2 there portions of the attachments that you contend are. MR. BURT: Yes, your Honor~ someone in the CIA. SOUTHERN DISTRICT REPORTERS, U.S.

Transcription

1 .L, am t What about any attachments', are 2 there portions of the attachments that you contend are 3 relevant? 4 MR. BURT: These are from -- the attachment is 5 from Director Helms, your Honor. 6 Yes. 7 MR. BURT: And I address you attention to 8 paragraph 3. 9 The one numbered 3, the new 10 estimate? 11 MR. BURT: Yes. Should I read the part that's 12 been crossed out? 13 MR. BURT: Yes, your Honor. Paragraph 4 on page Yes. 16 MR. BURT: And the paragraph in the introd uctory 17 note, two pages on. 18 Which paragraph? 19 MR. BURT: The first paragraph, your Honor. 20 Who is the author of this 21 introductory memo. 22 MR. BURT: The author of the introductory memo, 23 I don't know, your Honor. 24 Someone in the CIA? MR. BURT: Yes, your Honor~ someone in the CIA. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y

2 ... --~-~~---~ _.._---_._ ,,--_._ ' I am t Your Honor, I am informed that the first paragraph, the introductory paragraph in the SNIE, Special National Intelligence Estimate. 4 MR. BOIES: Are you saying the whole introductory note comes from the SNIE? now. MR. BURT: Not at this time. I am checking that 8 And you are offering this for the 9 10 truth of what's said in it or what? MR. BURT: Both that it was sent and received, 11 your Honor. The fact of that communication and also for the truth of it under the business records exception, the public records exception and the 803 (24). I don't understand. I thought this is what we spent a long time talking about on Friday 16 afternoon. The issue, one of the issues, one of the most important issues, is whether CBS defamed General Westmoreland by accusing him of putting out bad, politically motivated, arbitrary data. I think we have agreed it is not an issue in the trial. It may be an issue of interest historically, whether the President was deceived or whether other people 23 were deceived. The question we're dealing with is whether 24 General Westmoreland in putting out MACV data, the Order of Battle and whatever other figures are in controversy, was SOUTHERN DISTRICT REPORTERS. U.s. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y

3 am t4 r L ~ 1 attempting to give good information or whether he was 2 attempting to give bad information. 1 ( 3 Now, this document -- to back up a moment -- and 4 it's not an issue in the trial, assuming he was trying to 5 deceive, assuming for the purposes of argument, it's not an 6 7 / ts-su"e" in the tr ial whether anydegeption was successf even though the program said that the President was 8 deceived; arguably so said, that's not an issue President Johnson was able to assess properly among his 12 different sources of information and disregarded bad ones 13 and credited the good ones. The question focuses on 14 General Westmoreland, was he attempting to deceive. Was he 15 knowingly putting out bad numbers out of political 16 motivation? 17 Here you have communications from Rostow to the 18 President; is that right? 19 MR. BURT: That's correct. 20 THE ~OURT: Which attach to them memoranda 21 prepared by the Central Intelligence Agency and I don't see 22 what any of this has to do with the question of whether the 23 information promulgated by General Westmoreland was 24 information that he that believed to be good or bad or whether it was good or bad regardless of what he believed. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _ 791_1020

4 r ' am t I don't see it addresses any of those questions. MR. BURT: Your Honor, may I respond? I offered in evidence the first set of cables from Bunker to Rostow to show that the President was receiving information with respect to General Westmoreland's 6 7 views. Rostow will testify he was receiving it directly. Dr. Rostow will also testify that he believed 8 9 the President other sources that Westmoreland was aware that all these 10 He believed General Westmoreland was 11 aware? MR. BURT: Aware that there were other sources of information with respect to the very same issue going to the President. 15 He believed General Westmoreland was aware? I said to you in our discussion on Friday that if you can show that some intelligence communication to the President or to Rostow was copied to General Westmoreland so that you can demonstrate that General ~Iestmoreland aware at the time of competing perceptions of the was intelligence debate that that would be relevant to General Westmoreland's intentions and that would be admissible because it would have a peripheral but relevant bearing on whether General Westmoreland could conceivably, assuming he was putting out bad numbers, whether he thought that anyone SOUTHERN DISTR1CT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y. _ 79)~1020

5 am t4 r L 1 could be fooled by them because it would show that he knew 3 2 that the numbers he rejected were being sent by the CIA or 3 somebody else. 4 Now, Mr. Rostow's statement that he thinks 5 General Westmoreland was aware of these things don't do it. 6 That ain't good enough. Copies of cables, copies of 7 transmissions, that's fine. But a speculative assertion by 8 Rostow that he thinks General Westmoreland was aware of 9 this, that leaves it all irrelevant to any issue in this 10 case. 11 MR. BURT: We wanted to introduce evidence that 12 General Westmoreland was part of a civilian command chain 13 contained in the CIA which of necessity did inform General 14 Westmoreland that information went up Either they did or didn't. Of 16 necessity doesn't do it. If they did inform them -- if 17 General Westmoreland's command received communications from 18 the CIA those communications are in existence, aren't they? 19 Haven't all these things been gone over at great length? 20 MR. BURT: They would go up separate channels. 21 General Westmoreland was a member of the Mission Council. 22 The Mission Council was the governing body -- the 23 coordinating body of the American effort in vietnam. L...J 24 The CIA station chief was a member of that body. We have evidence that the Mission Council was advised of SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE., NEW YORK. N.Y. _ 79l r- ' r-.....,...

