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Reckless Disregard’: An Exchange

In response to:

The Press on Trial from the February 26, 1987 issue

To the Editors:

As the attorney for General Westmoreland who was in charge of that part of the case which concerned the history behind the CBS show “The Uncounted Enemy,” I feel compelled to write regarding Ronald Dworkin’s review of Renata Adler’s Reckless Disregard [NYR, February 26]. Whatever one’s ultimate view of the controversy, Mr. Dworkin makes factual errors that ought not to go uncorrected.

Perhaps the most glaring example is Mr. Dworkin’s simple failure to understand Adler’s (or even CBS’s) treatment of the claim that enemy infiltration, at one point, was four to five times higher than anyone in the world knew or has ever known—except for two obscure lieutenants, Bernard Gattozzi and Russell Cooley, in Saigon on their first tour of duty in the Army.

CBS claimed that in each of the five months before the Tet offensive, North Vietnam sent 20,000 to 30,000 men into South Vietnam, and that Westmoreland “suppressed” reports of their presence. Gattozzi and Cooley did testify, at their depositions, as if they knew such things had occurred. One problem with their testimony, however, was that neither man’s duties in Saigon had anything to do with estimates of infiltration—and neither man had any access to such estimates. In fact, contrary to the clear impression conveyed by the piece, neither man actually appeared as a witness in the trial. Cravath, evidently preferring not to risk cross-examination or even the jury’s appraisal of these men, introduced their testimony by deposition only.

The only person, purportedly relied on by CBS, who did make estimates of enemy infiltration was Lieutenant Michael Hankins—who did not appear in the trial either. If Dworkin had read Hankins’s deposition (which I took) he would know that Hankins testified that he had derived these higher numbers from a “formula” that his boss told him to “play around with,” and that Hankins could never verify the figures with which he had “played around.” Moreover, and in direct contradiction to Dworkin’s account, Hankins testified that he was given what he regarded as good faith reasons for the rejection of his “extrapolations.”

As for a minor matter, to which Dworkin seems to attach great importance, General David Palmer’s West Point textbook (long ago withdrawn), one simple point: Palmer testified under oath that all the sources for his book were “unclassified,” hence publicly available; the material, in other words, was not and could not have been “suppressed.”

In arguing that Adler fails to prove that CBS was dishonest in broadcasting the infiltration story, Dworkin either did not take the time to study or simply fails to understand even the most elementary factual issues. If CBS had been right, for instance, the enemy’s forces in South Vietnam would have to have doubled in the space of five months, and yet remain undetected by troops in the field. There is no evidence that these fifteen divisions of armed, uniformed men were ever actually seen by anyone—American or, for that matter, North Vietnamese. How do you hide fifteen divisions, and why were they never thrown into a single battle? The story on its face makes no sense. But whether it makes real sense or not it makes great, or at least sensational television. And that is Adler’s point.

Of the many remaining errors, large and small, which reflect Dworkin’s complete unfamiliarity with the case I will confine myself to one. Dworkin writes that the former military officers who testified for CBS were not shown “to be failed and disgruntled officers and men with personal grudges against Westmoreland.” Precisely the opposite was true, to name but one example, of a witness Dworkin specifically mentions, General Joseph McChristian, Westmoreland’s intelligence chief, who bore a lasting grudge against Westmoreland. McChristian had never gotten a combat command in Vietnam, and his career as a general ended with two stars instead of three or four. McChristian has repeatedly stated that he regards these as failures for which he holds Westmoreland responsible to this day. Adams, in his notes to Crile before the McChristian interview, encouraged Crile to exploit and intensify McChristian’s animosity toward Westmoreland. If Dworkin had read Crile’s prebroadcast interview of McChristian, he would know that Crile, blatantly and beyond question, did just that.

Anthony Murry

St. Thomas, US Virgin Islands

Ronald Dworkin replies:

Of course I know less about Westmoreland v. CBS than Mr. Murry does. Perhaps I did make, as he insists, factual errors in my discussion of it. Every instance he actually cites, however, is a case of his mistake, not mine. The questions he raises are sufficiently important, and his charge about my “complete unfamiliarity” with the case sufficiently harsh, to justify an extended discussion of his letter.

