Skip to comments.THE UNCOUNTED ENEMY: A VIETNAM DECEPTION (cBS & Gen Wm Westmoreland libel lawsuit)
Posted on 09/19/2004 6:19:29 PM PDT by GailA
The CBS Reports documentary The Uncounted Enemy: A Vietnam Deception, which aired on 23 January 1982, engendered one of the most bitter controversies in television history. The 90-minute program spawned a three-year ordeal for CBS, including disclosures by TV Guide that the report violated CBS News Standards; an internal investigation by Burton (Bud) Benjamin; and an unprecedented $120 million libel suit by retired U.S. Army General William C. Westmoreland.
Westmoreland sued producer George Crile III, correspondent Mike Wallace, and others for alleging that Westmoreland participated in a conspiracy to defraud the American public about progress in the Vietnam War. The suit was dropped, however, before reaching the jury, with CBS merely issuing a statement saying the network never meant to impugn the general's patriotism.
CBS subsequently lost its libel insurance. The controversy was also drawn into the debate over repeal of the financial interest and syndication rules. CBS chairman Tom Wyman twice admonished his news division in 1984 for hindering broadcast deregulation. In part as a result of the controversies, fewer CBS documentaries were produced than ever before.
The lawsuit generated an abundance of literature, as well as soul-searching among broadcast journalists regarding ethics, First Amendment protection, libel law, and the politicization of TV news. Unlike the case for a similar, but lesser, controversy over The Selling of the Pentagon, The Uncounted Enemy failed to uplift TV news, and instead, contributed to the documentary's decline.
The program states that the 1968 Tet offensive stunned Americans because U.S. military leaders in South Vietnam arbitrarily discounted the size of the enemy that was reflected in CIA reports. Former intelligence officers testify that field command reports withheld information from Washington and the press, ostensibly under orders from higher military command, and that a 300,000-troop ceiling was imposed on official reports to reflect favorable progress in the war. This manipulation of information was characterized as a "conspiracy" in print ads and at the top of the broadcast.
The first part of the documentary chronicles the CIA-MACV dispute over intelligence estimates. Part two reports that prior to Tet, infiltration down the Ho Chi Minh Trail exceeded 20,000 North Vietnamese per month. Again, the report alleges, these figures were discounted. The last segment charges that intelligence officers purged government databases to hide the deception.
The most provocative scene features correspondent Mike Wallace interviewing Westmoreland. An extreme close-up captures the general trying to wet his dry mouth as Wallace fires questions. The visual image in conjunction with other program material suggests that Westmoreland engineered a conspiracy and, as viewers can see, he appears guilty. Westmoreland publicly rebuked these claims and demanded forty-five minutes of open airtime to reject The Uncounted Enemy assertions. CBS refused the request.
In the spring of 1982, a CBS News employee disclosed to TV Guide that producer George Crile had violated network standards in making the program. The 24 May story by Sally Bedell and Don Kowet, "Anatomy of a Smear: How CBS News Broke the Rules and 'Got' Gen. Westmoreland," stipulated how the production strayed from accepted practices. Significantly, TV Guide never disputed the premise of the program. The writers attacked the journalistic process, pointing out, for instance, that Crile screened interviews of other participants for one witness and then shot a second interview, that he avoided interviewing witnesses who would counter his thesis, and that answers to various questions were edited into a single response.
CBS News president, Van Gordon Sauter, who was new to his position, appointed veteran documentary producer Burton Benjamin to investigate. His analysis, known as "The Benjamin Report," corroborated TV Guide's claims.
According to a report in The American Lawyer, several conservative organizations, such as the Richard Mellon Scaife Foundation, the Olin Foundation, and the Smith Richardson Foundation, financed Westmoreland's suit in September 1982. One goal of the Smith Richardson Foundation was to kill CBS Reports. Another was to turn back the 1964 New York Times vs. Sullivan rule, which required that public officials prove "actual malice" to win a libel judgment. The Westmoreland case went to trial two years later and was discontinued in February 1985.
One of the significant by-products of the controversy is the "Benjamin Report." Benjamin's effort remains widely respected within the journalistic community for revealing unfair aspects of the program's production. Some observers, however, criticized the report for having a "prosecutorial tone," for failing to come to terms with the producer's purpose, and for measuring fairness and balance by a mathematical scale. In his conclusion, Benjamin acknowledges the enduring value of the documentary: "To get a group of high-ranking military men and former Central Intelligence Agents to say that this is what happened was an achievement of no small dimension." The production flaws, however, overshadowed the program's positive attributes.
The Uncounted Enemy helps explain an aspect of Tet and gives voice to intelligence officers who were silenced during the war. But the program tried unsuccessfully to resolve a complex subject in ninety minutes, and it fails to convey the context of national self-delusion presented in lengthier treatments, such as the thirteen-hour PBS series, Vietnam: A Television History or Neil Sheehan's book A Bright Shining Lie. CIA analyst George Allen, who was interviewed in the documentary, explained in a letter to Burton Benjamin in June 1982 his belief that the intelligence dispute was "a symptom of a larger and more fundamental problem, i.e. the tendency of every American administration from Eisenhower through Nixon toward self-delusion with respect to Indochina." Allen reasserted his support for The Uncounted Enemy as a valid illustration of the larger issue and subsequently used the program as a case study in politicized intelligence.
Although many works disprove the conspiracy charge, General Westmoreland did subsequently acknowledge the potential significance of a public disclosure of intelligence information prior to Tet. Appearing on the NBC Today show in May 1993, Westmoreland explained: "It was the surprise element, I think, that did the damage. And if I had to do it over again, I would have called a press conference and made known to the media the intelligence we had."
I understand what you are saying. What I'm saying is that one of the basic points of defamation law is that you can't defame a dead person. Unlike a lot of other lawsuits, it goes away when the victim dies, and the heirs cannot sue. The only way Killian's family could sue is if they themselves were defamed. Sometimes that happens. For example, if Dan Rather had called Gary Killian a liar, then he might have a lawsuit.
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