Truth, it has often been said, is the first casualty of war.
And for the past 6 1/2 years, former Lt. Col. Anthony Herbert has been waging a long, tough battle to maintain his own credibility.
Once the most decorated enlisted man in the military, Herbert retired in 1972 after claiming the Army had harassed him for calling attention to war atrocities in Vietnam. The following year he published an autobiography, "Soldier," that summarized his charges; CBS-TV's "60 Minutes" followed with a program suggesting that some of the book was fabrication and super-soldier Herbert was a liar. Herbert countered with a $44.7 million libel suit, which has still not come to trial.
Last April, one day after his 49th birthday, the Supreme Court gave Col. Herbert his first major victory since fighting in Vietnam, which he left on April 4, 1969. The court ruled that Herbert's attorney could ask CBS why it had used certain information that cast doubt on Herbert's veracity rather than other information the network allegedly had that would have supported Herbert's accusations about war crimes.
The Supreme Court ruling -- which affected only discovery proceedings in the Herbert case -- opened newsroom editing processes to courtroom inquiry. It also set off howls of protest from the media. In effect, the court was saying that a reporter's state of mind could be explored in assessing libel cases. Overnight Anthony Herbert became associated with the phrase "state of mind," and was portrayed instantly as an opponent of the First Amendment.
"Hell," says Herbert, sitting in the Mayflower last week, "if anybody believes in freedom of speech it's me, after what I went through in the Army. We didn't even raise the issue of 'state of mind.' We just wanted some answers to questions and all of a sudden the CBS lawyers were screaming about 'state of mind.' CBS were the ones who brought this whole thing up, and they hoodwinked the press into thinking that I was cutting into free speech.
Herbert strikes an odd contrast when addressing such cerebral notions. He still looks leather-skin tough, like his spartan countenance that once illustrated a training manual for the Army's Ranger Corps. His arms are like three limbs; his neck the trunk; the thigs like huge willow roots; easy to imagine hunkering into the DMZ, with a flame-thrower blasting, howling commands for the grunts behind to follow him into combat.
But there's another side to this hulking presence, now a clinical psychologist practicing in Denver, having earned his Ph.D. after his tour in Vietnam.
"Courage, bombs, rifles," he says. "They're just externalized symbols of psychological issues."
He almost seems like a fanatic: one of those guys who wander around with brief cases full of documents, obtained through Freedom of Information Act requests, intent on getting to the bottom of some cause.
Herbert's cause is Herbert. He turned over his patients to another therapist and hit the road "to prod the press," he says, "because CBS is dragging its heels on this case."
"I'm not going to get in a discussion about that," says Carl Eldridge, the New York attorney representing CBS and "60 Minutes" correspondent Mike Wallace.
Ostensibly, Herbert is also touring to promote the paperback reissue of "Soldier" (which Robert Duvall has said taught him everything about the character he plays in "Apocalypse Now"), although he doesn't really want to talk about the book.
"I don't really care how good the book is," he says. "People tell me parts of it are in 'The Deer Hunter' and 'Apocalypse Now.' But I don't care who's used it. Every writer borrows from everybody else. People tell me I should see 'Apocalypse' because the Duvall character is modeled after me, and others tell me the Brando Character, Kurtz, is modeled after me. 'I'm not Brando; Brando's not me. I'm not Kurtz; I'm Herbert. And I don't want to see any bull ... war movies. If I want to see a movie, I go to 'The Sound of Music.' I've seen it 31 times. What matters to me now is proving that my whole life wasn't a lie."
Herbert believes in the military, believes in a good fight that's played by the rules, believes in having the ability to blow to Kingdom Come anybody the Congress happens to declare war on. He grew up in the Pennsylvania coal-mining burg (pop. 1,500) of Herminie, just four miles from Clairton, the central town in "The Deer Hunter."
At 14, Herbert ran away from home and tried to enlist. His mother prevented it. Three years later he was in basic training. By age 22 he was in Korea with a Bronze Star, three Silver Stars and four Purple Hearts.
In 1968, Herbert returned to the battlefield in Vietnam, where he was by then a battalion commander in the 173rd Airborne Brigade. In less than two months he garnered another seven medals. And, before the My Lai reports, he began blowing the whistle on military action that he claimed violated the Geneva Accords.