Most of Murry’s letter discusses aspects of a single issue. CBS’s documentary about Westmoreland said that the rate of infiltration of North Vietnamese soldiers into South Vietnam was much higher, in the five months before the Tet Offensive, than Westmoreland’s command officially reported. Renata Adler, in Reckless Disregard, accused CBS of simply inventing that claim to make its broadcast more interesting; she said that no one had “so much as mentioned” the higher infiltration rates until just before work on the CBS documentary began. I cited, in my review, a number of intelligence officers in Vietnam who testified that they had formed the view, before Tet, that the actual infiltration rates were at the level CBS claimed, and that they had told that to CBS. I also mentioned a West Point textbook, published in 1969, which reported the same rates.

Murry says that two of the officers I mentioned, Bernard Gattozzi and Russell Cooley, were “obscure lieutenants…on their first tour of duty in the army,” that “neither man’s duties…had anything to do with estimates of infiltration—and neither man had any access to such estimates.” These observations are irrelevant to the question in point, which is whether they heard the high infiltration rates discussed in Vietnam, and whether they reported them to CBS. But relevant or not, the observations are also highly misleading. Cooley was a major in Vietnam, not a lieutenant. He entered military service in 1959, eight years before his tour in Vietnam, and was chief of the Enemy Strength Team of the Combined Intelligence Center in Vietnam, which does not sound “obscure.” (He later became a lieutenant colonel, and was selected for a special inter-service master’s degree program at the United States Naval War College.) Cooley testified that he had constant access to the infiltration estimates prepared by Lieutenant Michael Hankins, who was an infiltration expert.

Gattozzi testified that he was an enemy “gains and losses analyst,” and that infiltration fell under the category of gains he was responsible for measuring. He also testified that he had constant access to the infiltration reports Hankins prepared; he said, for example, that he “coordinated” information from Hankins with other information from other sources in preparing his gains and losses studies. Though Cooley and Gattozzi relied on Hankins, it is misleading to say that their work had nothing to do with infiltration estimates, and wrong to say that they had no access to such estimates.

I did not say or suggest that Gattozzi and Cooley testified at the trial in person; I only reported what their testimony contained, and “testimony” includes statements made in depositions taken earlier, under oath, and read to the jury as part of the trial record. (Murry, in his letter, also uses “testimony” in that way.) His presumption—that CBS did not call them as actual witnesses in order to avoid cross-examination—is particularly odd, because both depositions included cross-examination (which, in the case of Cooley, was conducted by Murry himself) and Westmoreland’s lawyers were free to (and did) select portions of that cross-examination to be read to the jury. When witnesses live out of the state where a trial takes place, depositions, taken where they do live, are often used as testimony to save expense and inconvenience. They are also often used to save trial time (Westmoreland and CBS were each allowed only 150 hours for all their witnesses) because only sections of the deposition designated by either side are read to the jury. Westmoreland’s lawyers used the same technique: Lieutenant Hankins was Westmoreland’s witness, not CBS’s, and his testimony was in the form of a deposition.

I read Hankins’s testimony, in full, when I was preparing my review. Hankins did describe himself as “playing around with” a methodology, but he clarified that phrase in further testimony Murry does not mention. David Boise, for Cravath, asked him: “Is it fair to say that when you used those terms you were using them in the sense of working with the numbers in the ordinary course of what you would do from a statistical standpoint of examining various alternatives and the use of the words ‘played around’ or ‘playing around’ was just a colloquialism and did not mean to imply either that you were playing games with the numbers or that you were doing anything with less than seriousness?” Hankins replied: “That is correct.” It is odd, with that exchange on the record, that Murry should now make so much of the phrase Hankins used. And Hankins’s testimony as a whole, as well as that of Gattozzi and Cooley, shows how serious Hankins in fact was, and how much confidence he came to have that his figures were roughly right: he said he “screamed bloody murder” when his results were ignored, and that he told “everybody that I felt that our data was misleading because of the constraints on how we could report it.”

