RISKS IN LITIGATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000504220001-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 22, 2016
• Document Release Date: January 11, 2012
• Sequence Number: 1
• Publication Date: February 19, 1985
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1
19 February, 1985
Risks in Litigation
The Westmoreland and Sharon Cases,
ShowCost on Both Sides MayBe.High
By DAVID MARGOLICK
In some ways, the course of General As the Westmoreland case came to General Westmoreland's lawyer,
William C. Westmoreland's battle its abrupt end, two and a half years Dan Burt of the conservative Capitol
against CBS, which concluded Sunday 1after it was first filed and 18' weeks Legal Foundation, denied-that the fact
when his $120-million libel suit against after it went to trial, it left many ques- that the foundation is now $500,000 in
the network was withdrawn, paralleled lions hangthg? debt played a part in the decision to set-
the tortured path of the war with which Among them: Given its politically tie. -
be is so closely identified. charged nature, should the case have ; Mr. Blasi speculvted that the ded-
At the Federal District gone to court in the first place? Why did 1 sion may have been a belated reaction
News Courthouse in Manhattan the parties opt out now rather than to the prospect that judge Leval - like
Analysis as in Southeast Asia, Gen- await the jury's verdict? And what, if Judge Abraham D. Sofaer, who
eral Westmoreland waged anything, should be done to make libel presided over the Sharon case - may
an expensive, time-con- actions less costly, so that newspapers I have asked the jury to rule separately
sumiiig battle against a powerful ad- and broadcasters with fewer resources on the questions of truthfulness, defa-
versary, whose strength he may have than Time or CBS can defend them- mation and malice.
underestimated. selves? .: General Westmoreland, he said, may
Coming so soon after the very differ- At first blush, the Sharon and West- simply have been unwilling to let a
ent outcome in Ariel Sharon's libel suit moreland cases, which were heard si- panel of his peers ratify CBS's thesis.
against Time magazine, the Westmore- multaneously six floors apart at the "He may have felt he'd really have
land withdrawal from the CBS libel suit Federal courthouse on Foley Square, egg on his face if a jury ruled against
was seen as a gain for the media, al- had much in common. Each pitted a him on falsity," Mr. Blasi said.
though not without a high price. qty man against a media giant: In the end, General Westmoreland
to something that CBS- and its
"CBS has won a great victory, but it agree
each focused on purported misconduct sustained two years of intense public d a far qlf , war. lawyers, Cravath, waive & Moore,
criticism as well as enormous financial imilarities stop, har owever, war, when maintained all along: that, as the joint
The costs," said Floyd Abrams, a specialist statement issued by the parties stated,
on press law. "Large libel suits are one considers the charges the two men "court of public opinion," and not a it the really death grips in which parties attempted d to
one refute. c Mr. statement: : court of law, was the appropriate
clutch each other for months if not that consisted
an ate Israeli specific commission had found forum for the dispute.
years, at enormous pain and expense to
both of them." he played,a a a role in the 1982 massacre of One of the ironies of current libel law
"Libel emntiffs will be reminded of Palestinian civilians in Lebanon. is that while it is extremely difficult
something they may have forgotten: This he managed to do. And although under the Sullivan rule for a public fig-
that someone who brings a libel suit he ultimately failed to prove that Time 7.1, to win a libel action, it is relatively,
had lied or acted recklessly - a show- -y to get a case to the jury. This, both
may suffer a shattering loss of repute- thg required under the United States . lasi and Mr. Abrams said, was a
tion arising out of the litigation itself," Supreme Court's landmark libel ruling ula for inefficiency. - one that
said Mr. Abram. "We haven't heard in New. York Times' v. Sullivan - a coube'vorrected were the courts
so much about. that recently." public -unconcerned with legal niceties ; freer to dismiss libel cases prior to
Professor Vincent Blasi, a specialist deemed him the victor in the case. Gen- trial.
in constitutional law at Columbia Law eral Westmoreland, however, was Five years ago, however, in the fa-
School, noted another consideration. faced with the far, moss difficult task of mous "Footnote 9" of Hutchinson V.
