News & Events
Westmoreland v. CBS 1982–1985
On January 23, 1982, General William Westmoreland sued CBS for defamation related to its airing of a documentary claiming that the former U.S. military commander in Vietnam had deliberately underestimated the strength of North Vietnamese troops to support his optimistic reports on the progress of the war. The network charged that the undercount led to heavy American casualties during the Tet Offensive.
George Croner L’80 served as the principal Litigation Counsel for the National Security Agency in the Westmoreland case. Following his government service, Croner spent years in private practice. Today he is a Senior Fellow at the Foreign Policy Research Institute, where he writes and researches on foreign intelligence and national security interests. Earlier this year, Croner was appointed to the advisory board of the Law School’s Center for Ethics and the Rule of Law.
American military commander Gereral William C. Westmoreland (front) reviews the men of the US Army’s 1st Infantry Division in Vietnam, as a squadron of helicopters flies overhead.
Describe your role in the case.
I managed the discovery process for the NSA, making sure that witnesses adhered to strict trial guidelines on what could be revealed about intelligence gathering. The volume of discovery was almost paralyzing, with thousands of redacted pages from the NSA, the CIA and the Defense Intelligence Agency. I was 31 years old, four years out of law school, and had only been at the agency for a couple months. But I was the only one in our small general counsel office with courtroom experience. The witnesses I briefed included former Defense Secretary Robert McNamara and President Johnson’s National Security Advisor, Walt Rostow.
What exactly was the NSA protecting?
We were concerned, even years after the Vietnam War, that inadvertent disclosure of sources and methods could provide an enormous advantage to adversaries such as Libya, Iran, Iraq and others who could use that information to take countermeasures to thwart our efforts. Signals intelligence is a vulnerable and fragile source of information. NSA’s concern in Westmoreland was not necessarily the revelation of what had been collected, it was what that collection revealed about NSA’s level of success in exploiting the systems used to transmit that information.
What did you learn from the case?
The Westmoreland case exposed me to the multitude of ways in which sources and methods can be compromised. I would never have imagined that those sources and methods were more important than the actual intelligence itself. This appreciation for cryptologic sources and methods, including the delicate tradecraft used to extract information embedded in codes, impacted virtually every other matter in which I was later engaged, including two espionage cases and the Iran–Contra investigation.
What do you see as the significance of the case?
From the moment he filed the suit I think Westmoreland was certainly paddling upstream. He was clearly a public figure. He would have had to show actual malice, that CBS deliberately and subjectively knew it was broadcasting false statements about what he knew and what the intelligence showed at the time, and that never really came out.
I think what it shows you historically, from a legal perspective, is just how difficult it is for a public official to prevail in a libel case, and nothing has changed in the almost 40 years since then.
In retrospect, do you agree with the high defamatory standards set for Westmoreland and other public figures?
No, I don’t. I don’t know that the First Amendment compels the judicial interpretation that now applies in libel actions, just as I don’t believe in shield laws. Here’s the problem I have. If a plaintiff successfully proves falsity, there should be no protections for false statements; yet proving falsity alone isn’t enough in defamation cases.