whereas Haig was Lloyd George's least favourite soldier in the First War or any other.

I quote some of the saltier references to Haig in Lloyd George's index: 'Failure of his strategy at the Somme, misleads Cabinet about Italian front, prefers to gamble with men's lives than to admit error, his fanciful estimates of manpower, neglects defences of the Fifth Army, his conspiracy to destroy the General Reserve, his attempt to shirk blame for March 1918 defeat, misstatements about Italian reinforcements'... and so on and on through a catalogue of charges that could provide fuel for a dozen law suits.

Haig had been dead eight years when Lloyd George's last volume appeared but his heirs didn't sue, and if he'd been alive, neither would he have sued. However lamentably he performed as commander, he knew, as all generals have always known, that in a democracy where the real commander-in-chief is an elected civilian, the conduct of a war is a political event.

'Politics,' Winston Churchill, once said, 'is more dangerous than war. In war, you're only killed once. In politics, many times. You learn to take the rough with the smooth.'

In other words, arguments about the conduct of the war must remain, short of treason, in the public domain. The judge in the Westmoreland case had his own answer to the crucial question. He said, 'Judgements of history are too subtle and too complex to be resolved satisfactorily with the simplicity of a jury's verdict. So I suggest to you that it may be for the best that the verdict will be left to history.' A truly judicial response.

Unfortunately, history renders no verdicts. Only historians do. Meanwhile, history, hearing itself being talked about so noisily, creeps away and bides its time and reappears at intervals with even more of the same contradictory evidence and the only verdict is given by people on the outside who keep to the prejudice they started with before the four-month trial and the quarter of a million words of testimony.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

Letter from America audio recordings of broadcasts ©BBC

Letter from America scripts © Cooke Americas, RLLP. All rights reserved.