The MacNeil/Lehrer NewsHour

Intro

ROBERT MacNEIL: Good evening. Here are today's headlines. President Reagan declared himself extremely well satisfied with the Shultz-Gromyko talks in Geneva. Mr. Reagan will hold a televised news conference this evening. Senate Republicans debated deeper budget cuts than the White House offers to reduce the federal deficit. President Reagan has reportedly chosen Energy Secretary Donald Hodel to head the Interior Department. Jim?

JIM LEHRER: The NewsHour is in three major sections tonight. Right after the news of the day there is a focus segment on the Westmoreland v. CBS libel trial featuring the two main lawyers in the case, then a newsmaker interview with Senate Majority Leader Robert Dole on today's budget developments and other things, and finally Judy Woodruff profiles the dynamic duo of tax reform, Jack Kemp the Republican and Bill Bradley the Democrat. News Summary

MacNEIL: Secretary of State George Shultz returned to Washington today to report to President Reagan on his deal with Soviet Foreign Minister Gromyko, setting up fresh talks on nuclear arms. Arriving at Andrews Air Force Base, Shultz gave reporters a positive sign but had nothing to say. He went straight to the White House for debriefings by President Reagan and Vice President George Bush. The President told reporters after the briefing that he was extremely well satisfied with the compromise Shultz hammered out in more than 14 hours of talks with Gromyko in Geneva.

Like Secretary Shultz last night, Mr. Gromyko today stressed the immensity of the task that lies ahead. Speaking at the airport before leaving Geneva today, the Soviet foreign minister said a step had been made in establishing a dialogue between the superpowers, but it was but a step.

ANDREI GROMYKO, Soviet Foreign Minister: This is but a step compared to the immense tasks which are to be addressed in the course of the negotiations on space and nuclear arms, [unintelligible] to the agreed solutions. The Soviet Union is prepared to go its part of the road. I should like to express the hope that the United States will do the same.

MacNEIL: Members of the U.S. delegation fanned out from Geneva to brief Western allies, NATO, East European countries and others. The immediate reaction in Western Europe was relief that the superpowers were communicating again. La Stampa of Italy said, "The nightmare of non-communications is ending." Moscow's Warsaw Pact allies also appeared to be pleased. CBS News reported that Max Kampelman, Washington lawyer and experienced arms negotiator, would head the U.S. team at the new talks. Kampelman's office said he hadn't heard of it.

LEHRER: Another in-house cabinet switch appears in the works. The Associated Press reported today that Energy Secretary Donald Hodel will move over to become Secretary of the Interior, replacing the resigned William Clark. Hodel was undersecretary of the interior under James Watt. The AP said White House personnel director John Harrington will become energy secretary but, with the renewed administration hopes the department can be eliminated. Congress rejected earlier attempts to do so. The Hodel-Harrington move is expected to be announced within the next few days. Yesterday President Reagan announced the big swap, the switch in jobs by White House Chief of Staff James Baker and Treasury Secretary Donald Regan.

On the budget today, in an interview with the Dallas Morning News, Mr. Reagan said he welcomed the efforts of Senate unemployments to write a new budget even before receiving his. That new budget-writing effort was begun this morning in a meeting of the Republican leadership. Many options are under discussion.

Sen. BARRY GOLDWATER, (R) Arizona: I don't want to see this country go bankrupt, and if it took a tax increase to keep it solvent I'd be for it. Now, we may be headed that way. I don't think we can say at this time whether we're in that kind of trouble or not. It depends on the work we are willing to do in cutting the deficit. And I just read this last weekend John Kennedy's Profile in Courage. I wish everybody in the Congress would read it because it spells out guts, and that's something that's not floating around this place.

Sen. PETE DOMENICI, (R) New Mexico: I would respond by saying there is going to be guts required in a lot of areas. There's going to be how much guts do we have in terms of Cap Weinberger in the Defense Department. Now, I don't have the answer, but clearly we have to get some money out of Defense and we have to get money out of a lot of other programs. I think if you want a real package that will get you where you have to go, that before you freeze the poor people's programs -- SSI, AFDC, food stamps -- that you ought to look at a freeze in one year cost-of-living increase for Social Security. And I think that's not only courageous but it's good policy.

LEHRER: The man who called today's meeting, Senate Majority Leader Robert Dole, will be with us later in the program for a newsmaker interview.

The unemployment rate for December was out today. It was 7.2 , up from 7.1 in November, although 340,000 new jobs were created in the economy during December. The total number of unemployed people was 8.2 million. The unemployment figures, the budget and the Geneva talks are among the topics likely to be raised at tonight's televised news conference by President Reagan, the first formal one he's had in six months.

MacNEIL: New Medicare rules were approved today that are expected to attract large numbers of elderly people into pre-paid health plans known as health maintenance organizations. In the so-called HMOs the clients play a fixed fee in advance for medical treatment in the following year. Today the Department of Health and Human Services said the Medicare system can now pay the premiums in amounts up to 95 of the average yearly cost per person of the Medicare program in each of several regions. The new rule is expected to bring at least 200,000 people into HMOs this year, with more to come in following years.

But the Supreme Court had a disappointment today for handicapped people who receive Medicaid, which pays medical bills for the poor from federal and state funds. Handicapped patients are more likely than others to require hospital treatment for longer periods. Still, the court ruled unanimously that a state may reduce the maximum number of days permitted for all patients alike without violating the rights of the handicapped to equal access to hospital treatment.

