The Westmoreland libel suit, withdrawn hours before final judgment was rendered, is over, but lingering questions will not permit it to fade away.
Why did Gen. William C. Westmoreland surrender his $120 million attack on CBS in return for these few glittering generalities: "CBS respects Gen. Westmoreland's long and faithful service to his country and never intended to assert, and does not believe, that he was unpatriotic or disloyal in performing his duties as he saw them"?
This is hardly an apology for a 90- minute documentary, televised coast to coast to an estimated 9.6 million viewers, that charged that Gen. Westmoreland's command conspired to deceive America by underestimating enemy troop strength in Vietnam. At the time, Gen. Westmoreland denounced the program as a "vicious, scurrilous and premeditated attack on my character and personal integrity."
The obvious reason for the eleventh-hour withdrawal is that his lawyers, after hearing several members of his command testify that they had manipulated the troop figures, decided to cut their losses and bail out. An estimated $3 million had already been spent by the Capital Legal Foundation in his behalf, and a jury verdict rejecting the general's charges would have hurt him and his reputation perhaps even more than the CBS documentary did. As the lawyers say, a bad settlement is better than defeat.
But then why did they persist with the suit in the first place, having seen these same witnesses in the documentary saying essentially the same things as they later did in the courtroom?
And now a question to the defendants: If CBS was so sure about the essential fairness of the ambitious program and would like to deter similar litigation impinging on First Amendment rghts, why did it not insist on a jury verdict and that Gen. Westmoreland and the conservative Capital Legal Foundation pay the estimated $5 million legal expenses of CBS? That would have been an expensive lesson, and the cash could have found a home someplace in the CBS treasury.
It would appear that CBS had something less than 100 percent confidence and that the one-paragraph settlement agreement reflected more than capitulation by Gen. Westmoreland. This has not deterred various columnists from cheering the result as a great victory.
Some editorial writers have been more restrained. The opening sentence in both The Post and The New York Times spoke, coincidentally of course, about a case that "never should have been brought" to court. A Washington Times editorial, headed "The Old Soldier Fades," termed the Westmoreland decision "capitulation" and "disappointing." A Wall Street Journal editorial saluted the CBS lawyer as deserving of "every million CBS will pay him for pulling its chestnuts out of the fire" and went on to blame President Lyndon Johnson. USA Today said the disclosures of how CBS and Time magazine functioned in their journalistic hours did not call for huzzahs. "Celebrating is as out of place as waltzing in a graveyard," it said.
Some of the CBS corporate and news personnel toasted the settlement of the lawsuit and the end of more than three long and expensive years of controversy since the airing of the program. There was a restaurant party, but the head of CBS News was reported to have stayed only a few minutes.
The next day, Edward M. Joyce, the news chief, put out a memorandum to his crew, commending Burton Benjamin, the CBS senior producer who conducted an internal investigation of the making of the Westmoreland documentary. "Your findings were both painful to us and encouraging to us -- they pointed to embarrassing transgressions of our own CBS News guidelines." Mr. Benjamin found 11 "principal flaws" in the program.
Joyce told the press he wanted to praise Mr. Benjamin now and also he felt "this is the time for us to feel relief, but not jubilation. And I think it is time for us to reflect, and then go about the business of good journalism."
Amen. There are a lot of people all too ready to believe that the journalistic shortcomings revealed in the CBS and Time magazine trials are routine, rather than rare.