6 r T am t these higher numbers. We have a cable from Ambassador Bunker, who was the head of the Mission Council, to Dr. Rostow, a back channel intended for the President, advising Rostow of a debate and referring to the resolution of the SNIE. have a cable from Mr. Carver in July describing conversations he had with General Davidson, General We 8 9 Westmoreland's J-2 and that cable went to Mr. Helms, if my memory is correct. 10 You know, there may very well be 11 pieces that when put together would make all these 12 admissible. You are starting with a piece at the top of the pyramid and you just want to put it up there with nothing holding it up and it ain't going to stay up if nothing is holding it up. MR. BURT: I understand the problem of 17 proceeding. We had already committed to Dr. Rostow to the point of where we couldn't change it. I have read the three paragraphs 20 that you have pointed out. I don't see how they clarify how they tend to support any issue of controversy in this trial. You have Helms saying, first of all', that he says that the data that were received initially from the GC was bad data that, proved unreliable. Our information was SOUTHERN DISTRICT REPORTERS, u.s. COURTHOUSE FOLEY SQU.n.llE, NEW YORK, N.Y

7 r r ,," am t4 5 r " L 1 improved substantially in the past year. 2 Why are you offering that in evidence in this 3 fashion? 4 MR. BURT: To show that there was a good faith 5 problem, that nothing was hidden, everybody -- 6 Nothing was hidden by whom? 7 MR. BURT: By either MACV or the CIA. The 8 information they are talking about all carne from MACV and 9 there will be testimony on that also. 10 I don't see it. I don't understand 11 what demonstrates that the information came from MACV. 12 MR. BURT: Dr. Rostow will testify because he 13 received the raw data, the intelligence data on which some 14 of these conclusions were based. 15 MR. BOIES: I believe Dr. Rostow will testify 16 the reason I believe it is because he did testify this 17 weekend at his deposition -- that he did not have any 18 conversations with General Westmoreland directly concerning 19 enemy strength or enemy infiltration issues and that he did 20 not talk -- that is he, Dr. Rostow -- did not talk with 21 anyone from MACV concerning enemy strength or enemy 22 infiltration issues. 23 If they have some documents and I don't think 24 they do that one thing. Dr. Rostow is not going to be able to testify from his own personal knowledge about what SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

8 - --- r T am t MACV was doing. I will permit you to corne back when 3 4 you can demonstrate the basis for 978. objection is sustained. At present the 5 MR. BURT: Your Honor, may we have a ten minute 6 recess? Okay. Let's make it 15 minutes and see whether in those 15 minutes you can talk together and make a new assessment of whether it's appropriate to offer this at this time. It should be clear that for Dr. Rostow to testi fy Dr. Rostow was at a level, not ord inar ily, on a daily basis in direct communication with MACV -- maybe Dr. Rostow was never in direct communication with MACV. In order for his testimony and his documents to be relevant it's got to be demonstrated clearly; unmistakably that these documents either came from MACV, not just on somebody's speculation or on a vague sort of appearance or it's got to be demonstrated clearly that those documents went to MACV so that it can be assumed that General Westmoreland was privy to those documents and they may pertain to the question of his intentions. These are a long way from that. 24 MR. BURT: Your Honor, we submit the first two or three cables that we talked about, going directly SOUTHERN DISTR1CT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y ~1020

9 am t.4 r L 1 Those have been received. You don't 2 need to argue that. 7 3 MR. BURT: Thank you, your Honor. 4 We'll take 15 minutes. 5 (Recess) 6 Have the issues been resolved? 7 MR. BURT: I don't believe so, your Honor. L...J 8 There's a question or two and I will, with your permission, 9 wish to offer two other documents which may be able to 10 provide the connection, the necessary foundation, for Mr. 11 Mr. Ginsburgh's Colonel Ginsburgh's memorandum, with your 12 Honor's permission? 13 What are you offering? 14 MR. BURT: I am offer ing 15 MR. BOIES: May have copies of those too, your 16 Honor? 17 MR. BURT: Yes. Exhibit 248 and a copy of 18 Exhibit 769; which is a cable from General Gooding, the 19 head of the delegation, to General Peterson, as CINCPAC, 20 and General Davidsont sent on August 19th. 21 Are these objected to? 22 MR. BOIES: With respect to the Exhibit 769 I 23 certainly would have an objection if it were offered for L.J 24 the truth. May I inquire whether both of these documents SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y _.._--_.,.,...-_.._--_.._ _._

10 am t are offered for the truth, your Honor. MR. BURT: Yes, your Honor. The first of them, 769~ under the business records exception is being offered for the truth of what's contained therein and the fact that 5 it was communicated. And the same with respect to Exhibit 6 248, which is what we colloquially call the viewgraphs. 7 8 MR. BOIES: of those documents. Your Honor we would object to both With respect to the second exhibit, the viewgraph exhibit, these are a collection of pages that I believe Mr. Adams had in his possession prior to the time the broadcast was produced and so might in some sense be relevant to the state of mind issue. However, I believe these purport to be viewgraphs or possible viewgraphs that were either shown or considered to be shown at an NIE conference and I don't believe that there is any evidence that all of the viewgraphs were, in fact, shown. I think there is evidence that at least one, and I think probably more, were shown but certainly not all of them. So we would object to the document at least as constituted at present, if it is admitted for truth. 24 Is this information which you contend, Mr. Burt, that Colonel Hawkins was presenting? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y r

