Westmoreland Claims Victory in Ending Suit : General Says He Recaptured His Good Name; CBS Contends Libel Case Was Hopelessly Lost

Declaring that he had succeeded in recapturing his good name, Gen. William C. Westmoreland on Monday formally dropped his $120-million libel suit against CBS, abruptly ending a four-month trial that had reopened the wounds of the Vietnam War and questioned the fairness of network journalism.

“I consider that I have won,” he told reporters at a crowded press conference, adding with a smile moments later: “I’m going to try to fade away.”

But CBS sources privately contended that Westmoreland, in the wake of damaging testimony by two former subordinates in recent days, had decided that he could not win the case, and chose to withdraw rather than have a jury’s verdict go against him and possibly be held responsible for CBS’ court costs of perhaps several million dollars.

With the general absent from the courtroom earlier Monday morning, his lead attorney officially announced to U.S. District Judge Pierre N. Leval that an agreement had been reached to end the much-publicized suit without its being submitted to the jury. Testimony had been scheduled to resume today, with the case likely to reach the jury by next week.

The suit against the network grew out of a 1982 documentary entitled, “The Uncounted Enemy: A Vietnam Deception.” In the 90-minute broadcast, CBS contended that Westmoreland conspired to deceive his superiors, the American public and President Lyndon B. Johnson by holding down estimates of enemy forces faced by American troops in 1967 below 300,000, when he had evidence that they numbered more than 500,000.

At his press conference Monday, Westmoreland argued once again that his decision to drop the Viet Cong self-defense militia from the enemy battle count was not a political effort to hold down the enemy count, as CBS suggested, but an honest effort to “more honestly identify the elements of the enemy” that were actual combatants and not simply antagonistic villagers.

“I hope and trust that the conclusion of my action against CBS will be a benchmark in putting our Vietnam experience behind us,” he declared, “and allow historians and scholars to assess the facts of that war in accurate and non-sensational terms.”

Shortly after the agreement was announced in open court, CBS and Westmoreland released a joint statement saying that “now both Gen. Westmoreland and CBS believe that their respective positions have been effectively placed before the public for its consideration and that continuing the legal process at this stage would serve no further purpose.

“CBS respects Gen. Westmoreland’s long and faithful service to his country and never intended to assert, and does not believe that Gen. Westmoreland was unpatriotic or disloyal in performing his duties as he saw them.”

Patriotism Cited

Westmoreland and Dan M. Burt, his attorney, cited CBS acknowledgement of Westmoreland’s patriotism and loyalty as their basis for dropping the case.

If the network had been willing to make such a statement in the aftermath of the broadcast, after the suit was initially filed, or even at the beginning of the trial, Westmoreland said, “it would have satisfied me . . . it would have ended the episode.”

But CBS attorney David M. Boies said CBS had in fact made such statements in the past, and he recalled that in his opening remarks to the jury last October he had observed that Westmoreland might have considered it his patriotic duty to mislead the country on the true size of the enemy force in Vietnam.

By the time of the settlement, there was little room to doubt that intelligence estimates put together by officers on the ground in Vietnam were substantially changed by the time the country’s massive intelligence community turned the raw material into estimates of the enemy’s fighting capability in 1967.

No witness put on the stand by CBS was ever able to say he had personally heard Westmoreland order a ceiling put on enemy strength count or to make cuts in intelligence estimates.

Hawkins Testimony

But retired Army Col. Gains B. Hawkins dramatically recalled briefing the general on higher new enemy estimates, and hearing a shaken Westmoreland reply, in effect, “What will I tell the President? What will I tell the Congress? What will be the reaction of the press to these high figures?”

Hawkins recalled hearing the U.S. commander say that the higher figures were “politically unacceptable.”

And Maj. Gen. Joseph A. McChristian, who had served as Westmoreland’s chief of intelligence, testified that Westmoreland had refused to forward higher enemy troop estimates that he had prepared in May, 1967.

Although the case was overwhelmingly concerned with the statistical war that went on between the military and the CIA, the struggle provided revealing glimpses into the military hierarchy during America’s most controversial war, as well as insights into the country’s intelligence establishment.

It forced former Defense Secretary Robert S. McNamara’s first public discussion of the war since he left the Pentagon in 1968. It unmasked intelligence analysts, who, under oath, shamefully confessed that they had been untrue to their craft in helping write what they regarded as a fraudulent official estimate of enemy strength.

Sat Stone-Faced

Westmoreland sat through it all stone-faced, while his wife worked at her needlepoint back in the courtroom.

Sometimes he seemed to even enjoy chatting with the Vietnam veterans and former intelligence officers who came to testify in defense of CBS, walking courthouse hallways with them, reminiscing about Vietnam.

He spoke pleasantly to his chief antagonists, CBS correspondent Mike Wallace, whom he had accused of bushwhacking him in the interview for the program; George Crile, the documentary’s producer; and Sam Adams, the former CIA analyst whose persistent investigating led to the CBS project. All three were co-defendants in the suit.

Coming on the heels of a major libel suit against Time magazine by former Israeli Defense Minister Ariel Sharon, the Westmoreland-CBS confrontation was closely watched because of its potential impact on investigative journalism.

Some First Amendment experts had voiced the opinion that awards of major damages to the two generals could have a “chilling” effect on investigative reporting.

The jury in the Sharon case refused last month to award damages. Although it found that a paragraph in a Time article linking Sharon to the massacre of Palestinian refugees in Beirut was untrue and defamed him, the jury decided there had been no malice on the part of the magazine.

The verdict enabled both sides to claim victory in that case.

Difficulty in Victory Claim

It was far more difficult for Westmoreland to make a case Monday that he had won.

A formal statement by the network after the release of the joint statement made with Westmoreland, reiterated its contention that the program was accurate.

“Nothing has surfaced in the discovery and trial process now concluded that in any way diminishes our conviction that the broadcast was fair and accurate, and that it was a valuable contribution to the ongoing study of the Vietnam era,” the network said.

Van Gordon Sauter, executive vice president of the CBS broadcast group, downplayed the effect of the case on other libel litigation, and he dismissed a suggestion that the Westmoreland and Sharon cases had already caused news organizations to be less aggressive in investigative reporting.

The Westmoreland-CBS fight, he said, “was a very clear case in its isolation.”

It was understood that Westmoreland’s lawyers had earlier raised with CBS attorneys the question of whether CBS would insist upon Westmoreland’s paying the network’s legal fees in the event that the suit was dropped.

Rough estimates are that the suit has already cost about $7 million to $9 million, much of it during the two years before the case went to court when lawyers took scores of sworn depositions and searched through 300,000 pages of documents.

Group Aids General

Westmoreland’s legal fees, said by Burt to exceed $2 million, have been borne by contributions raised by the Capital Legal Foundation, a conservative nonprofit organization based in Washington. In addition to being Westmoreland’s lawyer, Burt is president of the foundation, which he said is now in debt because of the trial.

At Westmoreland’s press conference Monday afternoon, Burt acknowledged that the heavy cost had been a factor in the decision to suddenly end the trial, but he said it was not an important one.

Westmoreland said that it had been “a long, laborious, traumatic experience.”

But he said, “I have no regrets. I believe if I had it all to do over again, I probably would.”

Producer George Crile hails the withdrawal of the libel suit as “a clean victory for CBS.” Part VI, Page 1.