The MacNeil/Lehrer NewsHour

Intro

ROBERT MacNEIL: Good evening. Here are today's news headlines. General William Westmoreland dropped his $120-million libel suit against CBS. The third artificial heart recipient, Murray Haydon, is reported in excellent condition while William Schroeder's is causing anxiety. Reporter Jeremy Levin, free after 11 months' captivity in Lebanon, returned to the United States. Jim?

JIM LEHRER: There are two focus segments on the NewsHour tonight after the news of the day. The lead one is an analysis and debate on the day's lead story, the Westmoreland libel settlement. Then we talk to a key doctor involved in the Haydon-Schroeder artificial heart story in Louisville. News Summary

MacNEIL: General William Westmoreland said today he'd dropped his $120-million libel suit against CBS, satisfied that his loyalty and patriotism had been recognized. CBS said nothing had surfaced in the 18-week trial which diminished their conviction that the documentary which caused the suit was fair and accurate. That documentary, "The Uncounted Enemy: A Vietnam Deception," accused the general of suppressing information on enemy troop strength in Vietnam for political reasons. He denied it. But the testimony of two late witnesses had recently appeared to strengthen the CBS case. At a news conference this afternoon the retired general said he considered the outcome a victory.

Gen. WILLIAM WESTMORELAND, U.S. Army Retired: Now, I brought this suit against CBS to defend my honor and to affirm constitutional principles which indeed include the rights provided by the First Amendment.

REPORTER: Did you feel this is a win, a loss or a draw?

Gen. WESTMORELAND: I consider that I've won.

MacNEIL: CBS also declared itself very satisfied with the outcome. Here is the comment of CBS Executive Vice President Van Gordon Sauter.

VAN GORDON SAUTER, CBS Executive Vice President: The greatest revelation, I think, to the American public is that during this 2 1/2 years of discovery and trial, what CBS had to say in that broadcast was vindicated. And I think that's of great value. And I think that's very encouraging to the journalistic process. I think we at CBS News feel quite strongly and quite joyfully that this broadcast, perhaps the most scrutinized journalistic effort in history, could stand the test of 2 years of day-to-day examination.

MacNEIL: CBS correspondent Mike Wallace, who narrated the documentary and was a defendant in the libel suit, said the outcome is a good day for journalism in general and CBS News in particular. Wallace was due to have begun testifying at the trial tomorrow. After the news summary we devote our lead focus section to the aborted trial and what it means to the media. Jim?

LEHRER: Jeremy Levin is back in the United States. The CNN Beirut bureau chief arrived in a White House plane at Andrews Air Force Base outside Washington this afternoon. Levin, who is 52, escaped from 11 months' captivity in Lebanon on Friday. He was flown here from West Germany, where he underwent medical treatment. Deputy Secretary of State, Kenneth Dam was his official greeter at Andrews. Another 100 or so well-wishers were also there to hear Levin's emotional plea for the four other Americans still held by terrorists in Lebanon.

JEREMY LEVIN, former hostage: They must be found. They've got to be released from the dark pit of their despair, the shackles removed from their bodies. But I think we can take heart from the fact that I'm still alive and once again a free man. I therefore hope my captors have human and humane values, and I appeal to those values now. Let my brothers go! Let your brothers go! In the name of our common Lord -- God and Allah -- please let them go. My former captors, I want you to know I'm not bitter. I'm not angry. But I am glad to be free. Grant freedom to the others now, quickly.

LEHRER: Former boxing champ Muhammed Ali said in Beirut today he has not given up his effort to free the four other Americans. Ali said he may go to Damascus soon to discuss it with Syrian President Assad. The four are Reverend Lawrence Jenco, a Catholic priest, the Reverend Benjamin Weir, a Presbyterian minister, Peter Kilburn, a librarian at the American University of Beirut, and William Buckley, a U.S. Embassy political officers.

MacNEIL: In Lebanon today thousands of Muslim militants poured into the town of Sidon, just evacuated by Israel, demanding the establishment of an Islamic republic. Accompanied by armed militiamen, the Shiite demonstrators tore down Lebanese flags and portraits of President Gemayel and put up pictures of Iran's Ayatollah Khomeini. Lebanese troops stood by, unable to stop the demonstrators. Only yesterday the town had given a hero's welcome to President Gemayel when he celebrated the Israeli withdrawal. Here's a report from Keith Graves of the BBC.

KEITH GRAVES, BBC [voice-over]: The honeymoon was brief. Forty-eight hours after Sidon's main square had been filled with Christians and Muslims embracing each other to celebrate the departure of the Israelis, it was filled again with fundamentalist Shiite Muslims demanding the downfall of Lebanese President Gemayel, the Islamization of Lebanon. Once again the guns were out, side by side with the men of God invoking violent revolution in his name. These scenes are reminiscent of Iran before the revolution there, and these people's allegiance is to Iran's Ayatollah Khomeini. It does not bode well for south Lebanon.

LEHRER: The drama of the artificial heart continues in Louisville tonight in a mixed way. First, there is all good news about patient number three, Murray Haydon. A mechanical heart was successfully implanted in his chest yesterday. Doctors at Humana Hospital in Louisville said Haydon's progress was excellent, and thus far there was nothing to worry about. But doctors continued to express concern over William Schroeder, patient number two, who is also at Humana. Schroeder has had a fever for several days, which was originally thought to be caused by the flu; now doctors think an anti-seizure drug was the culprit. Today Schroeder was reported to be withdrawn and discouraged. Schroeder received his artificial heart 85 days ago. Our second focus segment tonight will bring the stories up to date on both men.

