Judge Pierre Leval had a point when he said that the absence of a verdict in the Westmoreland trial may be a gain for those with an eye to history and to the lessons to be learned from America's Vietnam experience. "Judgments of history are too subtle and too complex to be resolved with the simplicity of a jury's verdict," the judge told the jury, adding: "It may be for the best that the verdict will be left to history." Leval spoke of "the creation in this courtroom of an extraordinary, unique and rich record for historians to study."
But at least as interesting as what was laid bare about the conduct of the war and the jiggery-pokery with intelligence data is what is missing: the larger context that for reasons of relevance to the particular issue at hand did not play much of a part in the proceedings. Leave aside whether CBS was right or fair to accuse Westmoreland of taking part in a "conspiracy" to deceive the American public, Congress and his president. A much bigger game was afoot in the year in question, 1967; and Westmoreland was by no means the only, and not even the most important, player.
The biggest player was President Johnson. In his book "Tet!", Washington Post correspondent Don Oberdorfer gave the name "Success Offensive" to the game. It was a massive home-front public-relations effort -- speeches, interviews, TV appearances, briefings -- featuring not only Westmoreland but the U.S. ambassador to Saigon, Ellsworth Bunker, the president's national security adviser, Walt Rostow, and the top pacification man in Saigon, Robert Komer, among others.
Its primary purpose, in a war lacking front lines and unconcerned with permanent territorial gains or losses, was to promote negotiation by the psychological effect on the enemy of "search and destroy." This meant winning battles. But it also meant conveying in the most convincing way 1)that our side was winning the war of "attrition" and 2)that the American public was determined to go on supporting the effort indefinitely.
So, if there was a "conspiracy" at work, it originated in Washington and was aimed at Hanoi's state of mind. The notion that Westmoreland was conspiring in Saigon to con Lyndon Johnson by sending rigged intelligence data via his superiors to the president doesn't fit the script. It also suggests a degree of duplicity -- completely out of Westmoreland's character.
Not that Westmoreland could have been unaware of the damage that would have been done to Johnson's "Success Offensive" by public airing of unfavorable battle reports. He was, in fact, the point man for the "Success Offensive" and a close collaborator. Johnson summoned the general back to the states in April of 1967 to speak to the annual meeting of the Associated Press and to address a joint session of Congress. He was back again in July and stopped off at the White House to report "tremendous progress" to a press conference assembled by the president. But he refused to allow even the president to prompt him into making predictions.
He was back again in November, when, with the president's tacit approval, he made his famous speech at the National Press Club, laying out a four-phase plan by which U.S. forces would become "progressively superfluous" in Vietnam. His speech was called "Progress Report." So was everything else issued for public consumption from top American officials in late 1967. Not surprisingly, there was a resurgence of public support. Its artificial inspiration accounted in large measure for the catastrophic impact of the so-called Tet Offensive by the North Vietnamese in early 1968.
I don't know whether this larger perspective is exactly what Judge Leval had in mind when he told the jurors: "There can be no such thing as the legal power to fix the judgment of history -- such judgments must be left to study, reflection and debate." But his instincts were right. A verdict one way or another on the narrow issue of libel in Westmoreland vs. CBS would have contributed little to the verdict of history on Vietnam.