After 58 days, Herbert was relieved of command. He returned to the U.S. and began talking about cover-ups (at least two ultimately verified by the Pentagon) and military reform, and claimed the Army was harassing him.
Enter CBS. Producer Barry Lando suggested a story on Herbert as the ultimate soldier: a guy with guts and a conscience. The story became a 20-minute lead item for "60 Minutes" -- aired on Feb. 4 1973 -- suggesting that Herbert was in fact lying about alleged atrocities he had seen in Vietnam.
So Herbert sued. He claims that CBS was offering him up as a sacrifice to the Nixon White House as retribution for its steamy expose, "The Selling of the Pentagon." Mike Wallace, who reported the Herbert piece for "60 Minutes," claims the charge is "preposterous." Herbert thinks Wallace and CBS are simply trying to cover their own tracks.
In his book, Herbert cited eight alleged war crimes. The TV program zeroed in on one and attempted prove it false. Herbert claims in the suit that the producers had information that would have backed his charge, but chose to go with other information that seemed to disprove it.
Herbert also says producer Lando cut short an exchange among Wallace, Herbert and (then) Capt. James Grimshaw, one of the officers under Herbert in Vietnam. Wallace and Herbert had been discussing Grimshaw when -- deus ex machina -- Grimshaw appeared from behind a door, where he had been listening to the conversation, flown to New York with his wife by CBS just for this purpose.
What appears on screen implies that Herbert had lied: Herbert claims that, as the cameras kept rolling, he asked Grimshaw a question and Grimshaw answered in a way that seemed to verify his original statement.
And then, says Herbert, Wallace slammed his fist down and said to Grimshaw: "You better remember which side your bread is buttered on! That's not what we paid to fly you here to say?"
"I don't recall that incident," CBS attorney Eldridge said in reply to a reporter's call. "It's been years since I saw that footage, and I'm not even sure I have a transcript of it."
"Please print it," said Mike Wallace, of his reported exchange with Grimshaw.
Asked what he meant by that, Wallace replied:
"You know what it means. Print it."
Reached at his current post in Ft. Indiantown Gap, Pa., now Maj. James M. Grimshaw said:
"It's hard to remember what happened that long [6 1/2 years] ago. I do remember having the feeling that Wallace wasn't so much out to get Tony Herbert as he was out to get The New York Times, which had been running pieces about Herbert the supersoldier. After my first interview with Wallace (which came before the meeting of the three), I remember telling Tony, 'Based on what I saw and heard, in military terms, you are heading into a L-shaped ambush, directly into a fire zone, and they're gonna wipe you out.'"
Herbert also claims that then CBS president Frank Stanton had met with Nixon White House counsel Charles Colson shortly before the "60 Minutes" telecast -- in an attempt to avoid being served with a Contempt of Congress order for refusing to turn over tapes from "The Selling of the Pentagon."
"Nobody was making any deals with anybody at CBS News," Stanton said last week. Stanton left CBS a month after the Herbert broadcast, and now is an independent businessman in New York. "No meeting with Colson took place before the vote on the contempt issue."
Colson, however, recalled the meeting coming before the vote:
"I did meet with Stanton," said Colson, "and we worked out a doctrine of occasional fairness. I didn't want to see John Mitchell and the Justice Department hitting so close on the heels of the Pentagon Papers with another citation that would seem to curb freedom of speech.
"But I knew Stanton was really afraid that his a-- would end up in jail, so I told him that I thought we could take care of the contempt citation if he'd do us a favor every now and then -- just occasional fairness.
"And Stanton said to me, 'You call me any time you have a problem.' As far as I know, this never went as far as involving Herbert." In response, Stanton said, "I never told him he could call me any time, and I can't imagine how he could have saved my a-- . When they were filming Herbert, I was already on my way out the door at CBS, so I know nothing about it."
A New York federal district court will decide the Herbert case, perhaps as early next spring.
"What I learned in the military," says Herbert, "is that might doesn't make right. And every battle involves some waiting."
And so Lt. Col. (Ret.) Anthony Herbert waits.
"The Chinese army couldn't roll over me in Korea," he says. "The Vietnamese army couldn't roll over me. And, goddamn it, (CBS Chairman) William Paley isn't gonna roll over me, either."