According to Murry, Hankins testified that he was given what he regarded as good faith reasons why his figures were ignored, and Murry adds that this directly contradicts what I said. It does not: I said that Cooley, not Hankins, denied that any reasons were given. But Murry’s mistake is much more serious than that. For Hankins did not say that he believed that his superiors acted in good faith in ignoring his figures. In response to Murry’s careful question he said that he had no reason to think that they did not act in good faith, which is a different and much more cautious statement. On cross-examination, Boise asked, referring to Murry’s earlier question about good faith, whether Hankins had “any reason to know one way or the other as to whether the analysts who disagreed with you with respect to infiltration did so in good faith or bad faith.” Hankins replied: “No.” His announced position, then, was not exculpatory, as Murry claims, but wholly agnostic about the motives of those who rejected his figures. The early part of Hankins’s deposition was marked by a guarded and even belligerent neutrality quite consistent with that agnosticism. He said, for example, that he had refused to talk to anyone about the case, until subpoenaed for a deposition, because “I personally did not want to get involved with either side in any way, shape or form.”

Murry’s remarks about the “minor matter” of General Palmer’s 1969 West Point textbook, which reported the same infiltration figures CBS later used, are bewildering. I mentioned that book as further evidence, not that Westmoreland’s command had succeeded in making the true infiltration rates unavailable, or even that they tried to suppress them, but only against Adler’s charges that no one had mentioned the high infiltration figures before CBS, as she said, invented them. General Palmer did not in fact testify, but he did sign an affidavit declaring that the sources for his infiltration figures were unclassified and publicly available. That affidavit damaged Adler’s case further: if the infiltration figures Palmer used were in the public domain, available to everyone, then they were even more plainly not invented by CBS just to make interesting television. (It is odd that Murry does not notice the contradiction between the affidavit and his own claim, three short paragraphs earlier, that the infiltration rates CBS reported were “four or five times higher than anyone in the world knew or has ever known” with the exception of Gattozzi and Cooley.)

Like Adler, Murry thinks that everyone who accepts the CBS claims about infiltration before Tet misunderstands “the most elementary factual issues” about Vietnam. But a good many people, including several who supported Westmoreland on other issues, believed that the true infiltration rates were much larger than the official reports CBS challenged. Ellsworth Bunker, who was ambassador in Vietnam, cabled President Johnson after Tet, on February 29, 1968, that “The enemy has shown a capacity for continued heavy infiltration from the North. Indeed, it seems apparent that this was substantially stepped up in the months immediately preceding the Tet offensive.” The notes of a March 26, 1968, meeting between Johnson and General Earle Wheeler, who was Chairman of the Joint Chiefs of Staff, and General Creighton Abrams, who was Westmoreland’s second-in-command, indicate that Wheeler told Johnson that in the month just before Tet alone the North Vietnamese infiltrated 30,000 to 35,000 combat troops with support, or 50,000 men including “fillers,” i.e., replacements for losses suffered in South Vietnam. (CBS had claimed from 100,000 to 125,000 for the whole five-month period before Tet.) On August 2, 1968, William Bundy, who was Johnson’s assistant secretary of state for Far Eastern affairs, cabled Bunker that “The evidence of enemy force strength at Tet caused us to revise upward our infiltration estimates going back to November at least, and to develop methods and more refined techniques…which lead to our more current and higher estimates of infiltration month by month.”

How can Murry think that an idea apparently so widely accepted was nevertheless so absurd that CBS must have invented it? He says that the 100,000 North Vietnamese troops that had supposedly infiltrated before Tet were never detected in the field or used in a single battle. He does not suggest his evidence for that controversial view. Perhaps he thinks that the number of enemy forces deployed in the Tet Offensive was too small to reflect 100,000 troops recently arrived from the North. Some military officers, indeed, estimated that as few as 90,000 enemy soldiers were used in the offensive. But George Allen, who was deputy assistant to the director of the CIA for Vietnamese affairs from 1966 to 1968, and who represented the CIA in an interagency study group to assess the damage of the offensive, testified that in his view at least 400,000 enemy troops had participated. CBS had relied extensively on Allen, whose credentials were impressive, and no doubt accepted his view of the magnitude of Tet. And, as I said, Bunker, Wheeler, and Bundy all agreed, contrary to the premise of Murry’s argument, that the scale of the enemy force in that offensive meant that infiltration had been substantially higher than official records had indicated.

