P1ainti ff, 12 November 1, :30 a.~. (In open court; jury not present) 23 houscke0ping matter. I haven't discussed this with Mr.

Transcription

1 SOUTHERN DISTl\ICT REPORTBRS. u.s. COURTHOUSE foley SQUARE. NEW YO.IlK. N.Y. - 79\.1020 '.' UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK x 4 GENERAL WILLIAM C. WESTMORELAND, '.5 P1ainti ff, 6 v. 82 Civ PNL 7 COLUMBIA BROADCASTING SYSTEM, INC., 8 GEORGE CRILE, MICHAEL WALLACE and 9 SAMUEL A. ADAMS, 10 Defendants x 12 November 1, :30 a.~ (Tr ia1 re.sumed) 1fl (In open court; jury not present) 19 MR. MURRY: Your Honor, we have a minor 20 housekeeping matter. 21 THE COURTt I can't hear you. 22 MR. MURRY: 'I a!t' sorry. We have a minor 23 houscke0ping matter. I haven't discussed this with Mr. 24 Boies, but I don't think there is going to be any~bjection. 25 He played a portion of the Graham videotape, and

2 we also made reference in cross-examination to the 2 transcript of General Graham's interview. Neither of those 3 exhibits were moved into evidence, and I would move Exhibit 4 13 and 13 A is the transcript of the interview, 13 A 5 is the videotape of the interview -- into evidence at this 6 time. 7 MR. BOIES: I take it it is being offered on the 8 state of mind issue, not on truth. 9 MR. MURRY: Well, certainly on the state of mind, 10 and if Mr. noies has an objection to it being offered for 11 the truth of the matters asserted 12 MR. BOIES: I vlould have no objection to 13 introducing it for the state of mind issue, your Honor. If 14 it is being offered for truth, I don't think that there is 15 an adequate evidentiary basis, and I am not sure there 16 could be. 17 THE COURT: You disagree with that? 18 MR. MURRY: Well, your Honor, the witness is 19 here, he is live, and he is testifying, and I think it can 20 be received for the truth of the matters asserted in the 21 interview. 22 Mr. Boies is free to cross-examine him on any 23 matters that are contained and any statements that are made 24 in the interview. 25 ~R. BOIES: I think it is no more than a prior SOUTHERN DISTRICT REPORTERS. U.S. COURTHotlSE. FOLEY SQUARE. NEW YORK. N.Y

3 statement of the witness, your Bonor, without any basis 2 being laid for the admissibility of it. 3 In addition, I think that if we were to try to 4 cross-examine this witness with respect to every statement 5 that he makes 6 THE COURT: Every statement and sound. 7 MR. BOIES: Yes, every statement and sound, your B Honor. 9 (Continuing) -- that he makes in that interview 10 it might take 150 hours just to do that. 11 I also think that there are probably portions bf 12 the interview that the court would not permit 13 cross-examination on or examination on, given the relevancy 14 rulings that the court has made. 15 THE COURT: It's a very abstract point. The 16 plaintiff has had the benefit of the witness for full 17 direct pxamination. There is no contention of impaired 18 memory or any reason why you couldn't ask him on direct 19 examination anything that youwanten to put forth through 20 this witness. 21 There is some merit to the plaintiff's argument 22 that since he is available for cross-examination the things 23 that he said on his interview might be received for the 24 truth, but I think that doing that adds all kinds of 25 complications of the sort that Mr. Boies is suggesting. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

4 ~ , Many of the things'on which he was interviewed are things that are not disputed issues in the trial. Had 3. he been examined here in the witness chair on the full 4 scope of the Wallace interview I would not have permitted a 5 lot of those questions. 6 I think under the circumstances there is no 7 reason to receive that tape for the truth of what it says. 8 I think that it's appropriate evidence on the CBS state of 9 mind. ~nd that does not prejudice plaintiff in any way, 10 since you got him here, you make full use of him, YGU have 11 offered his direct testimony. 12 ~lr. MURRY: Very well, your Honor. l3 THE COURT: 13 and 13 ~n are received as to the 14 state of mind of CBS anc the defendants. 15 (Exhibits 13 and 13 ~ for identification were. 16 received in evidence) 17 THE COURT: Call the witness and the jury, 18 please. 19 D.b.NIEL O. GR~H~Mresumed THE WITNESS: THE COURT: Good morning, sir. Good morning. 22 (Jury present) 23 THE COURT: Good morning, members of the jury. 24 JURORS: Good morning. 25 THE COURT: Glad to see we still have 18 of you, ~-: SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