MacNEIL: Overseas again, in South Africa there was rioting in a black shanty town outside Capetown today when residents protested government plans to move them to a new township several miles farther away from their work. Black youths threw gasoline bombs and stones at vehicles on nearby main roads. At least five people were reported killed and 29 wounded in clashes with police. Here's a report from Michael Burke of the BBC.

MICHAEL BURKE, BBC [voice-over]: Crossroads has been simmering for weeks. This morning it burst into bloody rioting which left at least three dead, 40 injured, vehicles wrecked and burned. Hundreds of armed police who moved into the huge squatter settlement to restore order became a target for the crowd's anger. They kept up a barrage of rocks for much of the day. The police replied with rubber bullets and birdshot. They also brought in vehicles firing tear gas, known here as sneeze machines. But the only way the police could patrol the rutted byways of a squatter city now numbering 65,000 people was in armored personnel carriers. Even they were regularly stoned. The reason for the anger is a government plan to destroy Crossroads and move its black population to a new city further out of Capetown -- better conditions, but most of these people are here illegally and don't want to move from the safe anarchy of the squatter camp. Tonight Crossroads is sealed off by police and sporadic firing can still be heard from within the settlement.

MacNEIL: The South African government today dropped a criminal case against Roman Catholic Archbishop Denis Hurley who had been charged with defaming the police. Hurley, a prominent campaigner against apartheid, was accused of falsely charging the police with brutality against black villagers in Southwest Africa. Hurley had welcomed the trial, saying, "A lot of dirt will come out." The General Withdraws

LEHRER: We go first and foremost tonight to the Westmoreland decision, retired General William Westmoreland's decision to abandon his $120-million libel suit against CBS. It was done officially this morning in federal court in New York City, where the case had been under trial for 18 weeks. Westmoreland and CBS issued a joint written statement saying each side now felt their respective positions had been placed before the public, and continuing the legal process would serve no further purpose. Afterward General Westmoreland appeared at a news conference to read the joint statement and explain his decision.

Gen. WESTMORELAND: "CBS respects General Westmoreland's long and faithful service to his country and never intended to assert and does not believe that General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." Now, if that statement had been made after the CBS program had been aired, it would have fully satisfied me. After my press conference in Washington, on June 26, 1982, attended by Ambassador Bunker, George Carver, General Davidson and others, if that statement had been made or offered by CBS, it would have satisfied me. And after the publication of the TV Guide article, such a statement from CBS would have been totally satisfactory to me. If it had been made after the publication of the book, A Matter of Honor, it would have been satisfactory to me. If made during the first day of federal court down in Foley Square, it would have ended the episode. The court action has certainly exposed some of the problems and complexities of producing intelligence on an elusive enemy, the enemy that we had in Vietnam. The court action has certainly exposed some of the problems and complexities in producing a television documentary. Indeed, the court action has emphasized a number of things, among them, the enemy's Tet offensive was a severe defeat. The scope of the enemy's offensive did exceed our expectations because we had to defend an almost unprecedented hostile front of approximately 700 miles along the Cambodian-Laos borders and the demilitarized zone. The size of the enemy troops committed was in line with the estimates of my intelligence chief, General Davidson. Our American troops did an impressive job in fighting the enemy forces in South Vietnam and did not lose a battle of significance. Our country can be proud, and I believe now is proud of their performance. Now, ladies and gentlemen, I hope and trust that the conclusion of my action against CBS will be a benchmark in putting our Vietnam experience behind us and allowing historians and scholars to assess the facts of that war, a unique experience for America, in an accurate and non-sensational terms.

LEHRER: CBS also held a news conference afterward. Here is part of what was said there about the joint statement by CBS executive Gordon Van Sauter[sic], who was president of CBS News when the documentary was broadcast, and by CBS lawyer David Boies.

VAN GORDON SAUTER: I personally do not view that statement as an apology. The important thing to realize that in that broadcast many current and former military and civilian authorities came forward to say there had been an under-reporting of enemy troop strength in Vietnam. Even the harshest critics of General Westmoreland acknowledge that he served this country for many years at self-sacrifice. We believe that the broadcast was accurate and fair. We believe the statement is equitable and the general may read into the statement what he wishes to read into the statement. CBS News says that from his perspective, in his way, the general feels that he was operating in a loyal and patriotic fashion. The value of the broadcast is that it contains several perspectives as to how the general was operating, including at some length the general's own perspective as to whether he was operating in a loyal and patriotic fashion. I think it is up to the public and to the historians to determine which version they wish to choose.

DAVID BOIES, CBS lawyer: I said in the opening statement that when General Westmoreland engaged in this deception it might very well be that he felt it was in the interests of his country that we remain in Vietnam and that it was in the interests of his country that people be misled into believing that we were winning long enough for us to stay in Vietnam and win what he thought was a necessary victory. If Mr. Burt and General Westmoreland can believe that that was sufficient, they should have terminated the lawsuit then. I don't think there's ever been any doubt in anybody's mind that General Westmoreland was pursuing his country's interests in the way that he saw them. I think the problem raised by the broadcast is whether it is permissible for somebody to mislead the country, mislead the Congress and mislead the President because he believes that that is in the country's interests.

MacNEIL: When General Westmoreland rested his case we presented a summary of the key points. Tonight Correspondent June Massell has a brief look at the highlights of the case for CBS.

