16 called as a witness by the defendant, having been. A. I live at 580 Mountain Home Road, Woodside,

Transcription

1 AFTERNOON SESSION : p.m. (In open court) THE COURT: All right? MR. BOIES: Yes, your Honor. THE COURT: Call the jury, please. (Jury present) THE COURT: Yes. MR. BOIES: Your Honor, defendants call Paul N. McCloskey, Jr. to the stand. with the court's permission, the direct examination will be conducted by Mr. Michael Doyen. PAUL N. MC CLOSKEY, Jr., called as a witness by the defendant, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. DOYEN: THE COURT: Counsel just a second, please. (Discussion off the record) THE COURT: Proceed. Q. Mr. McCloskey, could you state your current residence and occupation. A. I live at 0 Mountain Home Road, Woodside, SOUTHERN DISTRICT REPORTERS. U.s. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. -.

2 b McCloskey - direct 0 California. I am a partner in the law firm of Brobeck Leger & Harrison. Q. It might be easier for the reporter if you move the microphone up a little. Mr. McCloskey, have you ever served in the United States military? A. Yes, I have. Q. Could you state briefly the dates of your service? A. I enlisted in the Navy in June of, just before the end of the war; served months as an enlisted man. Came out of the Navy in January, enlisted in the Marine Corps' platoon leader program in ; was commissioned as second lieutenant on the of June 0. Was called to active duty after the Korean war started; served months in the Marine Corps between September 0 and June of. Q. Did you see combat while you were in Korea? A. Yes. I was a rifle platoon leader in the th Marine Regiment. Q. Did you receive any decorations for your service in Korea? A. Our unit received a number of Presidential unit citations during that period from the United States Government and the Korean Government. I was awarded the purple Heart, Navy Cross, and SOUTHERN DISTRICT REPO RT ERS. U.S. COURTHOUSE FO LEY SQUARE. N EW YORK. N.Y. _ - 0

3 b McCloskey - direct Silver Star. Q. Did you have any further service in the military after the Korean war? A. Yes. I returned to law school in and between and 0 remained in the active Marine Corps Reserve. I commanded a rifle company for eight years. We spent two weeks every summer and one weekend a month or one night a week in training during that period. In 0 I was promoted to major. There were no billets in the unit so I started attending the Marine Corps schools each summer. I attended the -- in the early '0s we started to study counterinsurgency warfare and I went to those schools. In, I commanded the Marine Corps Reserve counterinsurgency school at Camp Pendleton. I served in a series of exercises where Marine units were preparing to fight in Vietnam. Q. Did you receive any citations in connection with those exercises? A. Yes. I was selected to serve in the position of the ambassador in an operation called Silver Lance, which was a program conceived by Lieutenant General Krulak for fighting in Vietnam, the peculiar problems of counterinsurgency, and I received a letter of commendation for that service in. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. - -

4 b McCloskey - direct I asked to be assigned duty in Vietnam after the first marine units were sent there in. I was then a lieutenant colonel. I was turned down. But I then trained again in and was asked by the government to go to Vietnam as a provincial representative, which was the civilian side of the pacification effort in Vietnam. Q. Have you now retired from the military? A. Yes. I retired in the early '0s as a full colon~l. Q. Let me come back to your military service in a moment. I think you mentioned attending law school. Could you state your full educational background. A. Well, I went to a military academy when I was young, graduated from South Pasadena High School in ; attended Stanford University and graduated from Stanford Law School in. Q. Mr. McCloskey, have you written any books? A. Yes. Q. Could you state briefly what those books were? A. I wrote a text on the U.S. Constitution for eighth grade students in 0, which was adopted here in the New York school system. I wrote a book on legal ethics in -- or edited a book called Guides to Professional Conduct for the New California practitioner, and in I S wrote a book about truth in government called Truth and untru ~ SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. - -

5 b McCloskey - direct which was published by Simon & Schuster here in New York. Q. Have you ever taught any university level courses? A. Yes. I teach presently political science at Santa Clara University. I have taught the same course at Stanford University. I taught legal ethics at both the Stanford and Santa Clara law schools between ' and, and I have taught -- I have lectured on truth in government at the National War College at Carlisle the Army College at Carlisle, pennsylvania and the National College at Washington, D.C., in the '0s. Q. Mr. McCloskey, have you ever been a member of the United States Congress? A. Yes, I was elected to the Congress in December and I served eight terms, left the Congress at the end of. Q. I'm not sure whether you said just then, but what party did you run under? A. I am Republican. Q. I would like to return for a moment to your military experience. You touched on this a little bit before, but did you say -- let me strike that. Have you ever been involved in training for guerrilla warfare in South Vietnam? A. Yes. I spent a number of years trying to SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. -