5 i Graham i closs the hobgoblins didn't g~t ~ny~ody. ~-----~--~~~-.~,,~.,~ A couple of housekeeping notes before we proceed. 3 On Election Day a couple of you had sent notes asking about 4 the opportunity to vote. I have deciden we will have a 5 somewhat unusual schedule on Election Day. vihat we will do 6 is start court at 1 O'clock, after lunch. You are all to 7 hav~ han lunch ann to be here ready to start at 1 o'clock, B and we will go proba~ly to about 5:30 on that day. By 9 having the luncheon advance we really won't lose more than 10 about an hour of the day of the normal court schedule. 11 Today we will have a slightly longer lunch hour 12 than usual because counsel have advised me that there are 13 some matters of admissibility of evidence that they'want to 14 take up with me at that point. So we will adjourn for a 15 little longer than usual. You may have some time to tend f 16 to errands in the neighborhood. 17 I told you that tomorrow, Friday, there ~ill not 18 b(" trial. 19 Okay. Let's proceed. Mr. Boies, you may resume 20 your cross-examination. 21 MR. BOIES: Thank you, your Honor. 22 CROSS-EXAMINATION CONTINUED ~3 BY MR. BOIES: 24 Q. General Graham, yesterday afternoon we were 25 talking about the so-called political cadre or political SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y,

6 Graham - cross infrastructure. Let me begin by asking you whether you are 2 familiar \~ith what the Phoenix program was. 3 P Yes. 4 MR. MURRY: Objection, your Honor. 5 THE COURT: Grounds? 6 MR. MURRY: Your Ponor, I think the issue is 7 both prejudicial and irrelevant to the issues in the case. B THE COURT: vlell, come up ann tell me about it. 9 (At the side bar) 10 THE COURT: First, what do you want to show 11 about the Phoenix program? 12 MR. BOIES: I want to show that the Phoenix 13 program was a program that existed during the time that 14 this witness was in Vietnam and to his knowledge at other 15 times, that the purpose of the Phoenix.program wa~ to 16 eliminate insofar as it was possible the Vietcong political 17 cadre and political infrastructure, that there was a very 18 substantial amount of resource devoted to this because it 19 was recognized what the significance of the political cadre 20 and political infrastructure was, that in the course of the 21 Phoenix program a substantial number, in the range of 10 to 22 20,000, of the political cadre were kille~, and that those 23 political ca9re that were killed were to an extent -- and I 24 will have to ask the witness what extent engaged in what 25 I believe this witness will describe as fire fights. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

7 Graham - cross MR. OORSEN: I am afraid the jury may be able to 2 verhear this. 3 ~1R BOIES: They don't look like they are 4 listening. But I am talking as quietly as I can. 5 That sort of testimony. 6 THE COURT: And the purpose is what, to show 7 that th0y were armf>d or ~Ihat? 8 MR. BOIES: Just to show the significance of the 9 political cadre an0 the political infrastructure, to show their capabilities, and it is to s~ion of those capabilities/_~-- ---~ THE CO;RT: You mean as a.general matter the~,r/-" \ the inquiry is to demonstrate that they should appropriately have been included in the military order of 5 battle? Is that what it goes to? 1 ) MR. ROlES: I think that's not a bold way t " 17 p~e it, your Honor. 18 THE~: I have forgotten. Is t. political 19 cadre a group that w~. along with the SO 20 ann the SSO? 21 MR. MURRY: Ko, your Honor. They were put in a 22 separate section of the order of battle, ~ut there never 23 came a time that they were removed entirely from the order 24 of battle document. 25 MR. BOIES: If I could be permitted to answ~r SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

8 Graham - cross the court's qu~stion, I think the fact is, add I think I 2 established this fact yesterday with the witness, and I can 3 go ov~r it again if necessary, there came a time 4 immediately following the September Saigon conference when 5 the political cadre were for the first time removed from 6 the order of battle listing. They were included on a page 7 at the end of the document, but were not and~d into enemy 8 strength estimates, and were not published as part of the 9 total orner of battle strength the way they had been prior 10 to the September conference. 11 THE COURT: Were they included or excluded from 12 MACV's bottom line figures of 297 and later down to something? 14 MR. BOIES: They are not in the MACV bottom line 15 figure of 240-something. 16 THE COURT: Do you agree with that? 17 MR. MURRY: No, I don't. 18 MR. BOIES: You think they were MR. MURRY: What they were listed as was a 20 separate category, and in the press releases that were 21 issued regularly by MACV there was a statement, military 22 forces 223 to 248, whatever it was, political cadre 85,000, 23 whatever. 24 THE COURT: They were not included in the military forces? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