SAM ADAMS, former CIA analyst: These numbers, so-called numbers, were actually people that we were fighting, people that were killing American soldiers, killing a lot of American soldiers. So it wasn't a fight over numbers; it was a fight over how much the enemy could do to us, how badly they could hurt us.

Gen. WESTMORELAND [January 26, 1982]: Had those numbers been lumped, as before, with the enemy's combat troops, we would have seen a sudden and deceptive -- deceptive increase in enemy strength, and it was not an increase in combat capability, when in reality those people were essentially non-combatants and had been there all along.

JUNE MASSELL [voice-over]: Was there an honest debate about the enemy-strength numbers, as General Westmoreland maintains, or was it deception on the part of Westmoreland, as the CBS documentary said? The documentary, entitled, "The Uncounted Enemy: A Vietnam Deception," said General William Westmoreland deliberately under-reported enemy troop strength to his superiors in order to appear to be winning the war. The documentary charged the general, an American war hero, with deceiving the president and the public by dropping from the official enemy count guerrillas and other Vietcong irregular forces on the grounds that they were civilians and not really fighting forces.

The accusations made by former CIA analyst Sam Adams formed the basis of the CBS documentary. Adams, who had been a paid consultant to CBS, has been researching what he calls the Vietnam numbers game for 18 years. Without him there would have been no documentary and no libel suit. He's been criticized by some as obsessed to the point of having a mental condition, and praised by others for being a brilliant analyst with a high degree of integrity. In court Adams, a defendant along with CBS, testified that one-third of all American casualties were caused by the so-called "irregular forces." He characterized the numbers game as the biggest scandal in military intelligence he was aware of.

CBS's second witness was the man known as the dean of Vietnam intelligence, George Allen, the deputy chief of the CIA's Vietnam staff. Allen said that the Vietcong's self-defense forces, labeled by Westmoreland as non-soldiers, had been responsible for as much as 40 of American losses in Vietnam and that they belonged in the total enemy estimates. Allen called the compromise in which the CIA accepted the military's lower figures "the mistake of the century."

While Westmoreland maintains there had been a disagreement between the CIA's analysis and the military's, it wasn't only senior CIA officials who came to testify against Westmoreland at the trial. For example, General Joseph McChristian, Westmoreland's intelligence chief in Vietnam. Testifying against his former boss was an unusual, perhaps unprecedented step for a military officer. He accused Westmoreland of refusing to send a cable to Washington to report the enemy was twice as strong as officially stated. McChristian said Westmoreland told him, "If I send the cable to Washington it will create a political bombshell."

Next came more damaging testimony from Colonel Gains Hawkins, another member of Westmoreland's own command, the man who was in charge of estimating enemy strength. On the stand he confessed that he instructed his staff to cut the numbers. Asked by the CBS attorney if there was any intelligence or evidence to justify these orders, he said, "There was none, sir." The attorney: "Were they proper orders?" Hawkins: "They were not, sir. I carried out orders as a loyal officer in the U.S. Army."

Never looking at his former commander, Hawkins said he believed the orders originated with General Westmoreland. He called the figures crap, a terrible misrepresentation of the truth, and testified that General Westmoreland had told him higher figures were "politically unacceptable." In November, Westmoreland testified he did brief his immediate superiors about the higher figures in May of 1967, a meeting that Westmoreland said Hawkins attended. But on the stand Hawkins said he did not recall such a meeting. Throughout the testimony Westmoreland remained expressionless, showing no emotion.

So the answer to the question, an honest debate or suppression of the numbers, may never be known. Three years after the documentary and just a week before the case was expected to go to the jury, General Westmoreland has dropped his case. CBS, who contended the case never belonged in court, seemed to get what it wanted all along -- a judgment made in the court of public opinion rather than in a court of law.

MacNEIL: With us again are the attorneys for the two sides: Dan Burt for General Westmoreland and David Boies for CBS. Mr. Burt, it's being widely suggested today that you gave up because recent testimony -- we've just heard a couple of examples of it -- supported CBS's position so strongly that you couldn't win.

DAN BURT: No, I don't think that's true. We've been discussing this issue and what we wanted for 2 1/2 years now. We came into court looking for a statement that General Westmoreland was a faithful, patriotic, loyal man. We got that. We took it. Remember, the gentlemen at CBS didn't have a gun pointed at their head, and they gave that. And that was the crux of it.

MacNEIL: What do you mean, they didn't have a gun pointed at their head and they gave --

Mr. BURT: They could have said, "Look, forget it. We think everything we said in that documentary is true, and we're not going to say anything else." And on we would have gone.

MacNEIL: Do you consider that the CBS statement amounts to an apology to the general?

Mr. BURT: That is the first thing that was said to me by a gentleman from another network when he interviewed me this morning coming out of court. He said, got me up on one of these little boxes and he said, "Don't you believe that this amounts to, in effect, an apology or a retraction?" I said, "Yeah, it looks like it to me." But I think that's something that the public is going to have to decide.

MacNEIL: Mr. Boies, do you think it amounts to an apology by CBS?

DAVID BOIES: Of course not. Let's get a couple of things straight. First of all, Mr. Burt says that if CBS wanted to say the broadcast is true and accurate and we stand by it, it was free to do so. CBS did exactly that. CBS issued a statement, and Mr. Burt knew we were going to issue that statement, that said the broadcast is true and accurate and we stand by it. The second thing, before the rewriting of history gets too far along, let's remember that the plaintiff came into court seeking $120 million, seeking an apology, seeking air time to reply, seeking to bar CBS from republishing the broadcast. General Westmoreland drops his lawsuit, getting not a penny in damages, getting no apology, getting no air time, with CBS completely free to rebroadcast that program as many times and as often as it wishes. If you view that as a victory, maybe you'll view the Vietnam War as a victory.