LEHRER: Also from the health beat, the government urged the aspirin industry today to warn its customers of a possible link between aspirin and the children's disease called Reye's syndrome, which is sometimes fatal. Margaret Heckler, Secretary of Health and Human Services, urged the manufacturers of aspirin to do it voluntarily. A medical study indicates that children who take aspirin for flu or chicken pox run a 25-times higher risk of contracting the disease than the risk run by children who do not take aspirin for flu or chicken pox. Mrs. Heckler also asked the industry to include a warning of the risk on its labels. Dueling Over Libel

MacNEIL: Yesterday was the midway point in the historic libel trial between CBS and General William Westmoreland. Yesterday, after 13 weeks in federal court in Manhattan, Westmoreland's lawyers rested their case, and CBS lawyers began their defense. Tonight we devote our lead focus section to the case with the principal lawyers from both sides. General Westmoreland claims that a 1982 CBS documentary, "The Uncounted Enemy: A Vietnam Deception," falsely charged him with suppressing higher enemy troop counts in reports to his superiors in Washington, including President Lyndon Johnson. The general is suing the network for $120 million. Before we talk to the two sides, we have a summary of the case made against CBS over the past three months. Our correspondent is June Massell.

Gen. WILLIAM WESTMORELAND [January 26, 1982]: I have asked for nothing in the past, but I do ask for something today, fairness. I do not expect it from CBS, but I know I shall get it, fairness, from the American people.

JUNE MASSELL [voice-over]: General William Westmoreland three years ago, after the CBS documentary aired. But today fairness is not the issue. In fact, the test for libel has little to do with fairness. The issue before the jury examining CBS's documentary, "The Uncounted Enemy: A Vietnam Deception," is not whether the program was fair or unfair, not even simply true or false. The issue before the jury is far more complicated. [on camera] In order to win, General Westmoreland must prove two things. First, that the program was false and, second, that CBS knew it was false. In other words, if the program was false, but CBS thought it was true, then CBS is not guilty of libel.

MIKE WALLACE, "60 Minutes": The fact is that we Americans were misinformed about the nature and the size of the enemy we were facing, and tonight we're going to present evidence of what we have come to believe is a conscious effort, indeed, a conspiracy at the highest levels of American military intelligence to suppress and alter critical intelligence on the enemy in the year leading up to the Tet offensive.

MASSELL [voice-over]: The broadcast says the U.S. military command in Vietnam, which was headed by General William Westmoreland, deliberately underreported enemy strength figures to Washington in order to appear to be winning the war, a charge Westmoreland has spent three months in court attempting to refute. If a jury agrees that the program is false, how does it then decide CBS knew it was false? The judge says they must look into the producer's state of mind at the time he prepared the documentary and then decide if the network willfully or purposefully lied.

[on camera] To make the case that CBS's state of mind led it to recklessly disregard the truth, Westmoreland has relied heavily on outtakes in the trial, pieces of filmed interviews which were not shown in the documentary. As a result, CBS has been put in the ironic position of having to defend what it did not air as well as what it did. In fact, this case has focused attention on outtakes as no other libel case in American history has.

[voice-over] The courtroom is equipped with 10 television monitors, and the judge uses television jargon when he asks for tape to be cued up. To lay the groundwork that CBS lied, Westmoreland's attorney, Dan Burt, used outtakes to try to prove that CBS was biased against his client. One of Burt's contentions is that CBS coddled friendly witnesses and hounded unfriendly ones, such as Westmoreland. Here's an unused excerpt of Mike Wallace's interview with General Westmoreland that Burt showed in court.

Gen. WESTMORELAND: This is a non-issue, Mike.

Mr. WALLACE: Sure, it's the issue.

Gen. WESTMORELAND: I made the decision, it was my responsibility, I don't regret making it. I stand by it, and the facts prove that I was right. Now, let's stop it.

MASSELL [voice-over]: On the stand Westmoreland testified that he had been "rattlesnaked" and that he had "participated in his own lynching." "They wanted to go for my jugular," he told the jury. Burt contrasted Westmoreland's treatment by CBS with that of George Allen, the CIA's number-two man in Vietnam, who helped build CBS's thesis in the documentary. Burt said Allen had been coached, in fact, interviewed twice by CBS, and he reminded the jury that Sam Adams was present during the interview, a paid consultant to CBS and a former CIA analyst and old protege of George Allens.

GEORGE CRILE, producer [voice-over]: George, would you please help your old protege, Sam Adams, here in some way? He has one vision, which as you know has always been terribly focused and very clear and not complicated.

MASSELL [voice-over]: In the outtakes Allen turned several times to Sam Adams for advice.

GEORGE ALLEN, CIA official in Vietnam: What happened, Sam?

DAVID ZUCCHINO, Philadelphia Inquirer: I think the jury was very impressed by that, especially having seen the outtakes of Graham and Westmoreland where they didn't have that kind of help.

MASSELL [voice-over]: David Zucchino is a reporter for the Philadelphia Inquirer. He has been covering the trial from the beginning.

[interviewing] Is there an impression that CBS coddled friendly witnesses and hammered unfriendly ones?

Mr. ZUCCHINO: Yes, I think that came across very clearly, especially in the outtakes, but I'm not at all convinced that that has any direct bearing on proof of reckless disregard for the truth, which is what --

MASSELL: Because?

Mr. ZUCCHINO: Westmoreland has to prove -- it may prove imbalance or it may prove a desire by CBS to hammer people they thought were hostile to them, but I do not think Burt has laid a case that this was reckless disregard for the truth.

MASSELL [voice-over]: Because the editing process could be crucial in determining CBS's state of mind, it has been examined throughout the three months of trial. In all, Burt showed substantial portions of nine interviews, including this one that Mike Wallace did with General Westmoreland. First, a portion of what ran in the documentary.

Mr. WALLACE: Was President Johnson a difficult man to feed bad news about the war?

Gen. WESTMORELAND: Well, Mike, you know as well as I do that people in senior positions love good news. Politicians or leaders in countries are inclined to shoot the messenger that brings the bad news. Certainly he wanted bad news like a hole in the head.

MASSELL [voice-over]: After playing that, Burt turned to the jury and said, "As you just saw, General Westmoreland seemed to agree with Mike Wallace, and so we, the viewers, beleived that indeed he gave the President what he wanted to hear, mostly good news. But that isn't the whole of what General Westmoreland told Mr. Wallace." Next, Burt played the outtake, a continuation of the answer that CBS had cut, part of which came after the film ran out.