9 Graham - cross MR. MURRY: They were included on the same page, 2 but not added together. 3 THE COURT: Not in the 246? MR. MURRY: The 246 was labelen as armed forces, 5 military forc e s. 6 MR. BOIES: The answer to the court's question 7 is they we re not included in the TJ-lE COURT: All rig ht. Objection overrulecl. 9 IR. MURRY: Your Honor, may I make one other 10 point? 11 THE COURT: Yes. 12 MR. MURRY: vie think th['t the discussion of the 13 Phoe n i l( orogra'l1 is ani'llogous to a discussion of the ~y Lai 14 i ncicjent. It is a program which has been discussed often IS as a political issue. 16 There have been allegations made that there was 17 improper conduct. None of those allegations in any way 18 affected or were directe~ at THE COURT: That doesn't mean that Mr. Boies 20 can't ask any questions about it. You objected because he 21 said Phoenix program in his question. ~'aybe you were 22 taking precautions for the future, nn0 if what you're 23 saying is that he oughtn't to ask questions that are 24 designed to inflame the jury and cause p~eiudice, I would 25 agree wi th that. But that doesn't mean he can't ask any SOUTHERN DISTR.ICT IlEPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

10 Graham - cross questions about the Phoenix program insofar as it related to the counting of the enemy and whether the political cadre were armed, fought back, were appropriately to be considered as a part of the military order of battle. I hope that Mr. Boies isn't planning to get into questions that aren't pertinent to those issues or questions at all that are designed to inflame and cause prejudice as'to the manner in which the Phoenix program was 9 carried out. But that doesn't mean he can't ask questions that are proper questions on the subject of what the Army found out about the political cadre and their fighting capacity and the issue of their proper inclusion in the order of battle during the Phoenix program. 14 MR. MURRY: This subject was covered during ; General Graham's deposition and during other people's depositions, and the questions that tend to get asked, was the purpose of the Phoenix program to eliminate the political cadre, and there is an attempt to taint what the Military Assistance Command was doing by implying that there was a program to go around and have people assassinated, the political cadre, and that is what I think is prejudicial, to try to impugn the Military Assistance Command by either statina, inferring or implying that there was a program of political assassination. Secondly, your Honor, none of the Phoenix SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE F9LEY SQUARE. NEW YORK. N.Y

11 Graham - cross program activities -- it was a CIA program, as I understand 2 it, which may have had some personnel from the ~1ilitary 3 Assistance Command involved, but it was essentially a CIA 4 program. ~one of that relates to the question of the size 5 of the political cadre and whether MACV ever underestimated 6 political cadre. 7 The relevance of it and appropriate value in 8 terms of wh~ther there was suppression of intelligence is 9 very limited, but the possibility of prejudice when 10 presented in that way, was there a program to eliminate the 11 political cadre, is high. 12 THE COURT: Are you planning to ask the 13 questions in a way, 11r. Boies, that emphasizes or that gets 14 into emotionally prejudicial aspects of the Phoenix program? 15 MR. BOIES: If the court will give me a moment, 16 I will get my deposition. I plan with this witness to 17 stick very close to my deposition questions, for obvious 18 reasons, and I can show the court what I asked and what the 19 answers were. It's not very long. 20 THE COURT: I don't want to waste the time of 21 getting out the deposition. The fact that you asked it on 22 deposition is one thing, at the trial is another. The jury 23 didn't hear the deposition. /' 24 MR. BOIES: Your Honor, all I am trying to do is 25 to be precise with the court as to what I am going to ask. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

12 Graham - cross ! am not suggesting that because it's in the deposition I 2 can do it in court. I want to show the court very 3 4 f precisely what I plan to d'o. It does not seem to me that it can be prejudicial or unfairly prejudicial to the plaintiff to bring out the fact that there was a program, a MACV program. And the evidence in the record on the Phoenix program is that it was run by one of Westmoreland's deputies, not by 9 the CIA. The CIA may have been involved THE COURT: MR. BOIES: So what? Mr. Murry just said it was run by 12 the CIA. 13 THE COURT: The point is this: If the ourpose 14 of your questions is to bring out aspects o~ the political cadre that bears on whether they should have been counted or not in a military order of battle, which is what I understand your purpose of offering the proof to be MR. BOIES: That is correct, your Honor. THE COURT: -- that's fine. But to the extent that a discussion of the subject may include that MACV or the CIA or anybody thought it was desirable to have assassins go into a hamlet and kill them there or do acts of violence of that sort, that has nothing to do with whether the political cadre belonged in the military order of battle, and therefore I see no reason to get into SOUTHERN DISTRICT REPORTERS, U,S, COURTHOUSE FOLEY SQUARE, NEW YORK, N,Y, _

