When the Camera Blinks

By Evan Thomas

The documentary that television viewers saw on CBS on Jan. 23, 1982, was glossy and seamless. In The Uncounted Enemy: A Vietnam Deception, CBS's Mike Wallace, his voice resonating with authority, charged that there had been a "conspiracy at the highest levels of American military intelligence" to underreport enemy troop strength in Viet Nam in order to deceive President Lyndon Johnson and the American people into believing that the U.S. was winning the war.

For the past three months, a six-man, six-woman jury in a federal courtroom in Manhattan has been listening to witnesses for General William Westmoreland, former commander of U.S. forces in Viet Nam, tell a very different story. By painstakingly unraveling The Uncounted Enemy, Westmoreland's principal attorney, Dan Burt, is trying to convince the jury that the only public deception was by CBS, not by Westmoreland and the high command in Saigon. Last Tuesday, Westmoreland rested his case in his $120 million libel suit against the network. CBS Lawyer David Boies immediately began the arduous process of piecing the documentary back together in an effort to show that it was true, or at the very least that CBS had every reason to believe it was true.

The trial has offered a glimpse into the workings of television. Most of the field reporting was of course done not by Correspondent Wallace--that is not his job--but by a CBS producer, George Crile. His task was difficult. In sorting through events more than a decade old, Crile had to discount the prejudices and bitterness left over from a war riddled with ambiguities. His sources sometimes waffled and contradicted each other. After 80 interviews, Crile had to whittle down dozen of hours of videotape and volumes of information into a tight 70-minute package. By necessity, most of the evidence wound up on the cutting-room floor.

In a courtroom studded with ten television monitors, Burt tried to build his case by contrasting the documentary as it was aired with CBS's outtakes, the portions of filmed interviews that were cut from the program. For example, in the documentary, Wallace asks Westmoreland, "Was President Johnson a difficult man to feed bad news about the war?" Westmoreland's answer strongly implies that the general had a motive for being less than frank with the President: "Well, Mike, you know as well as I do that people in senior positions love good news. Politicians or leaders in countries are inclined to shoot the messenger that brings the bad news. Certainly he wanted bad news like a hole in the head." Yet Burt brought out that CBS had cut Westmoreland's next remarks: "He welcomed good news. But he was given both the good and the bad . . ." Confronting Crile on the witness stand, Burt demanded: "Omitting the portion where General Westmoreland said he (Johnson) was given both the good and the bad distorts what General Westmoreland said, does it not, sir?" Crile's response was that Wallace's question turned on what it was like to give bad news.

Some of the officials interviewed by Crile were much more tentative in the deleted film than they appeared to be on the air. The documentary shows Army Colonel Gains Hawkins bluntly stating that he had helped fudge enemy troop estimates. Yet Burt was able to show the jury unused statements by Hawkins from his nearly hourlong interview with Crile (boiled down to three minutes in the documentary) that showed the Army intelligence colonel hedging and vacillating.

Confronted with such evidence, the jury might feel that Crile had failed to present fully both sides of the story. But that is not the issue. As Judge Pierre Leval has told the jurors, "The fairness of the broadcast is not at issue in a libel suit." Under the "actual malice" standard set by the U.S. Supreme Court, a public figure must show not only that the story was false but that it was published with knowing or reckless disregard for the truth.

In an effort to demonstrate that Crile recklessly ignored the truth, Burt last week called as a witness a freelance film editor who worked on The Uncounted Enemy for CBS. Ira Klein, 33, testified that he told Crile before the broadcast that the producer would "strain the credibility of the film . . . by not permitting General Westmoreland to have time to present his point of view." According to Klein, Crile retorted that he was "deciding what was accurate and what wasn't." Boies sought to discredit Klein as a witness by showing that he had little knowledge about the substance of the documentary and that he harbored a personal animus against Crile, whom Klein had once described as a "social pervert" and "devious and slimy."

Klein was the last of 19 witnesses called by Westmoreland's lawyers. Boies plans to call at least ten for CBS over the next month, including a parade of intelligence officials who will swear that the top brass in Saigon, including Westmoreland, did put an arbitrary ceiling on the size of enemy forces and distorted the method of tabulating various types of opposing fighters. In effect, CBS will reproduce the documentary, this time using live testimony to support the film clips. It will also use outtakes to contend that Burt's presentations were misleading.

Boies began the defense last week by reading portions of depositions from four former military-intelligence officers, supplemented by interview outtakes, that backed up the documentary's assertion that enemy-strength estimates had been artificially reduced. One officer, Lieut. Colonel George Hamscher, testified that he had taken part in the "bloodless wiping out" of whole enemy units by not counting them in intelligence estimates. On Thursday the defense called its star witness: former CIA Analyst Samuel Adams, whom CBS paid $25,000 to act as a consultant. He began giving testimony, which will continue this week, about why he has charged repeatedly and publicly that the military indeed manipulated troop-strength reports. Boies also promises that "at some point" he will put on an uninterrupted showing of The Uncounted Enemy, exactly as it aired nearly three years ago. Surprisingly, the jury still has not seen it.

With reporting by Marcia Gauger/New York