Gen. WESTMORELAND: -- often good news. But he, he was given both the good and the bad. But he was inclined to accentuate the positive.

MASSELL [voice-over]: Burt gave the jury another example of how he believed CBS twisted the truth, an excerpt from an interview done with Colonel Gains Hawkins, the military's leading expert on the Vietcong. Once again, first what appeared in the documentary.

Col. GAINS HAWKINS, Vietcong expert: There was never any reluctance on my part to tell Sam or anybody else who had a need to know that these figures were crap, they were history. They weren't worth anything.

MASSELL [voice-over]: In the documentary it seemed as though Hawkins was referring to Westmoreland's enemy figures as crap. The outtake showed that Hawkins was referring to old South Vietnamese estimates.

Col. HAWKINS: Now, prior to this, when we had the old figures that we inherited from the South Vietnamese forces, there was never any reluctance on my part to tell Sam or anybody else who had a need to know that these figures were crap.

MASSELL [voice-over]: Burt capitalized on that by telling the jury they could see how Crile had dropped the first 18 words in order to fabricate the meaning of Hawkins, answer. In addition to showing outtakes, Burt has brought in 19 witnesses, many of whom did not appear in the documentary. Some, like Walt Rostow and Robert MacNamara, had been advisers to President Johnson during the Vietnam era. They supported Westmoreland's thesis that the books had not been cooked. The last witness, and perhaps the most interesting, was Ira Klein, the principal film editor for the CBS program. Klein told the jury he had complained about the fairness and accuracy of the documentary as he was editing it. Klein also said Sam Adams, CBS's key consultant and former CIA analyst, told Klein, "We have to come clean. The premise of the show is inaccurate." CBS attorney David Boies tried to undermine Klein's testimony by pointing out that Klein had not read the research used for the documentary, not attended any of the interviews, and never written a story himself. Because of all the controversy over how the show was edited, we asked Floyd Abrams, an expert on libel law, what legal relevance editing decisions might have.

FLOYD ABRAMS, libel law expert: I think that the judge has been very clear with the jury so far and is likely to continue to be very clear with the jury. But they have to be very careful not to pass editing judgments on CBS. The jury, in short, is not a supereditor. The jury does not exist to say, "You know, we just don't think this program was fair." The question is not, "Would I, as a juror, have edited the program the way CBS did?" The question is, "Did CBS believe it was editing in a proper way?"

MASSELL: Ultimately the jury has a difficult task. It must decide whether the interviews that were left out of the documentary and the editing judgments made by CBS amounted to a reckless disregard for the truth. The jury must walk a fine line between what may seem unfair and what's false.

Mr. ABRAMS: All that isn't easy, and one of the problems we've had in the libel field in the past is that jurors tend to be intuitive. Jurors tend to do what they think the right thing is, and so, if there's a story which is broadcast or printed which a jury thinks isn't true, the tendency of the jury is to say, "Well, there's something wrong there. The press ought to pay."

MASSELL [voice-over]: The real question is, will the jury obey the judge's instructions? Will they understand that fairness doesn't count? What we've shown you are highlights from Westmoreland's case. CBS began its case yesterday. Their first witness, Sam Adams, takes the stand tomorrow. Sometime after that Mike Wallace will testify. The trial is expected to last another six weeks.

MacNEIL: And when CBS nishes presenting its case we will summarize that one. As I said, we have with us the lead lawyers for both sides in this trial. For General Westmoreland, Dan Burt and, for CBS, David Boies.

Mr. Boies, let's start with you, since we've been hearing the other side for the last 10 minutes or so. Do you fear that the jury may do what Floyd Abrams just said they sometimes do in these cases -- see something wrong and decide the press ought to pay?

DAVID BOIES: It's always difficult, particularly when you're as close to a case as I am, to try to predict what a jury will do, and I really don't think that's an appropriate thing for me to do. I think this jury has been particularly attentive, however. I think they have been particularly attentive not only to the evidence but to the judge's charge. And I would think, I certainly would hope and, given the kind of attention the jury has given to the case, I think they will do the right thing. I think they will listen to the evidence, and listen to the instruction and apply those instructions.

MacNEIL: Is fairness in your mind in fact irrelevant in this case?

Mr. BOIES: Well, I think that legally fairness is irrelevant to this case. I think that one of the things that we will do in the case, in part because it's been brought up by the plaintiff, is we will litigate the fairness. And I think CBS is quite prepared to litigate the fairness.

MacNEIL: Explain what that means, "to litigate the fairness."

Mr. BOIES: Well, for example. Take the editing thing. One of the things that's very difficult about any television production is deciding what you edit in, what you edit out. For example, in the little 10-minute section that we just saw, you took a portion of the Westmoreland interview, and there are three portions of the Westmoreland interview that follow one right after the other. One, Westmoreland says it's tough to give bad news; second, he says, "We gave both good news and bad news"; third, he says, "We emphasized the good news. We -- " including myself, Westmoreland -- "accentuated the positive." Now, if you take just one you may get one impression; if you take just two you may get one impression, as was just done. If you take all three of them "I think" you get the impression that taking either all three of them together or just the first one is a fair impression.

MacNEIL: is it your view that the documentary was edited fairly?

Mr. BOIES: Oh, absolutely. Absolutely. I don't think that when you take the whole thing in context there's any question that the documentary was edited fairly. Take another example of editing, the other example that was shown in the introduction, where Hawkins is shown. Again, there are three parts to that answer. Hawkins says, "When we inherited the figures there was never any -- " he goes on to say, "There was never any doubt in my mind -- and I told Sam -- that the figures were crap." He then goes on to say what was crap were the end-result figures. That wasn't added in, either when Mr. Burt put it in in the case or when this was edited just now. And what Hawkins also says is that the end-result figures that were taken by Westmoreland's people to the conference that he was talking about there were exactly the same as the end-result figures that were inherited from the South Vietnamese. So that when you look at the entire thing in context, I think that you see it was very fairly edited. I don't think that's the legal issue, but I think that comes into play.