13 Graha.m - cross ~motiona1 orejudicia1 issues of that sort. 2 The fact that they were labeled for elimination 3 or assnssination, there is no necessary implication from 4 that that they were militarily significant. It may mean 5 that they were significant in other senses that made them 6 desirable targets of elimination, but it doesn't mean that 7 they were military. 8 To the extent that you want to go into how they 9 fought back and how much they were armed and what the 10 military found out about their armed strength and tneir 11 firepower and stuff like that, that's all fine. That all 12 has very much to do with whether they belonged in the order 13 of battle. But the fact that somebody said "Let's go out 14 and kill these people, kill those people," doesn't mean 15 that. they were armed and should have been counted 16 militarily. 17 MR. BOIES: Your Honor, I am going to do, if th. 18 court permits it, exactly what I told the court at the 19 beginning of the side bar conference that I was going to d 20 I do not plan to ask about assassinations. I a~ going to.21 go through exactly the questions that I told the court,. 22. insofar as I can replicate them when I am standing on my 23 feet in front of the witness. 24 I chose the neutral word eliminate because I didn't want to use the word assassinate, because I thought SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

14 Graham - cross the witness would disagr~e with the word assassinate. 2 THE COURT: All right. My only instruction is 3 that you use your judgment to keep your examination on the 4 line that's pertinent to the proof and doesn't lap over 5 unnecessarily into inflammatory ~atter. 6 (Continued on next page) SOUTHER.N DISTRICT R.EPORTERS. u.s. COURTHOUSE FOLEY SQUAR.E. NEW YORK. N.Y. _

15 Graham - cross (In open court) 2 BY MR. BOIES: 3 Q. General Graham, I believe I had just asked you 4 whether you were familiar with the Phoenix Program and you S indicated you were, is that correct, sir? 6 A. Yes. 7 Q. Was the purpose of the Phoenix Program to 8 eliminate the Vietcong infrastructure or political cadres? 9 A. Well, I don't know whether that's the way they 10 put the mission. But the idea was to try to neutralize it 11 in any case. 12 Q. When you say you don't know whether that's the 13 way they put, is that the way you've put it? 14 A. The way I put it is that their mission was to 15 neutralize the Vietcong political infrastructure. 16 Q. During the course of the Phoenix Program -- let 17 me ask you a preliminary matter. 18 vias the Phoenix Program underway while you were 19 in Vietnam? 20 A. Yes. I don't believe it was underway during the 21 whole time I was in Vietnam. It was underway by the time I 22 left I believe. 23 Q. What was Mr. Komer's responsibility for the 24 Phoenix Program, if you know? 2S A. Well, he was the -- he was chiefly responsible, SOUTHERN DISTRICT REPORTER S, U,S, COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

16 Graham - cross the top man on that program outside the commander himself 2 in Vietnam. 3 Q. And did you have discussions about the Phoenix 4 Program with Mr. Komer? 5 A. Probably, but I do not remember any of them. 6 Q. Do you remember general discussions with Mr. 7 Komer in connection with the Phoenix Program related to 8 pacification and the elimination of the political 9 infrastructure? 10 MR. MURRY: Objection, your Honor. 11 THE COURT: Overruled. 12 A. No, I don' t. 13 Q. Let me ask you to look at page 516 of your 14 deposition, sir. You may, of course, read whatever 15 portions you wish for context. The portion that I am 16 interested in begins at line 12 of page 516: 17 "Question: Well, what were the nature of your 18 discussions about the Phoenix Program with this military 19 assistant to Ambassador Komer? 20 "Answer: Oh, very general discussion of the 21 programs of pacification and the elimination of political 22 infrastructure." 23 A. 24 Q. Yes, I see that. Who was the military assistant THE COURT: I think the question you asked SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y. _ 791.)~20

