OUTTAKES FOR THE DEFENSE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00552R000707150120-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 22, 2016
• Document Release Date: August 13, 2010
• Sequence Number: 120
• Publication Date: January 1, 1985
• Content Type: OPEN SOURCE

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1''ASHINGTON JOURNALISM REVIEW
FOR ThE DEFENSE
The Unseen Film From
"The Uncounted Enemy
~ 11
By David Zucchino
For nearly an hour one afternoon in
November, 12 jurors in room 318 of the
federal courthouse in Manhattan stared at
/Q the pale, pinched face of George Allen. A
former expert on Vietnam for the CIA,
Allen spoke in the arcane lexicon of bu-
reaucrats and intelligence analysts. Often,
his thoughts tumbled out in half-sen-
tences and convoluted phrases:
There was noway for the jury to de-
termine from Allen precisely what he
meant to say. Allen was not inside Room
318. He was not even in Manhattan. He
was speaking on videotape. The jury was
seeing "outtakes"-film shot for but not
used in a television program.
George Allen's TV performance in
the $120 million Westmoreland-CBS libel
trial involved the sort of courtroom
examination that TV networks and news-
papers have come to dread. The perusal
of TV interview outtakes and of report-
ers' interview notes in libel trials brought
by public officials has become an unpleas-
ant fact of life for the news media. The
industry and its libel lawyers complain bit-
terly that such viewings by libel juries
have a powerful chilling effect on report-
ing about public officials.
If networks and newspapers know in
advance that every word of every. inter-
view may one day be. laid bare before a
jury, members of the press argue, news
organizations will be intimidated in ex-
ercising their First Amendment right to
comment freely on the performance of
public officials. They fear that the viewing
of outtakes and notes subjects extraneous
material and offhand comments to misin-
terpretation. And that, they say, permits
juries to second-guess the professional de-
cisions of reporters and editors.
The subject of the Westmoreland
trial-"The Uncounted Enemy: A Viet-
nam Deception," broadcast by "CBS Re-
ports" in January 1982-has focused me-
dia attention on the outtakes issue as has
no other libel trial in American history.
The courtroom looks like a TV studio.
Outtakes are shown so often by the gen-
eral's lawyers that TV monitors and VCRs
are permanently set up around the room.
CBS attorney David Boies uses a VCR as a
lectern; the trial judge has taken to saying
"cue it up" when outtakes are about to
be shown.
The video clips have raised basic!
questions. of fairness. Do jurors fully un-!
derstand that only a fraction of the mate-
rial gathered for a store is actually used,
especially for a long documentary or in-
vestigative series on a complex subject?
Do they understand that a major part of
journalism involves evaluating what is to
be used and how it is to be condensed
and presented? Can a juror who has
never prepared a news story appreciate
the fact that disregarding certain material
is no proof of malice?
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-ial necessary to determine a reporter's
state of mind" in preparing a story or
broadcast about a public official. To erect
an "impenetrable barrier" to such mate-
rial would obstruct juries in libel cases
involving public officials, Associate Justice
Byron R. White wrote for the majority.
The ruling stemmed from an appeal in
another CBS libel case: Herbert v. Lando,
in which Lieutenant Colonel Anthony
Herbert sued CBS over a "60 Minutes"
broadcast.
Underlying that ruling, of course,
was the landmark 1964 Supreme Court
decision in New York Times v. Sullivan.
The Court required a public official to
prove not only that material published
about him was false, but also that the
news organization knew it was false or
showed "reckless disregard" for whether
it was false. Such disregard was defined
by the court as malice-to be determined
largely by examining state of mind.
Many in the press believe the slate-
of-mind aspect of Sullivan-a decision
considered a landmark First Amendment
victory-intimidates journalists because
of the way the concept has come to be
applied. A journalist who knows that ev-
ery second of every interview could be
dissected in court, they reason, might just
stop doing tough stories.
"It has not only opened up the news-
room, but the journalist's mind to judicial
inquiry," Henry A. Grunwald of Time
magazine said in a November speech at
New York University. Time is being sued
for libel by former Israeli defense minis-
ter Ariel Sharon in the same courthouse
as the CBS trial.