6 b McCloskey - direct prepare to fight what we called counterinsurgency warfare, the concept of trying to separate the guerrilla from the native habitat, the village. This was taught by Mao Tse Tsung and Vo Gien Giap -- the Chinese Communist leader, and Vo Gien Giap was the great military leader that had defeated the French at Dien Bien phu. The Marine Corps in the early sixties concentrated on counterinsurgency warfare and that was my specialty. Q. Did your involvement in training for guerrilla warfare in South Vietnam involve training in intelligence? A. Yes. The difference between counterinsurgency warfare and the ordinary wars that the united States had fought in was the difficulty in finding out who the enemy is. He's right with you; he's living in a village or the hamlet or the countryside, and the problem in counterinsurgency is to interrogate people, to obtain the evidence and find out who the members of the enemy order of battle are. training. That's a primary part of counterinsurgency I trained in that from either the late Fifties or early sixties until the first marines were committed to Vietnam in. Q. Have you ever been in Vietnam? A. Yes. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ -

7 b McCloskey - direct Q. Could you explain very briefly the circumstances of your visits? A. well, I went to Vietnam five times. On all of these they were fact-finding missions as a member of Congress. I was elected December, excuse me, I was sworn into the Congress on December,. The Congress recessed two days later and a congressman named Al Bell from Los Angeles, California invited me to go on a fact-finding trip to Vietnam. We spent roughly eleven days in Vietnam in late, January. I went a second time, again with a group of members of Congress, in 0, in the spring. The third time was in the spring of, in April, again with other congressmen and a group of intelligence analysts. In, after we had -- our troops were out of Vietnam, I was asked by President Ford to be in a delegation that went to Vietnam to appraise the status of the South Vietnamese as they were then facing the North and the Vietcong, and in December I was the Republican the ranking Republican member on a delegation that went to Hanoi to negotiate for the return of our MIAs and the information on the people that had been killed. Q. I would like to focus for a moment on your first trip to Vietnam. I think you said that occurred in late. Could you state as precisely as you can when that SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. -.

8 b McCloskey - direct was? A. My recollection we arrived in Vietnam on December, stayed there till roughly January or. Q. Did you visit MACV headquarters during your visit? A. Yes, we did. Q. Did you ever meet General Westmoreland or any members of his command? A. I met General Westmoreland just briefly. ~e were briefed very thoroughly by his command people at MACV headquarters, a place called we called it Pentagon East I think that was the common word -- at Ton Son Nhut Airport, out we were briefed there very thoroughly the first day tilat we arrived or the second. Q. ~;hile you were at MACV headquarters, did you see any official statement of MACV's statement or policy for briefing congressmen? THE COURT: When you see counsel rise to object, please stop so I have a chance to rule on the objection before you answer. MR. DORSEN: I think it is probably the next question. THE COURT: You asked him did you see, what was it? S MR. DOYEN: Any official statement of MACV's SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ -

9 b McCloskey - direct policy for briefing congressmen. THE COURT: Proceed. A. The answer is yes. Q. Could you explain what it is that you saw? MR. DORSEN: Objection, your Honor. MR. DOYEN: Let me sharpen that a little bit. Q. Without explaining what MACV's policies were, if any, that you had seen, could you explain what you were referring to when you say you saw such a statement? THE COURT: Don't tell the content of the document at all, but only how it was designated, what kind of caption or description it bore, not what it said. A. Your Honor, I remember it very clearly. It was a book, a looseleaf notebook, / x. It was entitled Handling Congressional Delegations, Handling CODELS. They took the first two letters, Congressional Delegation. It was a standard operating procedure manual on handling congressional delegations. Q. And where were you when you saw this binder? A. I was in what I would call the protocol officer or control officer room at MACV headquarters. It was just before the briefing. We were waiting to go in to be briefed. There were a number of escort officers in the room along with Congressmen Bell and myself, and a former S CIA agent that was acting as my staff at the time. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y. -