"This case resurrects the most impor- refuting an entire -historical' thesis: Proxmire, Chief Justice Warren
tant deterrent to libel actions:.the fear that he conspired to mislead American Burger wrote that given the complex
that the defendant will make his case leaders on enemy troop strength in question of state of mind involved in
more effectively, more hurtfully, more Vietnam. It was an area where evi- such libel actions, the cases were best
credibly at trial than in print or on the dence was contradictory, where fact tried.
'Recently," he continued, "there's and opinion were intermingled. A Stanford` Law School professor,
been a kind of promiscuity is bringing In the end, he not only failed to con- Marc Franklin, suggested that news
b
b suits, based on a feeling clude his case, but publicized even organizations could fend off libel as
evidence was fee that bringing
if more widely the accusations of which tions altogether by granting aggrieved
if the the verdict were eventually yor g o r if he had complained. persons a chance to reply - albeit
turned, the lawsuit had a certain per- There was genuine puzzlement yes- earlier. and less begrudingly,,he said,
turvalue. This case had ought be tpu terday over the timing of General' than CBS did with General Westmore-
li?neto Westmoreland's decision, particularly land.
bly yts so, forbering This
the that regard.-experience was not since the recent, damaging testimony "Not everyone who comes in off the
without its costs. The network paid mil- against him - by General Joseph A. street should be given equal time, but
McChristian and Col. Gains Hawkins- the proper treatment in cases where
lions of dollars to vindicate itself, a pro- ` could not have been much of a surprise. truth and falsity are murky and there is
less in which its news-gathering proce- Both had made similar statements on a morass of contradictory testimony is
dures and the news-gatherers them- the original CBS broadcast. to let the plaintiff state his percep-
selves were bared and scrutinized as tions," he said. "This was a case for
never before. more free speech, not for a lawsuit."
Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1
 Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1
NEW YORK TIMES
19 February, 1985
Vietnam to Courtroom.
Gen. William C. Westmoreland, who was commander of United States
forces In Vietnam from 1964 to 1968, filed a $120 million libel suit in
1982 against CBS over a documentary that stated that his command con-
spired to underestimate reports of enemy troop strength before the Tot
offensive of January 1968. Here are some of the events that led to the
lawsuit, which General Westmoreland formally ended on Sunday night.
1964
June 20-General Westmoreland
is named commander of United
States forces In Vietnam, which num-
ber fewer than 18,000 advisers and
support personnel.
-1965
July 13 - Mal. Gen. Joseph A.
McChristlan becomes chief of mill-
tary, intelligence on General West-
moreland's staff.
1966-
December- Military and Central
Intelligence Agency officers in Viet-
nam begin a review of enemy
strength estimates.
'1967
April-General Westmoreland
visits Washington, gives President
June and July -Colonel Hawkins
orders subordinates to cut estimates
of enemy strength. He will later tes-
tify that this was done to conform to a
calling imposed by General West-
moreland.
August- Military and C.I.A. ana-
lysts meet in Langley, Va., and dis-
agree on enemy strength. General
July 3 - General Westmoreland be-
comes Army Chief of Staff and Is re-
placed as commander In Vietnam by
Gen. Creighton Abrams.
1973
Jan. 11- Mr. Adams demands an
Investigation by the C.I.A: on the
handling of the enemy strength fig-
ures, then resigns from the agency.
Westmoreland's staff argues for April - Mr. Adams testifies at the
Atotals under 300,000; C.I.A. officials! Pentagon Papers Mal of Daniel Ella-
including Samuel A. Adams, favor berg that the military deliberately cut
more than 500,000. enemy strength figures. He later
Sept. 12 -Negotiations between asks Representative Paul N. MoCloo.
military and C.I.A. analysts lead to
acceptance of the military com-
mand's lower figures.
keep a file of Weitmoreland-61A.
cables and other documents.
Nov. 13 -General Westmoreland ' April 17- Representative McCloe..
sends President Johnson and the key charges that the military "dellb-
Joint Chiefs of Staff figures showing . erately concealed" The size and na.
enemy strength at 223,000 to ture of the enemy before the Tot of-
248,000 troops. fensive.