11 --- r am t4 9 1 MR. BURT: Yes, your Honor. On the front page 2 of Exhibit 248 you have some handwriting. I believe that 3 is Mr. Adams' handwriting, your Honor. 4 There are markings on some of the pages as you 5 go through it, again, I believe in Adams' hand. 6 MR. BOIES: For example, on page that bears the 7 number 05512, which is a page that follows a page that 8 bears the designation JX 248, page 10; that it's the 9 followin page. The page that I am thinking of apparently 10 doesn't have an exhibit number on it. It's That 11 one at the top had some handwriting on it that says: Slide 12 shown by Colonel Hawkins' then I think it says 13 Do these papers all come from Adams' 14 files? 15 MR. BOIES: This particular group of papers do, 16 your Honor, yes. 17 You say this particular group. Do 18 you mean Exhibit 248 or do you mean some smaller set? 19 MR. BOIES: I mean Did Adams get all these things from 21 Hawkins at the NIE conference? 22 MR. BOIES: That has not been a subject of 23 testimony. If you give me a moment I'll inquire. 24 Can you inquire? MR. BOIES: Sure. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _

12 --- r-' " T am t (Pause) MR. BURT: Your Honor, may I address the court while Mr. Boies -- (Pa use) 5 Mr. Burt, where did you get this 6 7 exhibit from: what's the source of Exhibit 248? MR. BURT: From CBS, your Honor, the defendant. 8 You got it from CBS? 9 10 document~ MR. BOIES: There's no doubt we produced this as I said, your Honor from Mr. Adams' file in the course of discovery in the litigation. The question I'm trying to figure out is the source of all of these 13 documents. With respect to at least certain of the pages he recalls having seen these documents not only in the course of his research but at the time that they were given. 16 The NIE conference? MR. BOIES: The NIE conference in August of With respect to others; he doesn't have a present recollection for certain whether or not they were 20 given. He believes that probably what happened is that Hawkins had these documents with him and that copies of these documents were made at the time and that's the way he, Mr. Adams, obtained them. 24 If that's true, they are documents which emanated from MACV and were at least to some extent SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

13 am t4 r L _ 1 distributed at the NIE conference and they would be 2 admissible as such Now, it doesn't neces~arily follow from that 4 that they were broadcast on the screen by Hawkins as MACV 5 figures. It is also possible that -- many things are 6 possible -- but one of the things that's possible in the 7 context of the discussions in the case is that they may 8 have been a part of an unofficial analyst to analyst 9 communication from Hawkins to Adams. But in either case, 10 they would be admissible. 11 What now? I'm thinking in terms of the next 12 witness. It would make a significant difference whether L,...J 13 these had been put up on the screen at the NIE conference 14 by Hawkins as MACV figures. That would be very different 15 from the possibility that Hawkins might have shown them to 16 Adams, saying, in spite of the figures that we're showing 17 on the screen this is what I really believe is the truth. 18 And if we are receiving these now with respect 19 to testimony by Rostow who was not at the NIE conference; 20 that distinction will be critical. What is the basis on 21 which you offer these as figures that Rostow can testify 22 about? I have no doubt they would be receivable at some 23 point for a variety of purposes in the case. It's not a 24 question of admitting them into evidence. They will certainly be admitted into evidence if offered. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _ ' ' ,-,.--._---_.----' ,-' '1"------,-,

14 am t MR. BOIES: This is one document we have in fact stipulated would be put in evidence. 3 I am going a little further with it. 4 Your offering it now suggests you want want to use it in 5 connection with Dr. Rostow's testimony. It would make all the difference in the world whether these were positions openly announced by MAC V as their position at the NIE conference or whether Adams had gotten it more or less 9 under the table from Hawkins at the MACV conference. There were in conversations in the broadcast in which both sides said that they had side discussions with one another. 12 MR. BURT: Your Honor, I thought I had just heard Mr. Boies say that the defense would acknowledge that these documents were handed out at the conference. That wasn't what I heard. Is that what you said? MR. BOIES: No, your Honor. What I said was it was Mr. Adams' recollection that he obtained them from Mr. Hawkins, Colonel Hawkins, at the conference, not that these were generally handed out or shown', although some of them were. Look. Maybe I'm making things more 23 complicated than they are. They may be received in 24 evidence. That doesn't mean they can be used for any purpose in the trial. I would say that right now, on the SOUTHERN DISTRICT REPORTERS, U,S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y ~1020 '.. ---'r --'

15 am t4 r L 1 basis of the representation made about them, that they are 2 received in evidence both on CBS' state of mind. No objection to that, everybody agrees on that? 4 MR. BOIES: Yes, your Honor. 5 MR. BURT: Yes, your Honor. 6 And as documents received by Adams 7 from Hawkins at NIE conference. Okay? 8 MR. BURT: Yes, your Honor. 9 MR. BOIES: We would not object to that either~ 10 your Honor. 11 MR. BURT: Your Honor, may I call the court's 12 attention at this time again to the memorandum from Colonel 13 Ginsburgh identified as Exhibit 976 and ask the court to 14 compare the new numbers that Colonel Ginsburgh is listing 15 with the numbers listed on the pages 10 and 11 and 9 of the 16 viewgraph. 17 The number for the total armed forces in the 18 viewgraph at page ten is 224,000. The Ginsburgh memorandum 19 Wait. Why don't you use the 20 document identifier numbers for the moment. I see those. 21 MR. BURT: I'm using now 22 I'm looking at a page 10 that 23 doesn't contain the number you just said. I must be 24 looking at the wrong page. I am looking at page 11 on your document identifier numberi Are we talking about SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y r _