MacNEIL: That brings me to where I wanted to come. How do you define the legal issue in this case, in the simplest way you can put it?

Mr. BOIES: I think it was defined very well right at the beginning. It's first, is the broadcast true and, second, did CBS believe the broadcast was true at the time that the broadcast was made? I think those are the two key legal issues.

MacNEIL: The Washington Post, reporting on the trial, said today that the other side clearly has made a dent in your, the CBS, armor. Do you agree with that?

Mr. BOIES: I don't want to debate with the Washington Post.

MacNEIL: Before the trial begn you were quoted as saying that your goal wasn't merely to win, but to prove truth. Is that still your goal?

Mr. BOIES: I think so. I think one of the things that we want to do, even though we don't have the burden of proof -- the plaintiff has the burden of proof -- we want to prove truth and we want to prove that CBS believed it. And the reason we do is tactical.

MacNEIL: Do you want to prove that there was a conspiracy and that CBS was right in reporting it?

Mr. BOIES: Oh, I think we've gone very far in doing that already. I think that even though the plaintiff has the burden of proof, we're not just going to sit back and say the plaintiff hasn't proved its case. We're setting out affirmatively to demonstrate not only that the broadcast was true and not only that CBS believed it, but that the facts are there that demonstrate both of those propositions.

MacNEIL: Let's bring Mr. Burt into this. First of all, do you agree, is fairness irrelevant in this trial?

DAN BURT: You know, what's at issue when you get to a reporter's state of mind, a producer's state of mind, which is the issue that's been described as recklessness of belief or malice in the law, you can't get inside that mind. In many cases you might not want to. What you have to do is look at all the external indicia and a pattern of prejudice -- fairness, if you will -- is one of the things you look at. Then you measure up all those external indicia and you say this person either is a liar or was recklessly indifferent to the truth or falsity of what they were saying. And so that in that regard fairness or a pattern of prejudice certainly is a factor. And we're not talking here about one element of bias. It's not a question solely of coddling. It's a question of re-interviewing people, showing them screenings in advance. I won't throw the question back to you, but I dare say in your career you have never taken an interviewee, filmed an interview with them, then taken them in to see what other people say and then re-interview them on the same subject. The point is obvious you're trying to load them up. Those kinds of things, that pattern of prejudice, is an issue in the trial.

MacNEIL: What's your comment on that? Do you agree that in that sense fairness is relevant here?

Mr. BOIES: I don't think fairness is relevant. I think what's relevant is whether the broadcast was true and whether CBS believed it. I think that in some cases some of the same evidence may go to both of those issues. But take, for example, the specific example that Dan raises, which is the Allen interview. I think it is not even bad journalistic practice, let alone something that goes to the truth or falsity of a statement, to show one interviewee things that other people have said. Reporters are always coming up to me and saying, "Have you seen this outrageous thing that Dan Burt says? What's your reaction to it?" And I don't think that that is in any sense something that affects either the journalistic quality or the fairness or the truth of the broadcast. I think also one thing that has to be taken into account is that the two interviews that Dan talks about, Dan's own witness, Ira Klein, who was mentioned in the introduction, says they're substantively the same, says the story didn't change.

MacNEIL: How do you react to the outrageous thing that Mr. Boies has just said?

Mr. BURT: Well, you know, with a great deal of calm. I think it's simply that. It is outrageous. The distinction in the example he used, where reporters go up and say, "Did you see the outrageous thing that "X" said," is that they are asking for the initial impression and a reaction to something that occurred. In the case of the Allen interview, now I'm referring to, there was an interview about the things that had occurred and then a showing of what other people said about that same event. And so that the reactions second time around and the way in which things were described and discussed could not be spontaneous and unrehearsed. I believe that when the CBS guidelines say that you must have spontaneous and unrehearsed interviews, that that's a real good rule, and you have to have an awfully good reason to disregard it -- in fact, it seems to me, one of the cardinal rules that decent journalists don't want to break.

MacNEIL: Let's go to the trial itself for a moment. The Philadelphia Inquirer reporter -- I'd like to give you an opportunity to respond to something that he said. He said that he didn't think you had laid a case that this was reckless disregard for the truth. Do you want to comment on that?

Mr. BURT: Well, it's hard to comment when I only get that little bit -- section. It looked to me as if he was talking about this coddling point, and on that alone was there a case. But you know people are free to disagree. The press, particularly Mr. Zucchino, I'm told, has reported this case very fairly, very accurately, and I think I'm going to have to wait for the jury to decide whether I've laid a case or not. When you're inside a fight like this, particularly one with all the -- you know, the bread and circuses and people sitting in the bleachers eating Cheerios and popcorn and screaming and yelling --

MacNEIL: Are they really? Is that the atmosphere in this trial?

Mr. BURT: No, from time to time it really is a circus atmosphere. There's no question about it. Outside of the litigants and the people themselves, who are very serious indeed.

MacNEIL: The case has attracted, obviously, very wide attention. The press has a particular interest in this one. What do you think is at stake in this trial?

Mr. BOIES: Well, I think there are probably a number of things at stake. I think a lot of them are peripheral. I think one of the things that is at stake is sort of record a historical sense of what happened in Vietnam. That's not really a legal issue in the case any more than the fairness of the CBS broadcast, in my view, is a legal issue. But that is something that is being affected. Robert McNamara's testimony was the first sort of testimony that he'd given on an important aspect of the Vietnam War. I think another aspect that is being tested, although again I think in a peripheral, non-legal way, is the fairness of the broadcast. I think that is being debated by journalists and others, and whether or not that is a legal issue, what's coming out in court is grist for that particular debate. I think the most important thing that's at issue in the case is the issue, in terms of a legal issue, is what the reach and breadth of the libel laws are. Is this the kind of situation in which a jury is going to be invited, in effect, to re-edit every program or re-edit every newspaper article that somebody doesn't like? Or are we going to stick to what Floyd Abrams indicated in the introduction was the more traditional law of libel?