10 b McCloskey - direct Q. Did the binder or document that you saw bear any designation as to what agency or author had published it? A. It was an official THE COURT: I'm having a little trouble hearing you, Mr. Doyen. Can you keep your voice a little louder. The witness as well. If you would speak a little louder, please. THE IHTNESS: It was just a standard operating procedure manuel. There must have been thirty manuals in this bookcase. This one said Standard Operating Procedure, words to that effect, on Handling Congressional Delegations. It was a MACV document. Q. Can you state what the policy was that was stated in that document? A. Yes. bench on this? MR. DORSEN: THE COURT: I object. Can we approach the Come up. (At the sidebar.) MR. DORSEN: It is my understanding that what S happened, according to witness, is that he took a book off a shelf, and it was dusty, and he read in it, in effect, give -- I forget the exact words, but how to handle congressional delegations in terms of giving them good news, in quotes. SOUTHER N DISTRICT REPORTERS, U,S. COURTHOUS E FOLEY SQUAR E. NEW YORK. N.Y, - -

11 b McCloskey - direct I think this is irrelevant to this case. The defendants were given opportunity to deal with the issue of substantial truth. We made it very clear in our statement of libels that we were not talking about congressmen. That has not been part of the case. This is explicitly a document dealing with the congressional delegations. It was dusty. There is no showing when it was authored, how long it had been there, who wrote it, had it ever been used. He said he took it off the shelf. I think it is irrelevant and is prejudicial. MR. DOYEN: I think those are matters that Mr. Dorsen is perfectly free to go into, if he thinks that it's got so much dust on it that it has been there for seven years, or if there was no indication that anyo~e had ever seen it. THE COURT: What do you tell me he will say in answer to this question? What is the document and what does he say is in it? MR. DOYEN: He will say that when he opened up the document to the first page, the document contained wores in substance that congressmen were to be given only information that was favorable to MACV ' s mission and not to be given any information that would not show progress or would be unfavorable to MACV's mission, and that that was the explicit statement of this manual. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N. Y. _ -

12 McCloskey - direct 0 I don't think I was totally clear what Mr. Dorsen said about the substantial truth point, so I'm not really prepared to address that. MR. DORSEN: It is not clear who drafted it. The fact that it had a MACV binder on it is not necessarily conclusive of anything. It may not have ever been used by MACV. It could have been a Defense Department document that could have been left on the shelves at MACV. This is potentially quite prejudicial. MR. DOYEN: I don't think it matters who uses it. THE COURT: I think it is pretty far out. I think I'm inclined to sustain the objection. I think it is so far as has been shown by the offer of proof and by the answers already given, it has only the most peripheral relationship to the subject matter of the dispute, but it has a high capacity to prejudice and to convey a misleading impression. I think I will sustain the objection. MR. BOIES: Your Honor, we would make an offer of proof that the document, if he were prepared to testify about it, or if he were permitted to testify about it, would say in substance what both Mr. Doyen and Mr. Dorsen have said it says. I think we are all in agreement what the document says. MR. DORSEN: What he would say the document says. SOUTHERN DISTRICT REPORTERS, U,S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. -

13 b McCloskey - direct THE COURT: I was assuming that it would say what they had both said it would say. MR. KOVNER: If you are sustaining what I gather Mr. Dorsen's objection is, I would just argue that evidence of deception of Congress is probative of a deception of superiors as well, and that the thrust of the broadcast was deception of a number of institutions of government. If this, indeed, is, as I understand, agreed to be a document showing deceptive material as to MACV, we would submit that it goes essentially -- is probative as to the heart of the issues before the court. MR. DORSEN: Can I say something? I don't want the record to remain with the suggestion that we are conceding anything. We are just talking about a document now, and the jury may construe it, and I am not making my suggestions as to how it should properly be construed. THE COURT: On this issue of substantial truth, I'm still waiting for, and have been for the better part of a month, for a brief from the defendants on substantial truth. In the thinking that I have done since around Christmas-time, when I was ruling on, I think it was the Becker deposition, I believe I am inclined to admit evidence of speeches made to Congress, or statements made to otherwise than to military higher-ups along the lines of SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. -