MacNEIL: Mr. Burt?

Mr. BURT: The reason we went to court was very clearly stated in the press conference that General Westmoreland had. He went there to restore his honor so that people would see indeed he was a loyal and faithful, patriotic man. Now, they've given that to us in that joint statement. The record is very clear, and everyone can judge. We have not had to spend any time explaining away the statement, the joint statement, because we're quite happy with it.

MacNEIL: If his honor is restored, let me ask, how is his honor restored? Although CBS says it doesn't question his patriotism and loyalty, it continues to stand by a documentary which makes the charge, and as it stands, not only that the figures were manipulated for political reasons, but that there was a conspiracy to do so, which is the word used at the beginning of the documentary.

Mr. BURT: I don't think those positions are reconcilable.

MacNEIL: They are not reconcilable?

Mr. BURT: I don't think so.

MacNEIL: Well, if they're not reconcilable, then how is the general's honor restored, if CBS continues to stand by the documentary?

Mr. BURT: The latest thing they said was what was in that joint statement -- loyal, faithful, patriotic. Perhaps there is some kind of reinterpretation of the documentary. We have certainly had plenty of that in court. I dare say we'll see more of it since.

MacNEIL: Why, if you were so sure of being vindicated by a jury in the end, didn't you refuse to take the settlement?

Mr. BOIES: When a plaintiff comes in and says, "I'm willing to drop my lawsuit, I don't want an apology, I'm not going to require any money even for attorneys' fees or costs," I think a defendant ought to let him do that.

MacNEIL: You mean because you regard that as a total surrender? Is that it?

Mr. BOIES: I don't really want to characterize this as a victory or a surrender. I think it is in everybody's interests to allow General Westmoreland, who was a man who served his country for a very long time in an unselfish way, perhaps a misguided way, perhaps a wrong way, but nevertheless in an unselfish way, to retire with as much dignity as possible. I think it would be a mistake, however, to interpret a paragraph of graciousness as anything like an apology.

MacNEIL: Why didn't CBS pursue General Westmoreland for its costs?

Mr. BOIES: CBS isn't in the business of repossessing cars. We're not going to pursue somebody to a point where we require them to pay the transcript costs. If he wants to drop a lawsuit and go back, he ought to be permitted to do that, and he ought to be permitted to do that with a measure of dignity. And ought not to be pursued, and ought to be allowed to retire as gracefully as that is possible to do.

MacNEIL: In a recent lawsuit against Time magazine there was a mixed finding by the jury, which in a couple of its early findings criticized Time's journalism, although it did not find libel in the end. Was CBS afraid that such a verdict might come, bcause CBS itself had criticized some of its own technique quite publicly several years ago when the documentary was first attacked? Did it fear that its name might be besmirched by a mixed verdict such as Time suffered?

Mr. BOIES: No, I think CBS believed that it would win on both issues to the extent that both issues were decided by the jury. I think that the jury, of course, will be interviewed tomorrow and I think we'll have an opportunity to see at least what their preliminary views were. But I think CBS was quite confident; indeed, every time an opportunity for settlement has been presented by the plaintiff whereby the plaintiff required any money, even a dollar, any apology, even a partial one, CBS has declined that. If it was a question of paying any money or backing away from the broadcast at all, CBS was prepared to go to a jury and prepared to have that issue decided.

MacNEIL: Two points. What did you consider CBS motives for settling at this stage?

Mr. BURT: Now, let me point out first that when Westmoreland brought the suit he stated publicly that money was not an issue. Had there been a monetary recovery, that all would have gone to charity. Their motives for settling, I think you have to ask them. It's perfectly obvious that they were willing to provide us with what we needed. I think, however, had Mr. Boies, having been gracious a moment ago, it would be churlish of me to speculate and fan the flames of an already intense debate.

MacNEIL: They were willing to provide you with what you needed now, but from what Mr. Boies has just said they were not willing earlier. How long have you been attempting to get a settlement?

Mr. BURT: We have had discussions, both parties, for a long, long, long time. I mean, they go back and forth. People raise them. This is customary in civil litigation.

MacNEIL: It's being suggested that another motive for CBS settling now and quickly, when it might have gone to the end, was that it was about to put its -- one of its most famous news correspondents on the witness stand, and that they might have preferred not to. This has been suggested today in speculation. They might have preferred not to do that. Is that part of your motive?

Mr. BOIES: No, not at all.

MacNEIL: Mike Wallace, I was talking about.

Mr. BOIES: No. Mike Wallace was prepared to go on the stand back in December or January. The plaintiff had indicated a desire to call Mr. Wallace and we had Mr. Wallace available to go on at that time. I don't think there was any hesitancy about that. I think it's more likelythat an incentive to settle on the part of the plaintiff or drop its case was before Mr. Wallace testified -- who I think would have been a very effective witness. One thing we ought not to lose sight of is that the first time that the plaintiff offered to drop its case with no apology, with no money, with CBS free to say it stands by the broadcast, was on Sunday. And as soon as the plaintiff offered to, in effect, withdraw his lawsuit on those terms, it was accepted. I think the other thing that we ought to not lose sight of is what was shown on the clip at the beginning of this program, which is that the very first day of trial I said to the jury that we were not challenging and the broadcast did not challenge General Westmoreland's motives for entering into the deception. I said at that time, and CBS, I think, has consistently believed that he did it because he thought it was important to keep this country in that war, important enough to mislead his president, mislead the Congress and mislead the public to do that.