MacNEIL: What do you think is at stake?

Mr. BURT: I think it's man against the machine. That individual, the man on the street, against enormous organizations like CBS, protected by an extraordinarily generous law, the Sullivan Rule, and the law of libel. It's the question of whether the individual in certain egregious instances has the right to defend himself and to ask those who attack him in the media to be accountable. That's all. And that's a very strong current in our society today. It's the same current that underlies the public reaction to this man Goetz who took a shot at some fellows on the subway.

MacNEIL: Do you think that the narrow technical legal test, as it stands at the moment, the Sullivan ruling, squares with public feelings abut the media at present?

Mr. BURT: Well, I'm not a pollster and I don't know. My own view is that it's a good rule, it's a terribly onerous and difficult, but I think it's a necessary rule to protect freedom in a society like ours, as unpleasant as it may be. We have not attacked that rule in this case.

MacNEIL: You think it adequately serves the public interest, the rule?

Mr. BURT: I think you have to have a major free press. If you're going to have a free society, that's right. But you have to also have an accountable press, and that's the issue here.

MacNEIL: Mr. Boies?

Mr. BOIES: I don't think there's any question about an accountable press in this kind of situation, and we ought not to lose sight of the fact that it wasn't CBS making these charges. These charges were made by eight, 10, 12, 15 former intelligence officers, men from Westmoreland's own command, men who had absolutely nothing to gain by coming forward and making these charges. They're substantiated by contemporaneous documents. We talked about George Allen. George Allen was writing back in 1967 and 1968 that the enemy strength estimates that are at issue here were contrived, phony, deceitful. This is not something that in any sense sprang from George Crile's mind or from CBS. What CBS was doing, what George Crile was doing was reporting serious, substantiated charges by former intelligence officers, men with absolutely no incentive to make up these charges, charges that were, furthermore, supported by the contemporaneous documentation.

MacNEIL: Let me ask you this. If General Westmoreland wins, presumably he is vindicated?

Mr. BURT: That's right.

MacNEIL: If CBS wins, is CBS vindicated?

Mr. BOIES: That depends on the nature of the verdict. It'll be a special verdict, probably, with various sections that the jury has to fill out and findings that they have to make on specific points: was the broadcast true, or was it false? Was CBS recklessly indifferent to the truth or falsity of what they said? And there is an interplay between those, so it's impossible to answer your question.

MacNEIL: Perhaps I should have asked you first on this one. Can CBS come out of this with its authority and journalistic credibility intact? In other words, is it totally vindicated, even if you win?

Mr. BOIES: Oh, I think it'll be vindicated. I think it's been vindicated. I think that the kind of scrutiny that has been given this broadcast has vindicated it now. I think there are very few pieces of journalism that could stand up to the kind of scrutiny by not just one or two people taking a look at it, but the entire press scrutinizing every outtake, every piece of paper that was relied on, every internal memo, every off-hand remark. I think there are very few pieces of either print or broadcast journalism that could have stood up that well under this kind of scrutiny.

MacNEIL: Do you have a final comment?

Mr. BURT: If the other pieces of journalism are less able to withstand attack than this one, then you guys in the press are in real serious trouble.

MacNEIL: We have to leave it there. Mr. Boies, Mr. Burt, thank you for joining us.

Mr. BOIES: Thank you.

Mr. BURT: Thank you very much.

LEHRER: Still to come on the NewsHour tonight, a newsmaker interview on the budget and other matters with Senate Majority Leader Robert Dole and a Judy Woodruff profile of two other congressional leaders with tax reform on their minds, Jack Kemp and Bill Bradley. Dole on the Deficit

LEHRER: The Republicans in the U.S. Senate set up their own budget-cutting shop today in competition with President Reagan's. The GOP Senate leadership and committee chairmen met behind closed doors at the Capitol this morning. In a first meeting the idea is to draft a budget-cutting plan aimed at reducing the federal deficit, one that would be an alternative to Mr. Reagan's. Much was made today over the unusual step of the leaders of a president's own party working on an alternative budget even before his is written. That will be the subject of my first question now to the man who called today's meeting, the new Senate Majority Leader, Robert Dole of Kansas. Senator, what are you up to?

Sen. ROBERT DOLE: Well, we're trying to be helpful to the President, but we also understand that we think his budget falls a bit short and we'd like to do a little better. We'd like to bring that deficit down to less than $100 billion by fiscal year '88. The President's budget's about $140 billion. And so we think our work's cut out for us. We're working with the White House, we're not going around the White House. But we believe we can add something to the President's effort.

LEHRER: But doesn't it essentially make his budget arrive dead on arrival because you all -- he's not even there yet.

Sen. DOLE: Well, not really because we went over all of it today, and most of the material that we reviewed today came from the President's budget. What we've done is to do a little bit more on defense and look at Social Security COLAs and other areas where the President has been reluctant, because of campaign promises or his feeling about defense, to go as far as we've gone. Beyond that I would say 90 of it's pretty much the same as the one Dave Stockman's been using.

LEHRER: How far as you going to have to go on defense?

Sen. DOLE: Well, I don't know from a dollar standpoint. Obvious that we have strong views among Republicans; Cap Weinberger obviously has a very strong view. He's a very dedicated secretary; he feels strongly that it's his responsibility not to let us do too much. But in my view we can do more than the White House suggests and maybe not as much as some in the Senate would like to do. But to put a dollar figure on it now I think might be a mistake. We intend to discuss it with Secretary Weinberger, but we would like to pass a deficit reduction package, and we think unless there are substantial cuts on defense it's not going to pass.

LEHRER: One of those unnamed White House aides was quoted today in an Associated Press story as saying Bob Dole better not push the President too far on defense. Do you plan to do that?