14 b McCloskey - direct the cross-over point and along the lines of a diminishing enemy force. I gave considerable amount of thought over the holiday to a brief letter of yours, Mr. Kovner, that summarized several points, about four points, a couple of which I rejected but a couple of which seemed to me to make some sense. I have been waiting for a more ample brief from the defendant and also from the plaintiff on that subject. Even though I am disposed to take a wider view of what I see to be the substantial truth issue, I think this piece of proof is a little far out. This is an operating manual: butter up congressmen. Don't give them bad news. It does not have the -- from what he testifies, it doesn't have the earmark of a document prepared for concealment of enemy strength figures developed in the last six months. Also, there are rather different considerations between dealing with the press, the public and congressmen on trips of this nature, an opposed to the military command, and I think, furthermore, that there is probably a difference between congressmen acting in the capacity of conducting -- there may be a difference between congressmen who are simply congressmen going to have a look and congressmen who are acting in a classified role in SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _ -

15 b McCloskey - direct connection with committee investigations, or something. But I really -- to come down to it, I think tha t this is a piece of evidence that doesn't really amount to a whole lot but has a very high capacity for prejudice. MR. BOIES: your Honor, if I could just very briefly, it seems to me that the strength of the piece of evidence and perhaps the source of its capacity for prejudice in the court's view is the fact that this is a document identified as a MACV document, a printed manual for dealing with congressional delegations. we believe, and would offer to prove, it says that when congressional delegations come, you are to only gi v e them the good news and you're not to give them any indications that MACV is not fulfilling its mission. I would argue, and I think this is what Mr. Kovner has already argued so I'll be very brief, but I would argue that that is probative of an overall attempt b y MACV to convince the people that it felt it had to convince that they were making progress, and that it goes to the credibility of the plaintiff, it goes to the credibility of the plaintiff's witnesses, it goes to the credibility of the entire MACV effort, it goes to whether MACV was acting honestly or not honestly. I think it is true, your Honor, that the jury might very well conclude that if MACV was prepared to be SOUTHER N DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _.

16 b McCloskey - direct dishonest to congressmen, MACV might also be prepared to be dishonest to others. But it seems to me that that is an inference that is within the province of the jury to make. THE COURT: I understood that thrust of the proof before, but your assertion that it has been identified as a MACV document has some truth to it, but it has not been very powerfully identified as a MACV document, a document that he found on the shelf there that he says he assumes it's a MACV document. MR. DOYEN: I think he did say that it was a HACV document. It said that it was a MACV document. That's my recollection of the testimony. THE COURT: All the same, I mean he is not a strong witness for authenticating a MACV document from having seen it on a shelf there, particularly if, as Mr. Dorsen says, which I assume he derives from a deposition or something, that it was dusty and showed signs of not having been used for some time. That makes it unlikely that the document was something created or intended to be ued since the time when General McChristian had come up with studies challenging the order of battle accuracy. The thesis of the CBS broadcast is that the motive for the deception was that General westmoreland had put out to the president, in particular, and to Congress, SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ - 0

17 b McCloskey - direct and to the public, a very optimistic message in April, I think it was, of, and then found himself in a most awkward position when he returned to Saigon to be greeted by McChristian's disclosure that MCChristian had suddenly found another 00,000 irregulars that ought to reported. If that's true, the dustiness of the document makes it most unlikely that this document was prepared for the purpose of advancing a deception that was conceived around May of, and -- I don't say that there aren't arguments that can be made. I think Mr. Boies and Mr. Doyen have made them, and I think they have some merit, but I think the capacity for prejudice very far outweighs the probative value, and I will sustain the question. R. BOIES: I will not prolong this, but I don't want to simply let it sit on the record an implication that the characterization of the broadcast is one that the defendants would accept. We don't need to go into it now, but I don't want there to be any misunderstanding that -- THE COURT: Let me say that it is a possible l characterization of the message in the broadcast. as to the motive of the deception? You mean MR. BOI ES: Yes. That I do not believe it is inconsistent with the broadcast to say that the deception was part of an overall concern for producing good news and SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. - -

18 b McCloskey - direct progress about the war, and that contrary to General Westmoreland's denial on the program, I think it would be quite consistent to say that there was a continuing concern with showing progress, of which this might be a part THE COURT: It is possible. It certainly was u message of the broadcast that Generul Westmoreland found himself in a predicament having delivered the cross-ove r message to the President and Congress and then found that McChristian greeted him with much bigger numbers. (Continued on next page.) II SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUAR E. NEW YORK. N.Y. _.