16 am t the same page? 2 MR. BURT: No, your Honor. I'm talking about 3 OSS S TilE COURT: MR. BURT: OSS12? Yes, your Honor. 6 (Continued on next page) ls \ 24 SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y r-' " r

17 jh t Okay. I have seen this before. 2 MR. BURT: The 226,000 total -- and we can go 3 through the categories if you wish -- is the same total 4 armed forces OB that General Ginsburgh's memorandum 5 contains. 6 Yes? 7 MR. BURT: And the grand total for self-defense, 8 secret self-defense, political and armed forces OB is 9 431, TilE COURT: Which document are you quoting from 11 now? 12 MR. BURT: I am quoting from tab A of Colonel 13 Ginsburgh's document. 14 Right. 15 MR. BOIES: Where is the 431,000 in the other 16 document? 17 MR. BURT: You take page 10 of the Hawkins 18 viewgraph, with the mean of 298, MR. BOIES: You have 298, MR. BURT: Right, and the self-defense and 21 secret self-defense. The numbers are very, very close, on 22 page 10, your Honor, for of the viewgraph. I realize r L 23 this is a bit cumbersome. 24 MR. BOIES: of the viewgraph has a total of 183,100. Is that the number you're taking? SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y. - 79J~1020 "--"

18 jh t MR. BURT: No. It's broken out. The easiest way to do this, your Honor, if you wish, is to take each category and add them up from the viewgraphs and then compare them to the categories and the totals laid out in Colonel Ginsburgh's memorandum, since I am trying to establish where Colonel Ginsburgh obtained the numbers, and there is no memo that I know from Colonel Ginsburgh saying "I got these from MACV." What he says is these are new figures, still subject to some hard interagency negotiating. 10 You're saying that if you added up certain numbers on these viewgraphs you would get to the number 431,000? MR. BURT: strength forces plus MR. BURT: Yes, your Honor. The numbers are 298,000 regular No, your Honor MR. BOIES: It's not going to add, but let's go through the exercise. MR. BURT: The only way to do it is to go through category by category. 21 \'Ie were just talking a moment ago about the fact that it hasn't yet been established that these viewgraphs were actually put out by MACV at the NIE conference. You tell me to look at page and to draw some SOUTHERN DISTRICT REPORTERS. U,S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ ~----~ ""--"-1"'--'"--' "-'-"----- "----r---"

19 jh t r L 1 figures from there. Is it conceded that was 2 broadcast by MACV at the conference or is it possible we 3 don't have any indication of how Adams got that page? If 4 he concedes that page was something that was put up 5 on the screen, okay, that's one thing. 6 MR. BURT: Your Honor, on page 05512, in Adams' 7 writing, it says "Slides shown by Colonel Hawkins." 8 Right. But it doesn't say that on 9 the previous page. 10 MR. BURT: No, but the total for the armed 11 forces on the revised estimate of is exactly the same 12 total armed forces number listed as the new estimate in the 13 Ginsburgh memorandum. 14 Also, the political number, which had been 15 carried prior to this at 39, you see the current on 16 the left-hand page of tab A of the Ginsburgh memorandum is now 85,000, where you have an accepted possible range 18 between 83,000 and 92,000 in the viewgraph. 19 MR. BOIES: Your Honor, there are a whole series 20 of numbers, obviously, in the Ginsbu~gh annex A or tab B, 21 whichever we call it. The 226,000 figure does appear on 22 page of the viewgraph. However, I think if you look 23 at how that total is arrived at, the components of that L.J 24 total are at least different. I would also note that the total in the SOUTHERN D1STRICT REPORTERS. U.s. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y , , T

20 jh t viewgraph is part of a range and not a single number, as it 2 is in Mr. Ginsburgh's report. 3 But if the court will look at the number for 4 administrative services units that is there 5 Which document? 6 MR. BOIES: On Mr. Ginsburgh's document. 7 Yes. B MR. BOIES: That appears to me to be 40,000. I 9 can barely read it. 10 Mr. Burt, do you agree? 11 40, MR. BURT: That's 40, MR. BOIES: Administrative services is shown to 14 be either 24,800 or a range of 17,000 to 35,000 in the 15 viewgraph charts. 16 I am not sure that makes any difference, but I 17 don't think it's possible to take any series of numbers 18 from one document and add them up to the same total in the 19 other document. Again, I am not sure that ought to be 20 dispositive. But I don't see what the connection is 21 between the two documents. 22 Mr. Burt, I think the point Mr. 23 Boies is making is that if your point is that by taking the 24 Hawkins viewgraph from the NIE conference and taking the numbers that MACV was putting out at that conference you SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y ~1020 ~ r-'--- -' '

