CBS producer George Crile returned to the witness stand today to explain his thinking behind virtually every segment of a 1982 documentary on Vietnam that is the subject of a $120 million libel action by retired general William C. Westmoreland.
As CBS attorney David Boies played a tape of "The Uncounted Enemy: A Vietnam Deception" for the jury, stopping it occasionally for comment, Crile tried to explain why and when he chose to believe or disbelieve those who appeared in the program.
The central question in the case has been whether Westmoreland withheld from his superiors intelligence showing higher estimates of enemy troop strength in Vietnam in 1967.
At several points today, Crile accused Westmoreland of not being "candid" in an interview with correspondent Mike Wallace, a co-defendant with Crile in this trial.
Nonetheless, Crile said, he included comments by Westmoreland that he believed to be untrue because Westmoreland was "the commander" in Vietnam -- the highest ranking official interviewed who was also involved in the battle between military and Central Intelligence Agency officials over enemy-troop figures.
In the interview, Westmoreland said the fight was "a rather absurd argument and it didn't last very long."
"I felt that I knew that that was incorrect," Crile said, adding that a series of other interviews and documents led him to believe that the argument was a "very long and very bitter battle."
Crile said that at other times he chose to believe Westmoreland, however.
Westmoreland's lawyers have argued, for example, that during the interview the general mistakenly estimated that North Vietnamese troops were infiltrating South Vietnam at a rate of 20,000 a month in the fall of 1967. Westmoreland has said he subsequently sent a letter to Wallace and Crile trying to correct the figure to fewer than 6,000 a month -- the same figure he used on a "Meet the Press" show in 1967.
Crile said today that he and others working on the show chose to believe the figure of 20,000 because Westmoreland repeated it six times, in response to questions.
Boies told the court he recalled Crile to the stand because he wanted to deal with his "state of mind" when he produced the show -- a crucial issue in libel cases involving a public person like Westmoreland.
As a result of a 1964 Supreme Court ruling (Times v. Sullivan), a public figure must prove both that the article or broadcast is false and that the publisher, in this case CBS Inc., knew it was false or had a "reckless disregard" for whether it was true.
It is this second level of proof -- sometimes called proof of malice -- that makes a successful libel action more difficult for public figures than for ordinary citizens. When former Israeli defense minister Ariel Sharon lost his libel suit against Time magazine recently, it was because the jury decided that, although the paragraph at issue was false, Time did not publish it with malice.
Thus, Boies made it clear that he wanted the producer to explain his "state of mind" in putting the show together.
Crile said he chose to believe people like Col. David Morgan, one of Westmoreland's officers in Vietnam, when Morgan acknowledged participating in an effort to cut offical enemy-troop data because he believed that Westmoreland ordered it.
"It is not unusual to encounter whistle blowers, people who are prepared to point a finger at someone else out of anger," Crile said, "but it is rare to encounter so many people, such as Col. Morgan, who are, in effect, pointing the finger at themselves."