MacNEIL: But General Westmoreland also said, and we heard him in another of the clips earlier, that if CBS had offered him this statement years ago and months ago, at several stages he mentioned, he would have been willing to settle. Why, if CBS could offer this statement today, could it not offer the statement months ago or years ago?

Mr. BOIES: The problem is, CBS did. I did, in my opening statement. General Westmoreland says that today. He has never said that before. That's the first time he's ever said that.

MacNEIL: Let me get Mr. Burt's comment on that.

Mr. BURT: We never had an offer like that, and so on we went. It's very simple. Very simple. But, you know, the key thing here is to reciprocate this graciousness, and I think it's something really the public ought to focus on. In the last analysis this is an endless debate that will go on after all of us are dead. And that's not the kind of debate, in the very last analysis, that ever gets settled in a courtroom of adult men and women.

MacNEIL: Are you saying then it should not have been brought to a courtroom?

Mr. BURT: No, because there was no other way to obtain accountability and accounting and, secondly, there was no other way for him to be called by CBS faithful, loyal and patriotic. I'm putting what was stated as a double negative into the positive. And I say patriotic and loyal.

MacNEIL: No other way?

Mr. BOIES: I think Mr. Burt is right that these issues don't belong in a courtroom. I said that when I was on this program with Mr. Burt six weeks ago. I think that CBS has from the beginning, in a number of forums, including the courtroom, said that it did not question that General Westmoreland was acting patriotically as he saw his responsibilities. And that's very clear in the joint statement. CBS does not say he was patriotic, does not say he was loyal. It says he was acting as he saw his duties of patriotism.

MacNEIL: Well, gentlemen, thank you both for joining us.

Mr. BURT: Thank you very much.

Mr. BOIES: Thank you very much.

MacNEIL: Jim?

LEHRER: We expand the debate now with two observers who observed the issues and the stakes in the General Westmoreland case very differently. They are Anthony Lewis, a columnist for The New York Times, who is with us from public station WGBH in Boston, and Reed Irvine, chairman of Accuracy in Media, a press watchdog group headquartered here in Washington. Mr. Lewis in Boston, Mike Wallace said today that this was a good day for journalism. Do you agree?

ANTHONY LEWIS: Yes, I do. I think it was a good day for the First Amendment, which isn't only for journalists but for the people of this country.

LEHRER: In what way?

Mr. LEWIS: Because I agree with what was belatedly said by my friend Dan Burt, that this issue does not belong in a courtroom. These were political questions. Everything about the Vietnam War was political, particularly including the meaning of figures and the whole dispute about the size of the enemy, and it should have been open to public debate, which is the way issues of a political character are historically, have been historically decided in this country. We don't put issues of that kind to juries. We haven't in the past; we shouldn't have now. The ending was appropriate.

LEHRER: Do you agree the ending was appropriate, Mr. Irvine?

REED IRVINE: Oh, I think the ending was very unsatisfactory and very disappointing. I believe that General Westmoreland should have let this case go to the jury and let the jury decide. I happen to agree, however, with Stan Owens of Newsday, who in his column today said that Westmoreland's efforts to get the record straight were sabotaged by his choice of lawyers. I think the case was badly handled, and the fact that the presentation that you made earlier on summarizing the case -- I think shows how badly handled it was. It was very --

LEHRER: That was only summarizing the CBS case, the last part of the CBS case --

Mr. IRVINE: Yeah, that's right, and it was unfortunate that this has not been answered and that this will go down, I'm afraid, in the minds of many people. These are the last things that people are going to remember. They're forgetting the enormous volume of evidence that was put forward in November and December and early January, which showed just how bad and how inaccurate this documentary was.

LEHRER: Well, is there any question in your mind, though, that the reason General Westmoreland decided to withdraw the lawsuit was that he felt he was going to lose it?

Mr. IRVINE: I would have to say that that's the only reason that I can see. I don't buy Mr. Burt's general statement that what they got from CBS was by any means satisfactory. I don't think that the people that contributed a couple of million dollars to fight this case contributed that money just because they wanted to see CBS say that they agreed that General Westmoreland was a patriot. I think they wanted to see demonstrated, decided by a jury whether or not it was true that General Westmoreland had entered into a conspiracy to deceive the president of the United States and his superiors about the enemy strength. I think that it's clear that that was not the case, that that was not done. And, moreover, CBS -- I noticed that Robin had said earlier, mentioned the conspiracy charge, CBS actually withdrew the word "conspiracy" after -- when they released the Benjamin report in July of 1982. They said that conspiracy was not the appropriate word to use. So, you know, they had a strong case. They had a lot going for them, and I think that it was just badly handled by the lawyers, I'm afraid.

LEHRER: Mr. Lewis, what's your view on the question of whether or not General Westmoreland's honor has been restored? You heard what was said earlier.