21 ------'-'r-'------' "-' 'T jh t will then find that exactly the same numbers are shown on 2 the Ginsburgh chart, so that Ginsburgh must have gotten the 3 numbers from this, I don't know whether it would 4 necessarily follow, if it were right. But it's not right, 5 the numbers are different. So it certainly doesn't follow. 6 MR. BURT: The numbers were subject, as Colonel 7 Ginsburgh himself says, to some hard interagency 8 negotiating. 9 Yes, but the administrative services 10 ranges from 17 to 35 and Ginsburgh has got 40. He 11 certainly didn't get 40 by some kind of negotiation between and There are several instances in which these 14 numbers are simply not the same numbers, they are different 15 numbers. I don't know where Ginsburgh got them, but it 16 would be impossible to draw the conclusion that Ginsburgh 17 must have gotten them from here because of their similarity 18 for the-reason that they just aren't that similar. 19 Why don't you forget for the moment about the 20 Ginsburgh memorandum, because I think we are not going to 21 get there on the basis that we have. 22 But if the point of the 248 package is -- I 23 don't think there is any dispute that this page was a.- 24 MACV position in the NIE conference. If that's what you want to use at this point, I don't think there is any SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

22 jh t debate about that. 2 Is that correct, Mr. Boies? 3 MR. BOIES: That is correct, your Honor. That 4 was, as I understand it, shown at the conference and has 5 Mr. Adams' notation on that page. 6 This is an after the fact notation. 7 It says "Early August 1967." It must have been written 8 sometime later. But in any case, it's not in dispute, 9 everybody agrees this was shown. 10 MR. BOIES: That is right. 11 You're welcome to use that page for virtually all purposes in this trial. 13 MR. BURT: Thank you, your Honor. Your Honor, 14 may I also 15 Just one second. Let me just note 16 that. 17 All right. You wanted to talk about this cable? 18 MR. BURT: Yes, your Honor. This is the August cable from General Godding, the head of the delegation, 20 to Generals Peterson and Davidson. 21 Whose list is this on, plaintiff's 22 or defendants' list? 23 MR. BOIES: Plaintiff's list, your Honor. 24 What about it? MR. BURT: General Godding states that he SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. - 79J r r ----

23 jh t briefed the chairman of the Joint Chiefs of Staff, who 2 concurred in the MACV approach that the SO and the SSO not 3 be included in the overall figure. 4 Where does it say that? 5 MR. BURT: The first sentence, your Honor. 6 I am sorry. Who is Peterson? 7 MR. BURT: He is the J-2, the intelligence chief 8 of 2INCPAC, and he will testify here. 9 Is that objected to? 10 MR. BOIES: Yes, your Honor, if it is offered 11 for the truth. I think this is a document that doesn't 12 make a great deal of difference one way or the other, and I 13 don't think it would be seriously prejudicial to put it in, 14 but I do think that a proper evidentiary foundation for the 15 document has not been laid. 16 MR. BURT: Your Honor, again, we would rely on 17 the business records exception with respect to the truth of 18 it, and address your attention to the second paragraph. 19 I don't know about the truth of it. 20 But this is a cable from Godding, who is part of the MACV 21 command. 22 MR. BURT: The head of the delegation and part I L 23 of the MACV command. 24 It seems to me that if somebody in Godding's position was sending this cable through official SOUTHERN DISTRICT REPORTERS U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ r r -

24 jh t channels -- are you questioning its authenticity? You say 2 it hasn't been authenticated. Of course, it hasn't been 3 4 authenticated. ironed out. I thought we had gotten all those things 5 MR. BOIES: Your Honor, it has not been 6 authenticated. General Godding, as the court will see when 7 8 the depositions are put in or when he comes to testify, if he does, has said a variety of different things about the 9 10 events of August of view of that -- I think that particularly in 11 I assume somebody just didn't open his wallet to pull this out. archive of official documents? Wasn't it found in some MR. BOIES: It certainly was, your Honor. Isn't that enough to qualify it? I 16 mean, we could spend hours and hours having authenticating 17 witnesses. But if you both know that this came from a repository of official cables and communications I would think that we don't have a dispute about authenticity. 20 MR. BOIES: Your Honor, in terms of authenticity, 21 I am not talking about whether this was written at the time 22 or not. I have in mind whether it was written in the regular course of business or whether it was a memorandum for the record or a cover your ass type of memo written by General Godding in connection with what he was doing and in SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y ~ r , T -_...

25 r , T jh t connection with a cable that the court will recall that I 2 showed to the jury from General Davidson to General Godding 3 at or about this very same date. 4 So I think that this is a situation in which 5 whatever the normal presumption would be, I would be 6 reluctant to accede to the admissibility of this document 7 on the basis of the truth is received in evidence. 9 (Exhibit 769 for identification was received in 10 evidence) 11 MR. BURT: Your Honor, may I address this just 12 one more time? 13 You want me to change my mind? 14 MR. BURT: No, your Honor, I do not. But I do 15 want you to look at the second paragraph of this. 16 "The present schedule"? 17 MR. BURT: "The present schedule of events 18 indicates that the NIE will not be put to bed until 1 19 September. If the figure 420,000 has leaked in Saigon the 20 principals in Washington could address the NIE figures 21 sooner, if energized by the Saigon community." 22 That again is within 11,000 of the figure that r -, 23 Ginsburgh uses, and if, looking at the first sentence of 24 General Godding's cable, you take what the broadcast said the total was, 300,000, and remove the SD and SSD as they SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