Nov. 21-Walt W. Rostow, special April 30-Saigon falls tothe Corn-
assistant to President Johnson, munists.
warns the President Ina memo that May- Harper's magazine pub-
the press might "latch onto the previ- lishes article by Mr. Adams charging
cue underestimate and revive cred- that General Westmoreland's oom-
lbllity gap talk." mend "fabricated" enemy strength
Nov. 22-General Westmoreland figures. The artk i.Is edited by .
Johnson an optimistic assessment of
the war.
May 19-General McChrlstlan pre-
pares a cable to be sent to Washing-
ton on the results of a five-month in-
telligence study that puts enemy
strength atmore than 500,000
troops. General Westmoreland or-
ders General McChristlan not to
send the cable.
tells reporters that Communist
strength has declined from 285,000
In 1988 to 242,000 in 1967.
1968
George Crfle 3d, who will Join CBS as
a producer In 1978.
September-December- A House
committee investigates Mr. Adams's
1976
January -The House committee '
reports that the 1987 estimates
dropped numbers "In what appears
to have been an arbitrary attempt to
maintain some calling" on estimates
of enemy strength.
1980
senior intelligence officer, meets with Jan. 30- Communist forces launch
General Westmoreland and latold, , the Tet offensive, striking Saigon and
according to the colonel's later testl- 39 other cities and towns In an attack
mony, that the higher figures for that creates turmoil and oozes to be
enemy strength are "politically unao-'. regarded as a turning point o)'the
ceptable." ? war;
June 1-General McChristlan Is
transferred from Vietnam and re-
placed by Lieut. Gen. Phillip B.
Davidson.
Jan. 31 - Mr. Adams, the C.I.A.
analyst, tells his superiors that the
compromise figures were "a monu-
ment of deceit." He accuses the gen-
eral'sstaff of "outright falsehoods"
that "basically misinformed policy
makers of the strength of the
enemy."
Nov. 24- Mr. Crtle, now a CBS pro-
ducer, proposes a documentary on
the enemy troop strength issue. It Is
accepted and Mr. Adams, now writ-
Ing a book on the subject, is later
hired as a CBS consultant for the
project. .
Continued
Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1
 Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1
1981.
CBS creates a 90-minute, $250,000
documentary. It interviews more than
8Q people,13 of them on camera, In-
cluding General Westmoreland and
Mr. Adams.
1982
Jan. 23- "The Uncounted Enemy:
A Vietnam Deception" Is shown on
"CBS Reports" to a national audi-
ence estimated at 9.8 million.
Jan. 38- General Westmoreland
denounces the program as a ''vi-
cious, scurrilous and premediated
attack on my character and personal
integrity." He demands, but dose not
receive, an apology from CBS.
May 29 - An artlciS In TV Guide,
"Anatomy of a Smear," criticizes the
CBS procedures used In making the
documentary.
Sept. 13 - General Westmoreland
flies a $120 million libel suit, charg-
Ing that CBS defamed him by falsely
accusing him of lying to the Presi-
dent and the Joint Chiefs of Staff.
1984
Sept. 24-Judge Pierre N. Leval
denies a CBS motion to dismiss the
case, saying there are sufficient 11
Oct. 9 -The trial begins In Federal '
Court In Manhattan.
? November- General Westmore-
land testifies for nine days, arguing
his case and denying that he had
acted improperly.
1985
Feb. 12 - Colonel Hawkins testifies
that General Westmoreland Imposed
a "dishonest" ceiling on enemy
troop figures in 1987 because higher
that the documentary suffered from numbers were "politically unaoospt-
"Imbalance" and that there were able." .
editing mistakes and other vlolatkms Feb. 1 fi - Lawyers announce a set
of the network's standards, but It dement In which General Westmors-
stands by the program. land withdraws the suit, CBS pays no .
damages and stands by its docu-
mentary, and each side pays its own
legal expenses.
Declassified and Approved For Release 2012/01/11: CIA-RDP90-00965R000504220001-1