... Perhaps all this would be accept-
able if it were to lead to greater care and
a greater sense of responsibility,"
Grunwald said. "But, in many cases, it
simply leads to caution and a tendency to
shy away from controversy or risk."
George Allen's long interview with
CBS Producer George Crile was part of a
series of outtakes shown by Westmore-
land's lawyers. Crile now finds himself in
the uncomfortable position of guinea pig
in the relatively new art of trial by video
clip.
Crile is a defendant in the suit, along
with CBS correspondent Mike Wallace
and Samuel A. Adams, a former CIA ana-
lyst tinder Allen, who appeared in the
documentary based on 14-year-old
charges by Adams, and who was inter-
viewed on the broadcast but not identi-
fied as a paid consultant.
Crile declined to be interviewed on
the record about the outtakes.
"The Uncounted Enemy: A Vietnam
Deception" accused Westmoreland of de-
ceiving the joint Chiefs of Staff and Presi-
dent Johnson about enemy troop
strength. The documentary alleged "a
conspiracy at the highest levels of Ameri-
can military intelligence" to suppress and
distort intelligence estimates showing a
much greater, er:emy than Westmoreland's
command was reporting.
The outtakes of interviews with Allen
and with other military intelligence ana-
lysts are powerful stuff. Each man is
shown making remarks that seem to con-
tradict the broadcast's premise. West-
moreland's lawyer, Dan Burt, repeatedly
told the jurors to ask themselves why the
comments were not used-and he clearly
did not expect them to answer "journal-
ist's prerogative."
"Watch Mr. Crile cajole Mr. Carver
to get him to say things," Burt said of the
outtakes. "Watch Mr. Crile plant the con-
spiracy thesis for Mr. Allen."
The Allen outtakes proved trouble-
some for CBS when Allen's offhand re-
marks to Crile were shown to the jury.
"What do you want me to say, George?"
he asks Crile when the producer seems
dissatisfied with his answers.
In the outtakes, Crile also seems de-
termined to pry incriminating statements
about Westmoreland from the officers.
He asks the same questions again and
again until he gets an answer that seems
to satisfy him. He apologizes for "hector-
ing" one officer. "Help me," he implores
another when he wants elaboration.
CBS hardly helped its own case by
editing a response by one officer, Colonel
Gains Hawkins, to make it appear in the
documentary that he was referring to
intelligence reports by Westmoreland's
command as "crap." The outtakes reveal
that Hawkins was actually referring to
outdated reports supplied by the South
Vietnamese Army. CBS also spliced tape
to make it appear that another officer's
answers to hypothetical questions were re-
sponses to a specific question about West-
moreland's ethics.
Even with a relatively unambiguous
and friendly-to CBS-witness, such as
General Joseph McChristian, the out-
takes raised questions. CBS quoted
McChristian as saying his intelligence esti-
mates had been "suppressed." But the
outtakes prove he never said that. CBS
also implied that McChristian had been
transferred for reporting high estimates.
But this McChristian quote was not used:
"I just assumed it was normal Army trans-
fer policy."
Even with the outtakes, had the jury
been given the whole picture? Definitely
not, argue TV producers and media libel
lawyers. For one thing, the jury did not
see what the officers might have told Crile
off-camera, which could very likely have
involved much more detailed discussions.
For another, the clips did not permit the
jury immediately to take into consider-
ation other interviews or information
used by CBS to put the officers' state-
ments into context.
"The concept that the outtake is the
full story is just not true," says David
Tabacoff, a producer for ABC's "World
News Tonight," who is covering the trial.
"I've done a lot of interviews where a guy
has sounded great off-camera, but you
put him on and he suddenly forgets ev-
erything."
Tabacoff says that showing the out-
takes was misleading because it focused
the jury's attention on the journalistic
process rather than on Crile's state of
mind. "Even if you do your 20 seconds
[on the air] in absolutely good faith, what
you could have put on is always there to
be used against you," he says. As he
watched the outtakes, Tabacoff says he re-
membered thinking: "I wouldn't want
that done to me."