Sen. DOLE: No, we're not pushing at all. What we're doing now is reviewing options. As Senator Goldwater said today, he told us in this meeting, which was a closed meeting, "Let's don't go too far on defense," and that's certainly not my position. I've supported the President 100 of the time on defense, but we also believe if we can eliminate many farm subsidies and Amtrak and a lot of other programs, we believe there is some waste and some things that ought to be eliminated in that $300-billion defense budget. We can't go out and eliminate all these other programs just to protect waste and maybe surpluses in the defense budget.

LEHRER: Senator Domenici said, and in fact we used it in our news summary at the beginning, that you cannot freeze the programs for the poor people and also not freeze them for defense. Is that your position as well?

Sen. DOLE: In a sense, but I think we have to take a little different view of defense. After all, we're talking about our defense, our liberty and all those things. We understand that. And we're dealing with people who are strong supporters of Ronald Reagan's defense efforts. We think we're in arms talks now because of Ronald Reagan's efforts to step up defense spending. But that doesn't mean we can't take a realistic look at Pentagon spending, and that's what we're about. We're not fighting anyone. But we are the Republican majority in the Senate. We are working with the President and we're going to try to get some action in the next 60 days, and we're not going to get it if we spend six months, as we did last year, arguing about whether it ought to be 6 growth in defense or 5 or 13. We don't have time for that. We're not going to tolerate that.

LEHRER: Have you told the President what you just told me?

Sen. DOLE: Well, in a sense. I mean, they understand that if we can't do it in six months we can't do it in 18. And if we don't reduce spending then I think we're headed for a lot of bad news in 1986 and '87.

LEHRER: But have you told him you can't do it without cutting defense more?

Sen. DOLE: Well, I haven't really told him, and we don't tell the President --

LEHRER: Suggested. Whatever word you want to use.

Sen. DOLE: We've indicated that we may take a different look. The President, you know, he came down on the side of the secretary. But we haven't come to any confrontation. We're still negotiating among ourselves. If we can agree among Senate Republicans, then we'll go the President and, "Mr. President, we believe we can do this without jeopardizing our national defense and national security. We're strong supporters but we also believe the deficiti is important to our defense and our domestic economy."

LEHRER: Senator Simpson, Senator Alan Simpson of Wyoming, the majority whip, said today that he felt that what your role may be is to educate the President on the political realities of getting a budget-cutting plan through. Is that correct?

Sen. DOLE: Well, there are some political realities. We have two fewer votes in the Senate, one reality. Secondly, we hope to have some Democratic support, that it's not just a Republican effort. But we also understand we're not going to bring many Democrats and we're going to lose a lot of Republicans if we're not realistic on defense. We're not talking about torpedoing Cap Weinberger's efforts. We're talking about realism in the ag budget, in the defense budget, in the education budget, in all parts of the budget. Not put one off limits and say, well, we don't expect defense to contribute much. So we're serious about it. We're serious about trying to reduce spending.

LEHRER: Now, you mentioned capping or freezing Social Security cost-of-living increases. President Reagan was asked about that today in an interview in the Dallas Morning News. He said, "Wait a minute. Social Security is not responsible for the federal deficit. Why worry with that?"

Sen. DOLE: Well,if there is any change in Social Security COLAs, of course, let's say you're supposed to get a 3 increase next year and we say you're not going to get it next year, that money doesn't go to build missiles or ships or farm subsidies. It goes in the Social Security trust fund, which will make it even sounder than it is today. So it does, in a sense, strengthen the Social Security trust fund, and it doesn't contribute to the deficit now, but in the unified budget it still counts as a deficit reduction, even though it stays in the Social Security Trust Fund.

LEHRER: Why do it then, if it doesn't affect the rest?

Sen. DOLE: It does affect the total unified budget and that's why we're doing it. Plus, when we ask people to sacrifice in every other program in this country, it would seem to me we should at least take a look at Social Security recipients. We're not talking about basic benefit reductions. I was a member of the Social Security Commission; we put together a good package in '83. But let's -- you know, 35 or 38 senators have already voted to do that, Democrats and Republicans, to freeze Social Security for one year.

LEHRER: You Republican senators talking about a tax increase as well?

Sen. DOLE: The only mention of that today was to say are there any areas in the compliance? In other words, people who owe taxes who aren't paying? Can we pick up anything in that area? We believe it'd be a mistake to put a tax increase on the table because then we would not focus on spending restraint. We agree with the President. You only look at that as a last resort, and we're a long way from the last resort.

LEHRER: Senator Goldwater said today, though, that if it comes to that he would support that, if that was the only thing that could be done to reduce the deficit. You agree, do you not?

Sen. DOLE: I think if we got down to the bottom line, where we had a crisis and we had to move, my view is that taxes -- we'll wait awhile on taxes, and if we don't need taxes, I think if we reduce spending as we should, we'll see such a big change in the economy and interest rates we won't need to touch the tax side except for loopholes and compliance areas.

LEHRER: Does this change of Secretary Regan going over to the White House and Jim Baker going over to Treasury, does that change anything, do you think, in the dynamics of your negotiating with the White House and all of that to get a budget plan?

Sen. DOLE: I don't believe so. I think it's a fairly even swap as we look at it, as I look at it from the majority leader's office. They're both very good friends, and I've worked with both Don Regan and Jim Baker closely. So I see it, Don Regan is perceived as more conservative. I don't know whether that's a fact or not, but that may be helpful. Maybe some of the conservatives will feel a bit better. I think they're both pragmatic, is how I would label both Baker and Don Regan.

LEHRER: Pragmatic enough that, if you came to them individually or together, and said, "Hey, look, we're going to have to do something on defense," or, "Hey, look, we're going to have to raise taxes," or anything else that might be difficult, that they would then take the message to the President and help you on it?