Mr. LEWIS: I don't think that his honor, in the sense of his lifetime devotion to the armed services, was ever in question. The question was a particular one, whether he had engaged in this deception of the president and the American people. The short of it is that, as has I think been conceded by everybody, there were strong witnesses in the courtroom supporting theCBS view, in particular two people who had served with General Westmoreland and under his command, dealing directly with this problem -- Colonel Hawkins and General McChristian. Their testimony was devastating because it made clear that they had had a response from the general that it would be politically difficult to report the intelligence findings to the president. That supported the CBS view. I don't personally think there's much point in us as outsiders arguing the evidence here. The fact is that the general gave up the lawsuit, evidently because he didn't think he was going to win. And I think we should concentrate on what a lawsuit like this does. Nobody's mentioned the cost, the millions of dollars -- seven or nine million dollars, it's been estimated -- for lawyers' fees, years of time and effort on all the people concerned. I just think it is a great mistake to use this monstrous litigation tactic for something that really should be left to political debate.

LEHRER: Mr. Irvine, your view on that?

Mr. IRVINE: Well, I agree. I certainly never advised General Westmoreland to -- I was close to him at the time the documentary was aired and thereafter, and I never advised him to sue.

LEHRER: But you supported him all the way through, his position.

Mr. IRVINE: I supported his position. I think the program was badly flawed; it was a terrible program, and what bothers me is that CBS is coming out now and saying that it's accurate, ignoring all the evidence to the contrary.

LEHRER: Well, what about -- yeah, go ahead?

Mr. IRVINE: But I think that there is -- you know, I don't like to see these enormous amounts of money spent to set the record straight. I think the proper way is to do what PBS is doing. Next May it's going to air a one-hour documentary on Vietnam produced by Accuracy in Media to criticize the 13-part series on Vietnam that's been aired a couple of times, called "Vietnam: A Television History." I think this is an excellent way to go about setting the record straight. The cost is less than $100,000, and a wide audience is going to see the program. And it's far better than going into court and arguing and spending millions of dollars on lawyers' fees.

LEHRER: Well, then, you were close to the decision. Why did General Westmoreland decide to go this way?

Mr. IRVINE: Well, I have not been close to the decision since the libel suit began.

LEHRER: Well, that's what I mean, the decision to file the lawsuit in the first place. Tony Lewis says it shouldn't be there, shouldn't have been there in the first place. You kind of halfway agree with him. When then did the general go that route instead of the political route?

Mr. IRVINE: Well, you know, here is the problem that -- I said PBS is going along on the Vietnam program. CBS was not going along. CBS was doing nothing to give another side -- the other side of the story until it was clear that the general was going to sue, Tony. And then they offered him a limited amount of time in a talking-heads kind of program with people on the other side. That was not enough at that point. I think what we need is greater openness on the part of all the networks, all the media, to come in and say, "Yeah, there's more than one side to this story. Let's see both sides."

LEHRER: Tony?

Mr. LEWIS: Well, that sounds simple, and I will agree that sometimes not only networks but the press can be too resistant to admitting a mistake or letting other views be heard. But from the beginning in this country we've had a system in which press, the little penny papers first and now television and so on expresses its view. The press is not a billboard, as in, shall we say, China. The press is -- we have competing media, just as, for example, CBS had its program and then TV Guide did a very critical commentary on that program, each expressing its point of view, its collection of the facts. And, you know, we don't open up the newspaper, except to a limited extent on an Op-Ed page, to get different views, which is a good thing, but the newspaper is responsible for its product and the television network or PBS or the station is responsible for its product. That is our system in America, and it's a little complicated to get into a sort of common carrier where it's nothing but a billboard.

Mr. IRVINE: Well, Tony, what do you think about the PBS action in giving an hours' time or maybe even two hour's time to a critique of their series? Is there something wrong with that?

Mr. LEWIS: The difficulty there is this. You were critical, as I understand it, of the program from what would be called the right-wing point of view. There were many people who are critical of it also from the left-wing point of view. They thought the program leaned over too far backwards to be favorable to the American view, the official American view of the Vietnam War. Now, where does it end? Years ago, not so many years ago, maybe, half a dozen or eight years ago, 10 years ago, the Supreme Court had a case in which a state passed a law requiring any newspaper that criticized a political candidate to run his response. And the Supreme Court said, "Well, where does that stop? He runs his response and he's critical of someone else, and then that person gets to respond and pretty soon the editor isn't editing the newspaper anymore." That's the problem. I mean, it sounds good but, believe me, it's complicated to know where do you stop.

Mr. IRVINE: Tony, we've had for 35 years in this country something called the fairness doctrine, which applies to broadcasting licensees. And there is a complaint, as a matter of fact, before the Federal Communications Commission on the Westmoreland program, which they have been sitting on for, I think, nearly two years. They have been -- and this is something that could be done in broadcasting and should be done in broadcasting, according to the law. Now, it's true that -- you're referring to the Tornillo case in Florida -- that the Supreme Court just threw out the Tornillo case. Newspapers are not subject to that, but broadcasters are and I think this is a perfect case, a perfect example where this whole lawsuit could have been avoided if the Federal Communications Commission had simply gone along and enforced the fairness doctrine.

Mr. LEWIS: There you're getting into something where I think all of us can see the difficulty. You're going to have a federal agency, maybe to a little extent it's been done in the fairness doctrine though the FCC hasn't been very active in policing that, but if you've got an active situation in that, you'd have a federal agency, a bunch of officials of the United States, deciding what was fair, what was true, and that is not the American system, to have governments deciding those things.

Mr. IRVINE: Well, the Supreme Court declared it in the Red Lion case to be constitutional about 15 years ago, a dozen years ago, and I don't know why Tony Lewis -- I know you're an expert on constitutional law, Tony, but you haven't been appointed to the Supreme Court yet.

Mr. LEWIS: I know, but the court occasionally changes its mind, and I think it might on this one.