The statements CBS chose not to in-
clude in the program did not necessarily
diminish the truth of the statements in
the broadcast that did support the show's
thesis. Virtually every intelligence analyst
interviewed by CBS made contradictory
statements that are open to broad inter-
pretation. CBS can logically argue to the
jury that statements selected for the pro-
gram were those supported by informa-
tion from other sources.
Ironically, CBS has sought and been
refused a mistrial on grounds that the
outtakes themselves were edited and
shown out of context by Westmoreland's
lawyers. That, of course, is the very
charge Westmoreland has leveled against
the network. Boies has pressed his point
by showing "-outtakes". of outtakes that
were edited and shown by Burt.
Lost in the debate over outtakes is
the fact that the jurors had not seen the
entire broadcast before many of the out-
takes were shown. In effect, they are bas-
ing part of the libel verdict on what was
not aired-and they have made some of
these crucial judgments before seeing the
entire program alleged to be libelous.
What they have seen, however, tends to
support-at least superficially-one of
Burt's most serious charges against CBS.
He accuses the network of persecuting
Westmoreland and his primary supporter,
Lieutenant General Daniel 0. Graham, in
their interviews. Burt ? charges that CBS
coddled and coached "friendly" wit-
nesses, such as Alen and Hawkins. He
has pointed out that Wallace, one of the
toughest interviewers in the business, was
assigned to interview Westmoreland and
Graham, the alleged conspirators.
Bruce Sanford, First Amendment
counsel for Sigma Delta Chi, believes the
program's "prosecutorial nature" has
complicated CBS' libel defense. "The
(public) bias against big media institutions
is aggravated in this case by advocacy
journalism," he said. "It makes the media
appear presumptuous."
The CBS tactics, Sanford says, now
permit Westmoreland greater latitude in
displaying a sense of "righteous indigna-
tion" to the jury. Conceivably, that. sense
has been reinforced by the Westmoreland
outtakes, in which the general appears to
be hounded by Wallace. At one point in
the outtakes, Westmoreland exploded:
"Well, that is absolutely fallacious ... I'm
absolutely amazed that you would come
out with a statement like that." And later
he shouted at Wallace: "Now let's stop it!"
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Wallace hammered away at the gen-
eral, often cutting him off and asking
questions over the top of Westmoreland's
answers. Westmoreland, who claims CBS
deceived him about the subjects to be dis-
cussed, appeared flustered and defensive
as he groped for words. He told the jury
that. Wallace, with Crile holding up cue
cards containing follow-up questions, had
conducted an "inquisition."
"I realized I was participating in my
own lynching, only the problem was I
didn't know what I was being lynched
about," he testified. "I realized he [Wal-
lace] and Mr. Crile had orchestrated a
scenario to go for the kill. They wanted to
go for my jugular."
The Westmoreland outtakes certainly
could be interpreted that way. The jury
saw Westmoreland darting his eyes and
licking his lips. While that might well be
seen as evasiveness, Westmoreland of-
fered the jurors a novel explanation: His
lips were dry because of the hot TV lights.
\4'ith that single comment, he made the
outtakes work for him by evoking the ju-
ry's sympathy.
The jurors also learned from the out-
taes that Adams, Allen's former protege
at the CIA, was present off-camera during
the filming of Allen's interview. They
watched Allen turn three times to Adams
for guidance, asking him his memory of
one.1967 incident by saying, "What hap-
pened, Sam Crile coaxed Allen to sup-
port Adams' thesis, saying, "George,
come to the defense of your old protege,
Sam Adams."
Allen also made statements, left out
of the program, that contradicted its
premise. He repeatedly said, for instance,
that discrepancies in enemy troop esti-
mates resulted from "bookkeeping" prob-
lems.
On the other hand, CBS did not use'',
an Allen comment that supported a key
CBS allegation: that the CIA's giving in t01
Westmoreland's command in an intelli-
gence dispute over enemy strength was'
"the mistake of the century." Nor did the
program include Allen's stated belief that
he and other top CIA officials "perverted
ourselves" in a way that was "not benefi-
cial to U.S. national interests."