I should emphasize, once again, the character of my argument that Murry finds so mistaken. I did not assume or argue that the CBS claims about infiltration were true. Perhaps Adler and Murry are right, after all, and in spite of the contrary opinion of so many others, that infiltration in the months before Tet was closer to Westmoreland’s official reports than to what CBS claimed. I was considering Adler’s charge not that the CBS view was wrong, but that it was so absurd that it must have been dishonest, simply invented to make the broadcast exciting. I said that she had made no case for that grave accusation. She offered no argument that CBS had any less substantial a basis for its claims about infiltration than for its other claims, which she concedes were made in good faith. Murry’s letter, for all its condescension, adds nothing to Adler’s defense. In fact some of Murry’s mistakes—including his misreporting of Hankins’s testimony about good faith—are mistakes Adler herself made. (I do not mean that Murry only copied Adler. She praises him, in her book, as “by far the most distinguished historian in the case,” and he may have first suggested many of the arguments she used.)

Murry claims, finally, that General McChristian was shown to have “a lasting grudge against Westmoreland.” Though Murry says that McChristian “repeatedly stated” complaints against Westmoreland, he supplies no evidence of that, and apparently bases his charge entirely on a handwritten memorandum Adams prepared for Crile, describing prospects for interviews, when work on the documentary began. Adams said that McChristian “loathed” Robert Komer, who was Johnson’s representative in Vietnam, and General Davidson, who was McChristian’s successor as intelligence chief there, and then added that McChristian is “Of two minds about Westy, but inclined to think he (McC) was screwed.” Even Adams, that is, fell far short of claiming any “lasting grudge” against Westmoreland, and Westmoreland’s lawyers were apparently unable to find any other or better evidence of such a grudge. They did press McChristian, in cross-examining him, about his dislike for Komer and Davidson, apparently relying on the Adams memorandum. (David Dorsen suggested that he “loathed” them both, and McChristian replied: “No sir, that is not true. I don’t have that type of temperament in my body to loath somebody.” Dorsen then asked why Adams might think he loathed them, and McChristian replied, sensibly, “I can only testify to what I know, Mr. Dorsen, not what somebody else knows.”) But there is nothing in the entire cross-examination about McChristian disliking Westmoreland, or even about Adams saying he did, though showing bias against Westmoreland would have damaged McChristian’s testimony much more than showing bias against other officials.

Murry also mentions Crile’s prebroadcast interview with McChristian. But that interview, so far from suggesting that McChristian bore a grudge, tells against that idea. For McChristian provided, early in the interview, a chronology of his own departure from Vietnam in 1967 that seems inconsistent with Murry’s story and is in no way critical of Westmoreland. Westmoreland, McChristian said, asked him to remain as intelligence chief after his two-year stint had been completed, and when he said he would prefer a division command in Vietnam, Westmoreland said that he deserved such a command and offered to secure one for him. Some days later Westmoreland showed him a cable from Washington reporting that third-year extensions in Vietnam for general officers were disfavored, but that Westmoreland would be offered a division command in the United States, which he was. (A little over a year later McChristian, with Westmoreland’s support, became chief of intelligence for the entire Army.) Crile repeatedly asked McChristian whether he now thought, as others had suggested, that Westmoreland had had him transferred from Vietnam because his intelligence reports were embarrassing. McChristian resisted that conclusion, saying that although he realized he might have been naive, and that this damaging view of his transfer might be accurate, he could not vouch for its truth himself.

In any event, McChristian’s conduct at the time of the trial hardly suggests a lasting grudge against Westmoreland. As I reported in my review, Westmoreland made an apparently damaging telephone call to McChristian at the time of the CBS broadcast, saying that he thought that conversations he had had with McChristian in Vietnam were “private and official between West Pointers.” McChristian chose not to report that telephone call to CBS’s lawyers, presumably out of concern for Westmoreland. (The call was discovered only when Westmoreland’s lawyers subpoenaed McChristian’s notes of his conversations.) Indeed, McChristian testified that he refrained from attributing any direct quotations at all to Westmoreland, until required to do so by questions asked under oath. Murry suggests no reason for doubting McChristian’s sincerity in these actions.

Murry was one of the strongest members of Westmoreland’s legal team. But he altogether fails, in this letter, to justify the serious charges against CBS that he repeats; and that seems further evidence that these charges are indefensible.

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