26 jh t I 1 were then carried, you come down to a figure more like 2 200,000, 220, If it can't work, it can't work, and we will 4 have testimony to that effect. 5 All right. 6 MR. BURT: Your Honor, we have only -- 7 I don't know what the jury is going 8 to say when I tell them that my revised estimate of the 9 duration of trial has changed from four months to twelve 10 years. 11 MR. BURT: Your Honor, that's not going to 12 happen. We will sit down with defendants' counsel and try 13 a~d iron this out. 14 Let's call the jury, please. 15 MR. BURT: Your Honor, there are another few 16 docu:nents. 17 MR. BOIES: Are you going to use those documents 18 right away? 19 MR. BURT: Not before lunch, no. 20 MR. BOIES: If we don't need them before lunch MR. BURT: All right. 22 Call the jury, please. 23 MR. BOIES: Your Honor, could we just approach 24 the bench for a moment? (At the bench) SOUTHERN DISTRICT REPORTERS, U,S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _ r-'---, ,

27 jh t (Discussion off the record) 2 (In open court: jury present) 3 MR. BURT: Your Honor, we would like to call Dr. 4 Walt Whitman Rostow to the stand. 5 Members of the jury, while we are 6 waiting for him to come from the witness room, I apologize 7 to you for the long delay. I am sure it will not be the 8 last time it happens, but I hope it won't be as long and 9 hope it will not be frequently. 10 I hope very much that questions whether 11 documents can be received in evidence will be worked out 12 and discussed in advance rather than making you wait in the 1-.,...-J 13 jury room. All I can say is I hope that will happen. I am 14 sure there will be cases in which your patience will be 15 somewhat taxed. I thank you for your patience. 15 All right. We will now proceed. We will take 17 just a second because Mr. Burt wanted to advise the witness 18 of some of the court's rulings. 19 You may proceed to do that. 20 This is in order that the witness will be aware 21 of what subjects I have ruled are appropriately part of the 22 evidence in the case and which are not matters for 23 discussion in this case, so that he will limit his L -' 24 testimony to the subjects that are in controversy. WALT WHITI1AN ROSTOW, SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y r-' ' r-----

28 jh t 5 Rostow - direct called as a witness by the plaintiff, having been 2 duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. BURT: 5 Q. Dr. Rostow, would you please state your present 6 address and your age for the record, please? 7 A. My address is One Wildwind Point, Austin, Texas , and I am 68 years old. 9 Q. Dr. Rostow, could you give me, give us, a brief 10 description of your educational background? 11 A. I went to grammar school first at Irvington, New 12 Jersey. We moved to New Haven when I was moving into the 13 seventh grade. I finished grammar school at Worthington 14 Hooker School in New Haven and then went on to New Haven 15 High School. I did my undergraduate work at Yale, did two 16 years at Oxford, came back and did my doctorate at Yale. 17 Beyond that that became a professional and not 18 an educational career. 19 Q. Did there corne a time when you wrote any books? 20 A. Yes, sir. I have written about twenty-four 21 books, I calculated last night. 22 Q. And can you give me an idea of what subjects 23 they were on? 24 A. Yes. On a rough calculus last night, there are fourteen on the subject of economics and economic history SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.V r T

29 jh t5 r Rostow - direct and ten on the subject of, broadly, foreign policy. 2 Q. And what is your current position, Dr. Rostow? 3 A. I am a professor of political economy attached 4 to the economics and history departments of the University 5 of Texas at Austin. Q. A. Q. 9 II? 10 A. Ye s, sir. 11 Q. And what was the type of your service in World r I 12 Ivar II? A. 13 I worked in intelligence, in OSS, and then in a 14 combination of intelligence and air target planning in 15 London, based for a good deal of that time in the British 16 Air Ministry in Monck Street. 17 Q. Did you have any familiarity with issues of order of battle in World War II? ~ '~- '. - A'~...,. Y e"'"s- ' -~'S'"- l "-r ~-.""'- ----' Q. Can you describe what issues they were? 21 A. In I lashington in the first year of OSS we became 22 acquainted with order of battle calculations in the studies I' I 23 done in the research and analysis branch of OSS with 24 respect to a possible German invasion of Northwest Africa, in relation to a study done of the prospects on the German- SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y

30 jh t5 ( 1 Rostow - direct 27B Soviet front in the spring of 1942, and in relation to a 2 3 possible Japanese invasion of Australia. involved analyses of order of battle. All of those 4 5 In the British Air Ministry, the work in London, I was intimately involved in the order of battle analyses 6 of the German Air Force. And then in the work we did in 7 B preparation for D-day we had to make rather fine-grained analyses, based on the work of others, of course, of the probable German order of battle, air and ground. Q. While you served in World War II were you ever invo),y,ed'" fnany intelligence disputes? A. I was ~, fifvc>1:vea ana o!5ser'ved a good many.' Q. Were any of those disputes ever heated or bitter disputes? A. Almost without exception,..--'----~ CO'll" Y0l;l' descr ibe for me they were heated..--1 otle J2!: those disrlltes;? 17 A. One of them was one in which I was called upon IB to form an independent judgment. I was not a party to it, but I intimately observed it. I was asked by the scientific adviser of the British Air Ministry, Sir George Thompson, to form an independent assessment of a debate between scientific intelligence officers and British men working on the -- on rockets, and the question was would the warhead of the V-2, that is, the first rocket used operationally, be one ton or ten tons. SOUTHERN D1STRICT REPORTERS. U.S, COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y