The outtakes of Wallace's interview,
with General Graham gave Burt similar
opportunities to imply to the jury that
CBS had deceitfully withheld information
contradicting its thesis. Graham's 21 sec-
onds on the broadcast, for instance, did
not include his contention that Sam Ad-
ams had an "obsession" with enemy troop !
estimates and was the only analyst in the
U.S. intelligence community to disagree
significantly with Westmoreland's num-
bers. Graham said Adams "has got a
hang-up that verges on a mental prob-
lem." Given'that charge against the net-
work's primary source, the outtakes put
CBS in the difficult position of having to
explain why it did not let an accused
"conspirator" fight back against his chief
accuser.
The Graham outtakes showed the
jury that CBS had left out his denial of
the program's allegation of a "ceiling" on
enemy troop estimates: "Nobody told me
there was some figure I couldn't go, over.
or under."
. Although Crile told Benjamin that he
believed Graham was being "demonstra-
bly untruthful," the outtakes permitted
the jurors to make their own evaluation
of Crile's professional judgment. Only
they can decide whether the inclusion of
Graham's response to an allegation that
he blocked intelligence reports-"I never
blocked any reports"-balances the omis-
sion of his other denial.
So it went in the courtroom, with the
outtakes offering jurors an array of con-
flicting statements as bewildering as the
intelligence numbers game they de-
scribed. Only the jurors themselves know
whether the clips clarified or muddled the
state-of-mind question.
Henry R. Kaufman, general counsel
of the Libel Defense Research Center and
a New York libel lawyer who represents
media clients, believes outtakes have no
place in the courtroom. He calls their le-
gal use "an intrusion on the editorial pro-
cess that allows judges and juries to sec-
ond-guess editorial decisions."
The outtakes leave the misleading im-
pression that anything that is not used is
left out for malicious reasons, Kaufman
says. He does -not believe jury members
are sophisticated enough to understand
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the concept of constitutional malice.
Many First Amendment scholars
agree, contending that libel juries have
disregarded the stringent Sullivan malice
test and have focused instead on whether
published material seemed malicious in
the literal, not the legal, sense. They be-
lieve jurors confuse ill will, animosity or
even aggressiveness with "constitutional"
malice.
Benno C. Schmidt, Jr., dean of Co-
lumbia Law School, says the malice stan-
dard "bears little relation to the ordinary
meaning of the word." He says the lay
people who serve on juries misapply the
standard because they do not understand
it, despite instruction by judges.
As New York Times columnist An-
thony Lewis wrote in a 1983 Columbia
Law Review article: "When a case goes to
a jury, the Sullivan rule means little or
nothing.
"When a judge's charge lasts an hour
or more, and one sentence speaks of the
need to find 'reckless disregard,' it rolls
right past the jurors-it would roll past
any of us."
If those jurors, have spent hours
watching material a network decided not
to include in a program, they might natu-
rally conclude that only a reporter with
malice in mind would "conceal" a huge
chunk of the story.
Pierre N. Leval, the federal judge
presiding over the Westmoreland trial,
has recognized part of the problem by
forbidding lawyers for either side to men-
tion the word malice. He prefers "state of
mind." Leval frequently hauls out a huge
chart to help explain to the jurors the
importance of state of mind to their ver-
dict.
Still, Kaufman wonders how much of
the chart and Leval's rather professorial
instructions will sink in as the jurors
watch the outtakes. "The jury can easily
be convinced that if there's all this smoke
here in this outtake, then there must be
something behind it," he says. "They'll
wonder: What are they trying to hide?"
Also poorly understood by jurors,
Kaufman believes, are the strict time and
space restraints placed on TV and news-
paper reporters. Presumably, CBS will at-
tempt to impress such matters on the jury
when it presents its defense.
Another issue involves the subtle in-
fluence of a reporter's mannerisms and
interview techniques. Perhaps Crile
seemed duplicitous or manipulative to the
jurors watching him on videotape. He was
probing and aggressive with one analyst,
gently coaxing with another. Was that evi-
dence of malice or merely good tech-
nique?
"I'm sure Crile was very uncomfort-
able when the jury was seeing his de-
meanor, his tone of voice, all the little
things you saw in asides that can appear
damaging," Tahacoff says.
Sanford points out that interviewing
public officials requires a sophisticated
mix of stroking and bullying. What a re-
porter considers a good, tough question
may be interpreted by a jury as evidence
of malice-constitutional or otherwise.