Sen. DOLE: Right. I don't think you can realistically say, "Well, we're not going to touch defense, we're not going to touch taxes and we're not going to touch Social Security, but we're going to reduce spending $100 or $200 and some billion the next three years. And that's where we are as a Republican Senate. The President is going to put off-limits defense, taxes and Social Security and said, "Well, go at it, fellas. Go up there and cut $260 billion out of the budget the next three years."

LEHRER: No way, huh?

Sen. DOLE: Well, there's a way, but if you plan early retirement around here, it's a way.

LEHRER: Finally let me ask you this. How do you like being Senate Majority Leader?

Sen. DOLE: Well, so far -- we haven't had any votes, but so far I think we've indicated that we're serious about deficit reduction. I like it. I'm fairly active and hopefully we can work together with Republicans in the House, Republican Senators, obviously the White House and the President, and of course with Democrats. I've got to keep Senator Bob Byrd informed every other day or so. But so far so good.

LEHRER: Senator Dole, thank you very much.

Sen. DOLE: Thank you.

LEHRER: Robin? Passing the Tax Bill

MacNEIL: For our final segment tonight we have a dual profile of two men in Congress who were something like pioneers in a field that has suddenly become all the rage. Judy Woodruff has the story. Judy?

JUDY WOODRUFF: What's become the rage, Robin, is tax reform, and while many people in Washington hope it's going nowhere, there are others, especially the subjects of tonight's profile, who are dong all they can to get it off the ground. They are Senator Bill Bradley and Congressman Jack Kemp, and the reason we're lumping them together has to do with more than just their passion for a flat tax.

[voice-over] It is the mid-1960s and Jack Kemp, quarterback of the American Football League champion Buffalo Bills is leading his team to one victory after another. Before Kemp's career ended, he would lead the Bills and the San Diego Chargers to five League championship games and rack up a career total over nine seasons of 101 touchdown passes.

At just about the same time Bill Bradley, the son of a small-town Missouri banker, was dazzling college basketball fans as a forward at Princeton. From that starring role with honors as an all-American, he went on to play professional basketball for 10 years with the New York Knicks, including some of their biggest winning seasons.

Now, almost two decades since Kemp and Bradley began making headlines on the sports pages, they are making a different sort of news on Capitol Hill, where New York Congressman Jack Kemp and New Jersey Senator Bill Bradley have both become rising stars in their political parties. Republican Kemp says his sports background helped prepare him for Congress in some important ways.

Rep. JACK KEMP, (R) New York: I was an activist. I wasn't a clubhouse lawyer per se, but I was very active in organizing the football players of the American Football League into a union -- into an association, that is. I was, you know, captain of every team I played for, every starting team, every team that I started for. And I was a quarterback. Quarterbacks are activists.

WOODRUFF [voice-over]: Democrat Bradley acknowledges only that being a successful athlete helped in his first campaign.

Sen. BILL BRADLEY, (D) New Jersey: Because I was a professional basketball player who had been on the television sets of New Jerseyians for two nights a week for 10 years, when I would go to speak in a hall there'd be 300 people there instead of 50 people.

WOODRUFF [voice-over]: But Bradley says when it comes to Congress, basketball provided only limited preparation.

Sen. BRADLEY: There is the competitive edge of a campaign in which there are some similarities between the competitive edge of a season of games, of the road, of constant competition. In the Senate it's a much more subtle type of existence.

WOODRUFF [voice-over]: Even so, Bradley's former roommate and Knicks co-star, Dave DeBusschere, who talked with reporter Nancy Nathan, says he always felt Bradley was planning to go into politics throughout the decade he played pro ball.

DAVE DeBUSSCIERE, New York Knicks Executive: Well, you knew he was something special because he was different in his attitudes. He was not what you would think a professional athlete would be like. His interests varied from everything. It could be from reading the tax plans back then, back in the early '70s, to art, to anything you could think of, to the man on the street.

WOODRUFF [voice-over]: National Football League Commissioner Pete Rozelle, a long-time friend of Kemp's, says something similar about him, that he was reading economics books while his fellow players read mysteries. Rozelle also says Kemp developed a tough persistence that he displays now as a politician.

PETE ROZELLE, NFL Commissioner: I remember seeing a game in Buffalo, and I can remember when the half ended, he didn't have a good half and his team didn't. They were booed off the field. And they came back at half-time and they received the kickoff and I think on the first play Jack threw about an 80-yard pass for a touchdown. And it's like in politics, when they're all cheering, he's a winner then.

WOODRUFF [voice-over]: Unlike Bradley, who also had a Rhodes scholarship under his belt to attest that he wasn't just a jock, Kemp says he had to prove that he could handle the job in Congress.

Rep. KEMP: I had to work hard to overcome low expectations. I don't think people expected a professional football player to be much more than a professional, you know, football player in the stereotype that football players are, you know, categorized.

WOODRUFF [voice-over]: House Republican Whip Trent Lott confirms that Kemp had early obstacles to surmount.

Rep. TRENT LOTT, (R) Mississippi: I didn't expect Jack to have, just from that background, the depth and the intellect that he has, and he does have it.

WOODRUFF [voice-over]: Lott also saw another side to Kemp.

Rep. LOTT: He's very competitive. He wants to win and win. And he's excited by challenges and ideas. And I've watched him hear a new idea, a new concept, and you can just see it. It gets in his blood. His adrenalin starts pumping.

WOODRUFF [voice-over]: What's got Kemp's adrenalin pumping these days is tax reform, a modified form of the so-called flat tax, a plan to lower everyone's tax rate in a more or less uniform way, and at the same time do away with many of the loopholes currently built into the tax code. Coincidentally, former fellow athlete Bradley, even though he comes from the opposite end of the political spectrum, is pushing a very similar plan. His Senate colleagues give him credit for being out front with such a controversial idea.

Sen. ALAN SIMPSON, (R) Wyoming: I watch him with his flat-rate tax, and he's on to something, and he's got a lot of guts to do that. He's a risk-taker, and you're taking a big risk when you're saying things in his flat-rate tax that are going to bruise some historic constituencies of his and the Democratic Party -- will bruise everybody when we get through, bruise a lot of my constituencies. But I admire his guts, admire the way he's done his homework.