31 jh t 5 Rostow - direct I interviewed the two parties to the debate and 2 then brought them into a room for their own cross- 3 quest~oning, and it was -- they all had the same 4 information. 5 They took very different views and they were 6 engaged so passionately in this argument that I feared the 7 table was not wide enough to avoid them coming to blows. 8 I don't want to burden the court with any more 9 anecdote, but I have observed a good many other such 10 debates, all of which in the end involved phrases that Lord 11 Tedder used in writing his memoirs and discussing a debate 12 in which he was involved as Deputy Commander of the Supreme 13 Headquarters under General Eisenhower. 14 He had ta ken one v iew of how ai r power should be 15 used, but there were many in his own headquarters who 16 passionately argued the other way, and in the end and 17 here is a man who after the war received every honor a 18 distinguished airman could, was chief of the air staff, 19 knighted, a member of the House of Lords -- but thinking 20 back late in life of this debate he wrote that those who 21 opposed him exhibited intrigue, ignorance and 22 misunderstanding. 23 Now, I was not involved directly in the 24 headquarters in SHAEF, but I knew intimately the two sides of this argument, and, indeed, have laid them out I think SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y ~ " --- "r-' ' '-' r

32 jh t5 Rostow - direct dispassionately in a recent book. I think that his words and his emotions as he recalled this late in life, a battle between men who I can vouch for were all in total good faith on both sides, was typical. Q. Dr. Rostow, can you br iefly descr ibe the jobs that you held after leaving the government? Before you do that, can you describe for me what 8 OSS is? And would you speak up a bit. Can you move the microphone a little closer? A. Yes. I am sorry. Can I be heard now? Any difficulty? OSS was the Office of Strategic Services. was formed in the early autumn or late summer of 1941, It 14 under General William Donovan. It was first called the Coordinator of Information and then became the Office of Strategic Services. Q. Did it have a successor? A. Its successor was the CIA. Q. Thank you, Dr. Rostow. NOW, could you briefly describe for us what positions you held after you left the government, left military service? A. My first position was as assistant chief of the German-Austrian economic section in the State Department. I then went to teach as the Harmsworth Professor at Oxford for a year. I had been appointed while in the SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y , _-_._ _ r - -

33 jh t5 Rostow - direct 2Bl r ' 1 State Department to a permanent post as economic historian 2 at Harvard, and they graciously gave me a year to be the 3 Harmsworth Professor. But my wife and I decided that the 4 tasks of European reconstruction were so urgent that I gave 5 up the post at Harvard and spent several years helping 6 Gunnar Myrdal set up the economic commission for Europe in 7. Geneva, which was a United Nations East-West operation. 8 Then my wife and I taught at Cambr idge, where I 9 was the Pitt Professor. We then went and both joined the 10 faculty of MIT, where we remained until January There I helped set up with an old friend and colleague, Max l 12 Millikan, the Center for International Studies, and I did 13 some work within that while conducting my academic tasks as 14 the professor of economic history. 15 Q. Did there come a time when you went to work in 16 the White House? 17 A. Yes, sir. 18 Q. When was that? 19 A. That was -- I was sworn in on January 21, 1961, 20 the day after Mr. Kennedy's inaugural. 21 Q. And how long did you work in the White House? 22 A. I worked down to December, when I went to the 23 State Department to be planner and counsel, and then came._ l...j 24 back to the White House as National Security Adviser on Ain ill, SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y _ r-'

34 jh t5 ( Rostow - direct Q. And how long did you remain National Security 2 Adviser and to whom did you advise? 3 A. I was the special assistant in that post to 4 Pres ident Lyndon Johnson. 5 Q. Did you have a staff? 6 A. Yes, I had the NSC staff under me, which -- 7 Q. Would you tell us, please, what the NSC staff is? 8 A. The National Security Council staff. 9 Q. And how long were you the National Security 10 Adviser to the President? 11 A. Until the moment that Mr. Nixon was sworn in. 12 Q. Did you have an office in the White House? 13 A. Yes, sir. 14 Q. How far Mr. Burt, may I suggest that your 16 questions will be better heard by the jurors if you stand 17 quite a bit further back. 18 MR. BURT: Sure. 19 I think some of the jurors in the 20 back there are not hearing your questions. 21 Q. Can you hear me, Dr. Rostow? 22 A. I can hear you, sir. 23 Q. If you don't hear me, Dr. Rostow, let me know. 24 I was about to ask you how far your office was from the Oval Office, if you can recall. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y r ' ~----'-' ~r--~- - i I

35 jh t5 r., 'I f'i, '1~ ') l i~ ~ Rostow - direct 283 A. Maximum 30 seconds. Q. Is that a walk or a run? A. A bit of both, sir. Q. Did you see President Johnson from time to time? A. Yes, sir. Q. Can you recall how frequently, on average, you saw President Johnson? A. When he was in Washington, several times a day. Q. Can you tell me what your duties were as the NSC or the National Security Adviser to President Johnson? Describe them in general.., 12 " " ~ -l 24 A. I shall describe them briefly. If anyone is interested in a more elaborate account, it's in a book of mine called The Diffusion of Power. The first function of a National Security Adviser in both President Kennedy's and President Johnson's time, because the job was virtually identical, was to assure the President of the very wide-ranging flow of intelligence information about national security affairs, both foreign affairs and military. The second function was one in which the whole staff had to follow closely the issues that were arising for decision for the President. These issues might involve the State Department, the Pentagon. More usually, they involved several departments, and the staff had to follow SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y , ---' 'r --, '-'- -