LEHRER: Tony Lewis in Boston, thank you very much; Reed Irvine here in Washington, thank you. How Are the Patients?

MacNEIL: Next tonight, we focus on news from Louisville, where another artificial heart was implanted yesterday while there was increasing anxiety about the previous recipient. Charlayne Hunter-Gault has the story. Charlayne?

CHARLAYNE HUNTER-GAULT: Robin, late this afternoon doctors at Humana Hospital were jubilant about the condition of Murray Haydon, the retired auto worker who yesterday became the third man in history to receive a permanent artificial heart. Haydon was recovering just down the hall from William Schroeder, who is still confined after his artificial heart operation 85 days ago. Here is a report on the progress of both men from Melissa Forsythe of WHAS-TV in Louisville.

MELISSA FORSYTHE, WHAS-TV [voice-over]: Fifty-eight-year-old Murray Haydon is making the artificial heart experiment look easy, allowing his family and doctors to breathe easy.

Dr. ALLAN LANSING, Director, Humana Heart Institute: His vital signs have been extremely stable. He has been awake, moving everything, responding to commands appropriately and aware that his wife and family were in to visit him.

FORSYTHE [voice-over]: The routine recovery follows a remarkably routine implant yesterday of the Jarvik-7 heart. The patient's high spirits were matched by those of the medical team, anticipating fewer problems than with the two previous artificial heart recipients. The retired Louisville truck assembly line worker had perhaps a few weeks to live because of his deteriorating natural heart, but Haydon had no other real medical problems. Three and a half hours after it began, in record time, the mechanical heart was in place and working flawlessly.

Dr. WILLIAM DeVRIES, artificial heart surgeon: He's doing fantastically in there now. It's just perfect.

REPORTER: Dr. DeVries, how did the operation go today?

Dr. DeVRIES: Perfect. Couldn't have gone better.

REPORTER: Very happy?

Dr. DeVRIES: Oh, yeah. We all are. Fantastic, just like you planned it. It's almost like we planned it that way.

FORSYTHE [voice-over]: It was the third time Dr. William DeVries had performed the procedure on a human, the second time for the team at Louisville's Humana Heart Institute.

Dr. LANSING: They've already been through one implant procedure and they feel very confident in their ability. So it was a very calm, quiet and expected success type of attitude.

FORSYTHE [voice-over]: Dr. Allan Lansing said Haydon shows no significant bleeding, despite blood thinners administered immediately to prevent a stroke.

Dr. LANSING: I can't think of anything right now that I would be tremendously worried about. He has the usual problems of any open-heart patient, minus the chance that he might develop something wrong with his heart or an arrhythm problem that would be a threat. So he has, if anything, fewer problems to worry about, particularly if he gets by the first four to six hours.

FORSYTHE [voice-over]: Those critical hours passed without incident. By evening Haydon was awake and enjoying the company of his wife, Juanita. By morning doctors increased Haydon's mechanical heart rate from 50 to 60 beats a minute, and he was being weaned from the respirator.

Dr. LANSING: The only medication that he is on is the medicine to control his blood pressure to prevent him from developing significant hypertension, and he continues on the anti-coagulant drugs that were started yesterday but fortunately they have not caused problems with bleeding. In summary, he has had a very excellent post-operative course, has remained very stable and, up 'til now, we could not ask for a better situation.

FORSYTHE [voice-over]: But the situation could be much better for the only other man alive with an artificial heart, Fifty-three-year-old Bill Schroeder of Jaspar, Indiana, who suffered a stroke 18 days after his implant, is very ill. Schroeder has been battling a fever for weeks with little enthusiasm.

Dr. LANSING: He has really basically been someone who's very weak, tired and discouraged in the last week or so.

FORSYTHE [voice-over]: Schroeder's speech was impaired by the stroke, and now he does little talking, spending most of his time in his hospital room. Dr. Lansing calls the patient's spirit a determining factor in recovery. He conceded today that Schroeder's survival is at stake.

Dr. LANSING: Am I sure that Mr. Schroeder can go home or will go home? I am sure that he can go home. I am not sure that he will go home.

HUNTER-GAULT: For an update and more details on developments at Humana we go now to the man who is the director of The institute, Dr. Allan Lansing, who joins us tonight from Louisville.

Dr. Lansing, you were quoted a little while ago by the Associated Press as saying that Mr. Haydon's condition is so good it's frightening. Could you tell us a little bit about that, briefly?

Dr. LANSING: Well, I would think that that is a perfectly true statement. He has had absolutely no problems, looks just like a routine post-operative open-heart, and just is ticking along with no difficulty at all. So we don't see any problems. We haven't had any. He's off the respirator, he's able to talk. He'll start taking things by mouth tonight, and he looks fantastic.

HUNTER-GAULT: Is there any reason that you were anticipating fewer problems with him than with Mr. Schroeder?

Dr. LANSING: Yes, I think there were two major things. First of all, he had not had any previous heart surgery so there were no problems with adhesions or bleeding and, secondly, he is not a diabetic and does not have the arterial disease that Mr. Schroeder had, and consequently we're hoping that he won't have any of the other vascular problems.

HUNTER-GAULT: So what does that mean in terms of his immediate as well as his, say, intermediate and long-term prognosis?

Dr. LANSING: Well, of course we don't know what the prognosis is, intermediate and long-term, because we really haven't had any experience. We believe, however, that his immediate outlook is much better and we hope that this means that he will not suffer from the previous problems that we've seen in the two other recipients; that is, particularly the neurological problem of the stroke or mental problems. His attitude and that of his family is just outstanding, and he already is talking about going home and wanting to know about how to run the drive system.