WOODRUFF [voice-over]: Bradley started thinking about tax reform while he was still shooting baskets. In fact, he says it goes back to the day he signed his first professional contract.

Sen. BRADLEY: My lawyer said, "Well, do you want to take this as salary, as pension, as extra benefits, as deferred compensation, as property, as what?" And I said, "I don't know. I just want to be paid well to do what I love, play basketball." He said, "Well, it's not that simple." So that was my first exposure to the code's complexity, and then I quickly learned in looking at the business of professional sports that I was not simply a player, but I was a depreciable asset.

WOODRUFF [voice-over]: Bradley's ideas about tax reform were sharpened during his first Senate race in 1978, when he ran against one of the original supply-side tax-cut advocates, Jeffrey Bell. But it wasn't until Ronald Reagan came into office and tried to make those tax cuts a reality that Bradley started to work up what he calls his own alternative to supply side. The result of all Bradley's hard work was something he called the fair tax.

Sen. BRADLEY: What we want is the lowest possible rate for everybody out there, and if people realized that the key is the lowest rate possible, that means that they are going to see that as they earn more -- and what American doesn't believe they're going to earn more next year than they earned this year -- that they're going to end up paying less in tax.

WOODRUFF [voice-over]: Introduced in 1982, the fair tax was also known as the Bradley-Gephardt plan, after Bradley's House co-sponsor, Missouri Congressman Richard Gephardt. About a year later, a group of Jack Kemp's pro-supply side friends were gathered in his backyard in Washington. Among them was one of the founders of neoconservative political thought in this country, Irving Kristol.

IRVING KRISTOL, neoconservative writer: I think I suggested that it'd be a good idea for the White House to take the Bradley-Gephardt bill and run with it in a revised form. And at that point a question came up, well, why run with the Bradley-Gephardt one? Have a Kemp-Kasten, which then perhaps could be compromised with Bradley-Gephardt.

WOODRUFF [voice-over]: Kasten was Senator Robert Kasten, conservative Republican from Wisconsin, who later teamed up with Kemp to sponsor the modified flat tax bill Kemp and his staff had crafted. Kemp himself acknowledges he was influenced by Bradley-Gephardt.

Rep. KEMP: Because I knew ours had to be competitive and I knew that we ultimately had to have something that would reach out across the political aisle and so our Kemp-Kasten bill, while different from Bradley-Gephardt, because it gets the rates lower and probably does more for the family and does more for the working poor, was not at odds with the basic thrust of what Bradley and Gephardt were trying to do, because they were trying to ultimately get rates down as low as they could without losing revenue, and those were principles with which I agreed.

WOODRUFF [voice-over]: Still, isn't it a little strange that a Republican and a Democrat from such different parts of the political spectrum would come up with such similar plans for overhauling the tax system? Both Kemp and Bradley say no.

Sen. BRADLEY: Because I think that people see it so clearly, see the problem so clearly. And it is not only Democratic households but Republican households that have been affected by the unfairness of the system. And I think that what you need to do is you need to recognize that this is an American issue.

Rep. KEMP: I don't think, first of all, that Bradley and Gephardt and Kemp and Kasten are from opposite ends of the political spectrum. I think he may be in the center on the liberal side, and I think I'm centrist on the, certainly the conservative side.

WOODRUFF [voice-over]: However, political analyst William Schneider sees more here than just a coincidence.

WILLIAM SCHNEIDER, political analyst: To a large extent government spending and taxation is the codification of about 50 years of special-interest influence in Washington politics. Now, if you're young and you want to be identified with the future, the easiest way to do it is to say, "Let's get rid of the way things are and start from ground zero."

WOODRUFF: Regardless of party label.

Mr. SCHNEIDER: Regardless of party label. It's a way of reaching beyond your ideological base, and the ambitious young politicians in both parties want to do just that.

WOODRUFF [voice-over]: Ambition to be president is what many believe both Kemp and Bradley have on their minds. Kemp doesn't deny it, but claims it's too early to make a decision. Bradley is ruling out any chance he'd run in 1988. Nevertheless, each is well aware of the political benefits to be gained if his tax plan or something close to it were voted into law. Bradley in particular is tempering his expectations that tax reform will go somewhere based on what President Reagan decides to do.

Sen. BRADLEY: The real question is whether the President is willing to take on the special interests in order to give the American people lower tax rates.

WOODRUFF [voice-over]: White House officials say the President will at least endorse some version of a flat tax now that his own Treasury Department has come out with a proposal. Ironically, it is closer to Bradley-Gephardt than to Kemp-Kasten, which protects more business tax breaks. In the meantime, Kemp and Bradley indicate they are ready to work with each other, and probably with the White House, to get some version of their tax plans passed. The conventional wisdom in Washington is that that's a real long shot this year. But Republican Kemp brings up his football background and says the can-do attitude that he had to have then is still part of him now. The same goes for Democrat and former basketball star Bradley.

Sen. BRADLEY: I am basically a positive person, meaning I want to see things happen. I think Jack is positive. He wants to see something happen.

WOODRUFF: Actually tax reform advocates have had their hopes raised over the past day or so that the idea might have a decent chance after all, because Treasury Secretary Regan, whose department came up with its own plan, is now moving to the White House where he will have more of the President's ear. One way or the other, Bradley and Kemp are certain to be in the thick of any battle over the matter. Robin?

MacNEIL: Once again the main stories of the day. President Reagan said he is extremely well satisfied with the results of the Shultz-Gromyko talks on arms.

Senate Republicans discussed budget cuts deeper than the White House is proposing.

The President is reported to have chosen Donald Hodel, the Secretary of Energy, to become Secretary of the Interior.

Good night, Jim.

LEHRER: Good night, Robin, and we'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.