36 jh t5 Rostow - direct them intimately enough so that when the issue was laid before the President they could give the President an account of the debate within the bureaucracy, the options that had emerged, the reasons for those options, the 5 options that had been dropped. Then they had to offer to 6 7 the President any options that they, that is to say, we on the NSC staff, could think of that the President might wish 8 to consider. And finally, the National Security Adviser would offer his own net judgment. Q. Dr. Rostow, how large was the National Security Council staff when you were National Security Adviser? A. It was cut down early in President Kennedy's time from the size it was in President Eisenhower's to about a dozen professionals, and it was maintained at that modest level in President Johnson's time. expanded in President Nixon's. It was radically Q. Did you have a security clearance? A. Yes, sir. Q. What was the level of that clearance? Was it quite high, very low? A. There are no -- there were no aspects of the national security system for which at that time I was not cleared. At least, that's my understanding. It was a high clearance. Q. Do you know whether there was anything, with SOUTHERN DISTRICT REPORTERS, u.s. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y ~I r

37 jh t 5 Rostow - direct respect to national security affairs, foreign national 2 security affairs, that you were not cleared for? 3 A. No, sir. 4 Q. Dr. Rostow, do you recall whether there was a 5 meeting at which President Johnson, General Westmoreland 6 and others might have been present in the spring of 1967? 7 A. Yes, sir. 8 Q. Can you tell me what you recall about that 9 meeting, if anything? 10 A. Yes, sir. The issue before that meeting Q. Let me interrupt you. Can you recall who was 12 present? 13 A. I believe that it was a meeting in which only 14 the senior officers concerned with national security were 15 present; that i~ to say, Secretary of State, Secretary of 16 Defense, the Chairman of the Joint Chiefs of Staff, perhaps 17 the vice-president, but I am not sure, I was pxesent. 18 There may have been others, but I don' t recall~~ them. 19 Q. Would that have been, the names of these people, 20 Secretary Rusk at State, Secretary McNamara at Defense? 21 A. Mr. Helms of the CIA was almost certainly also 22 present. 23 Q. And was that meeting you're talking about now in 24 April or in some other month? A. It was I believe late in April. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y ~~ ~ ~~~-- ~~~r --~~---~--~ ~----- T--~~-

38 jh t5 i Rostow - direct Did you say that General 2 Westmoreland was present at the meeting? 3 THE WITNESS: Yes, General Westmoreland was 4 present at the meeting. 5 Where was this meeting? 6 THE IVITNESS: I believe it was held in the 7 cabinet room. What I remember vividly about it, your Honor, 8 is that there was a map and that the group was not as large 9 as it would be at a normal National Security Council 10 meeting. 11 Q. Dr. Rostow, do you recall whether a man named 12 John T. McNaughton was present at this meeting? 13 A. I don't recall him at that meeting. 14 Q. Dr. Rostow, do you recall what General 15 Westmoreland talked about, if he did talk about anything at 16 that meeting? 17 A. AS I recall the meeting. it was focused rather IB sharply on this question: Should the forces, U.S. forces, allocated to Southeast Asia, and especially Vietnam, be ~Ecreased by something of the order of an extra 200, above those then envisaged. This led to a discussion of what the prospects of the war would be in terms of its length if those troops were allocated and if those troops were not allocated to General Westmoreland's command. SOUTHERN DISTRICT REPORTERS, u.s. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y "r-' '-' T I

39 --- r-' jh t5 r--' I Rostow - direct 287 He was asked to make his judgment as to the 2 prospects for the war if he had those troops and if he did 3 not. 4 As I recall, he sa.id that we are now making slow 5 progress. He could not guarantee what the outcome would be, 6 but he doubted that a decision of Hanoi to desist from its 7. aggressive actions against the south would require 8 something like five years, perhaps, if the present level of 9 forces was sustained, but a decision might be forced in 10 about two years if he were allocated the extra 200,000. I 11 felt that he rather reluctantly gave a time to this. But 12 that is my memory of what he laid before his colleagues in 13 Washington. 14 (Continued on next page) SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

40 --- r T" am t6 Rostow - direct 288 r, 1 BY MR. BURT: 2 Q. When you say "He rather reluctantly gave time to 3 this" who are you referring to, sir? -- 5 I think perhaps by ;;~-r-e~t~a-r-y~m~c~n~a-m~a~r~a~t--o~give precise or 4 A. I mean that General Westmoreland, he was pressed reasonably concrete time dimension under the assumption he...., had more troops and didn't._ have more troops. My memory was B he gave those two estimates at that time. 9 Q. Dr. Rostow, I would like to read to you from a from a transcript of the CBS broadcast the uncounted enemy, 11 which is Exhibit 1, on page 3 of the transcript that I have 12 in my hand 13 MR. BURT: Your Honor, may I distribute copies 14 of this exhibit, the transcript, to the jury? 15 Yes. 16 MR. BURT: Thank you, your Honor. 17 Q. On page 3 I'm reading to you what Mr. Wallace IB says in narration. 19 MR. BOIES: Your Honor, can we approach the 20 bench? 21 Yes. Bring a copy up. 22 ~ 23 MR. BOIES: Your Honor, I have been I think 24 patient with respect to this examination which I don't think relates to the subject matter of this litigation up SOUTHERN DISTR1CT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y