HUNTER-GAULT: That's the mechanism that powers the heart, right?

Dr. LANSING: That's right.

HUNTER-GAULT: What kinds of things are you going to be looking for with him in the next few days -- the kind of monitoring that would concern you?

Dr. LANSING: Well, basically he'll be treated like any other open-heart patient in that he will gradually have his various tubes removed, he will be out of bed, and we will start him on a diet particularly to build up his strength, since he lost such a lot of weight before operation. Other than that, I think it's mainly early ambulation, continuing the anti-coagulation --

HUNTER-GAULT: Ambulation? You mean, early walking around, getting out of bed and so on?

Dr. LANSING: That's right. And getting him on a good diet and encouraging him to develop his strength as quickly as possible.

HUNTER-GAULT: How does this compare with the same time period for Mr. Schroeder right after the operation?

Dr. LANSING: I would have to say that he is 24 to 36 hours ahead of Bill Schroeder, but his operation was only half as long and he did not have to be returned because of post-operative bleeding. So for these two reasons alone he is well ahead of Mr. Schroeder.

HUNTER-GAULT: You were -- you saw yourself, I believe, just a few moments ago quoted in the tape piece as saying that Mr. Schroeder was withdrawn and discouraged. What is causing his problem? Why is it so bad for him?

Dr. LANSING: Well, I'm happy to report that as of this afternoon he has shown significant improvement over the weekend. The discussion this morning was, how has he been for the last two or three weeks, and the answer was that he has not been well. He has had a low-grade fever; no cause had been found for it, and this caused him to lose strength and appetite, and when he had been thinking about leaving the hospital and instead of that ended up still stuck in the hospital, he became discouraged. Over the weekend he started to feel better, he has started to eat, he's been out of bed more, he looks much more alert and even happy at times, and his temperature is slowly subsiding. We think it was a reaction to a drug that he was taking, but we are not absolutely positive. We are very happy to see him looking better again.

HUNTER-GAULT: But you are also quoted as saying that the quality of his life was not good. Is all of that tied to his mental attitude, and could have that improved in that short amount of time that you just described?

Dr. LANSING: No, the reference to quality of life I think indicated his quality of life compared to what we hoped. First of all, with the stroke he has lost some speech, and this has impaired a perfect quality of life. And, secondly, with this fever and the weight loss and loss of strength, he has become or he had become confined to bed. And, obviously, this is not a good quality of life. If he reverts to the way he was three weeks ago when he was riding the exercise bicycle for 30 minutes at a time, walking up and down the hall, looking extremely strong, then we would have to say his quality of life again has improved. And we trust that that will be the outcome.

HUNTER-GAULT: What is the prognosis for his mental attitude as well as for his, as you say, reverting back to his previous program of exercise and so on? I mean, given everything that's happening with him now?

Dr. LANSING: I think that if his temperature continues to subside and he gets back to getting his appetite and strength, and then makes the next big step of moving out of the hospital -- either just going out in the van for trips and then finally being transferred to the intermediate home, then I think we would see an enormous, tremendous increase in his spirits and his strength and his activities. I look on that as being the most important medicine that there is around.

HUNTER-GAULT: So you are revising the statement that you just made in the tape piece that he could go home, but the question of whether or not he would go home -- you've changed your disposition about that?

Dr. LANSING: No, I am more encouraged by his appearance today than at any time in the past week. I made the statement this morning that I do not know the outcome, and I still don't know the outcome, but I am more hopeful with his appearance this afternoon than I ever was a week ago ortwo weeks ago. And we have all been very concerned for the last two or three weeks. But I would have to say that Friday, Saturday, Sunday and Monday, each day he has made an improvement and even his family notices a big difference in his general appearance and his activities and his strength. So I would say this morning I was describing the way I have felt for the last two and three weeks. This afternoon I feel more encouraged because he has continued the progress that he's had over the last three or four days.

HUNTER-GAULT: How much of the future of the whole program sort of rests on what happens to, in fact, to both these men? How much of it now, say, for example, is riding on Mr. Haydon's good recovery?

Dr. LANSING: I think that the program should be continued through the series of seven implants. Each one of these patients is an entirely different individual with entirely different problems. And Mr. Haydon happens to have the least other problems. But Dr. Clark had very bad lung disease and renal failure, and Mr. Schroeder had the previous operation, diabetes and arterial sclerosis. We cannot apply to any one of these patients the same criteria. I would hope that we would finish the series of seven and that after that we would take a look at the continuation of the program.

HUNTER-GAULT: You have four more after today?

Dr. LANSING: Yes, we should have. Now, if there were a catastrophe with Mr. Haydon and if there were a catastrophe with the next one, then we would certainly have to review our approach. But I sincerely believe and hope that we will be able to finish these seven, then take a very careful look at the program in the future.

HUNTER-GAULT: All right, well, Dr. Lansing, thank you very much for being with us.

Dr. LANSING: Thank you. It was a pleasure being with you.

HUNTER-GAULT: Robin?

MacNEIL: Once again the main stories of the day. General William Westmoreland dropped his $120-million libel suit against CBS. Murray Haydon, the third man to get an artificial heart, is reported in excellent condition. There was concern about William Schroeder; we've just heard that is easing. Jeremy Levin, the reporter who escaped from his kidnappers in Lebanon, arrived home in Washington. Good night, Jim.

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