"Getting the truth from a reluctant
witness often requires either cajoling and
flattery or a rough cross-examination,"
Judge Leval wrote in a pretrial opinion in
which he rejected CBS' motion to dismiss
the suit. "The use of such tactics is often
necessary to arrive at the truth. By itself,
it does not demonstrate disregard for the
truth."
Leval added: "Nor is the reporter re-
quired to accept denials of wrongdoing as
conclusive, or to prefer them over appar-
ently creditable accusations."
The outtakes of Wallace's long inter-
view with Westmoreland are littered with
the general's denials. Westmoreland said
ten separate times, for instance, that his
command's estimates of enemy strength
were validated after the Ter offensive.
None of it was used.
Westmoreland in the documentary.
Will the jurors consider the omission
to be reckless disregard or will they re-
member that other Westmoreland denials
and explanations were included in the
documentary?
Also left out of the program was a
remark in which the general questioned
Wallace's competence to criticize his con-
duct: "See, I happened to be in Vietnam.
I don't know where in the heck you were,
but I was in Vietnam." That was certainly
no evidence of malice, but it might be
interpreted as CBS' not allowing the gen-
eral to give his full version of the truth.
Burt prepared the jury for the out-
takes by portraying Westmoreland as "an
old man" who was "rattlesnaked" by Wal-
lace's grilling on 14-year-old events.
"Watch the man trapped in that inter-
view," Burt said.
Boies responded by telling the jury:
"Listen to General Westmoreland's an-
swers and compare them to what he said
here today [in testimony]. Ask yourself
which explanation is likely to he most ac-
curate."
Crile's interview with Commander
James Meacham, one of Westmoreland's
intelligence officers, might also have been
perceived by the jury as damaging.
Pressed again and again by Crile,
Meacham finally exploded: "I mean
you're trving to get me to say that we all
talsihed intelligence. I'm
'cause I don't have any
done that." He added
riot gonna say it
sense of having
later: "I don't
know what you're trying to get me to
say." Meacham also disagreed with the
program's thesis: "It's not a question of
honesty or dishonesty, and I think it's
wrong of you to try to use those words."
None of that was used: out of an in-
terview of more than an hour, Meacham
uttered just ten sentences on the broad-
cast. They included statements supporting
another aspect of the show's premise-
that one of Westmoreland's commanders
ordered incriminating computer records
erased. But the omission of statements
by Meacham that were friendly to the the-
sis of the documentary could convince the
jury that CBS showed no reckless disre-
gard. The network did not use some evi-
dence from Meacham that did support
the program's main premise. It included
letters written to Meacham's wife in which
he strongly suggested that Westmore-
land's command was falsifying intelligence
reports.
He wrote: "Someday, it may come
out about how we lied about these fig-
ures." And: "I've never in my life assem-
bled such a pack of truly gargantuan
falsehoods." And: "We spare no current
effort to make these fictions seem true."
What, then, is the jury to believe
about CBS' state of mind based on hours
of raw film that, by virtue of the impre-
cise art of interviewing and the human
tendency to contradict one's own words,
lead each viewer to a different conclu-
sion?
Westmoreland's lawyers hope the
network's editing distortions, its failure to
interview those who disagreed with its
premise and its failure to broadcast
contradictory statements from those it did
interview will help convince the jury- that
Crile and others at CBS exhibited reckless
disregard for the truth.
The network's lawyers hope that the
outtakes are so long and so full of subjec-
tive, contradictory statements that a jury
will either disregard them or conclude
that Crile did the best he could with the
whole mess. They hope, too, that the ju-
rors will ask themselves how they might
have boiled down such a mass of raw
footage.
The outtakes are only a part of the
mountain of evidence and testimony in a
trial that is likely to last four months or
longer. But they make for compelling
viewing, and both sides will bear that in
mind when the outtake witnesses testify in
person.
CBS, as a defendant whose collective
state of mind is at issue, must be l5articu-
larly concerned with videotaped images
left in the minds of jurors. The power of
the network's own medium could be
turned against it.
"For better or worse," says Kaufman.
the New York libel lawyer, "CBS is stuck
with having to defend something the
never put on the air."
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