17 Graham - cross previously was whether he had discussions with Ambassador 2 Komer. 3 MR. BOIES: Yes, it was, your Honor. What I 4 just started to ask the witness: Who was the military 5 assistant to Ambassador Komer that he refers too here. 6 A. Colonel Montague. 7 Q. Do you recall having these discussions with 8 Colonel Montague? 9 A. Yes; I discussed this to some extent. As I said 10 earlier in that deposition, I'm not expert on the Phoenix 11 Progr am. I knew not much about it. 12 Q. In addition to having discussions with Colonel 13 Montague do you recall any discussions with Ambassador 14 Komer along these lines? 15 A. No, I don't. 16 Q. Do you know how many of the Viet Cong political 17 cadres were killed during the Phoenix Program? 18 A. 19 Q. 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. NO, I don't, I don't. Do you know, approximately? No, I don't. Have you ever heard any estimates of that at all? Perhaps, but I don't recall them. You don't recall them? No. Were you aware during the time that you were in SOUTHERN DISTRICT REPORTERS, U,S. COURTHOUSE FOLEY SQUARE. NEW YORK. N,Y. - '

18 Graham - cross Vietnam of the number of Vietcong political cadres killed 2 under the Phoenix Program? 3 A. No. 4 MR. MURRY: Objection, your Honor. 5 THE COURT: Overruled. 6 Q When the political cadres were killed during the 7 Phoenix Program, were they subtracted from enemy strength 8 estimates as part of the body count? 9 MR. MURRY: Objection as to form, your Honor. 10 THE COURT: What's wrong with the form? 11 MR. MURRY: I think there's a predicate in Mr. 12 Boies' question, your Honor, whicn is at least misleading. 13 THE COURT: Overruled. 14 A. Say again, please. 15 Q Under the Phoenix Program, were there Vietcong 16 political cadres killed without being able to estimate the 17 number? 18 You know that there were some that were killed; 19 do you not, sir? 20 A. I certainly assume that some were killed. I 21 know that considerable numbers were killed during the 22 actual Tet offensive. 23 Q. Considerable numbers of the political cadre were 24 killed? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, U,S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _ L

19 1 Q. During the Tet offensive? 2 A. That's correct. Graham - cross Q. When -- and let me take the Tet offensive 4 separately if I can. 5 When the political cadres were killed during the 6 Tet offensive, were you able to distinguish in terms of a 7 body count who was a political cadre and who was a 8 guerrilla~ r something else? A. In some cases, yes. I remember they had one political cadre man with a bull horn out in the middle of 1 one of the boulevards in Saigon telling everybody that the 1 general uprising had taken place and they were not to go to work. They were now in charge and, of course, the white 14 eliminated him. The Vietnamese police elimin.~ him 15 very 16 So, yes, some of them you could tell were actual 17 political cadre. 18 We also knew that within many of the cities they 19 exposed political cadre that they had never exposed before 20 so that they could, in fact, be identi fied. 21 Q. When political cadres were killed, other than 22 perhaps the case when the white mice killed the guy with 23 the bull horn in the middle of Saigon, what were the 24 political cadres doing? 25 THE COURT: You are asking about Tet? SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y

20 Graham - cross MR. BOIES: Yes, your Honor. As I said, what I 2 want to do is I want to go at Tet first, because he raised 3 that specifically. 4 THE COURT: I wanted to make it clear that your 5 question related to Tet. 6 MR. BOIES: Yes, it does, your Honor. 7 A. Well, they were attempting to create what the 8 Vietcong had hoped for to go along with their military 9 offensive which was what they called the general uprising. 10 They were out making speeches and exhorting people to j oin 11 the uprisi ng and they were -- of course, it was a hopeless 12 effort and they just got scaffed up as we say, they were 13 either captured or killed trying to do that. 14 Q. Is it your testimony that the political cadres 15 th.at were just standing around making speeches were killed, 16 sir? 17 A. No. I'm saying that that's one of the things 18 that they were doing when they got captured or killed. 19 I believe that more of them were captured than 20 killed, although I am not sure of that either. 21 Q. What I want to do, if I can, is focus on the 22 political cadres that were killed during the Tet offensive. 23 You said that a large number of political cadres were 24 killed during the Tet offensive, correct, sir? 25 A. That is my assumption that they were killed. I SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

21 Graham - cross don't know of a figure, X number of political cadre were 2 killed in the Tet offensive. I do know that a lot of them 3 were exposed to the possibility of getting killed and that 4 quite a large number of them were captured because of thei r 5 attempts to get the political half of the offensive, trying 6 to make that effective. 7 Q. Let me focus, if I can, on those that were 8 killed and we'll come to those that were captured. 9 Do you have any estimate at all of how many 10 political cadre were killed during the Tet offensive? 11 A. I have an estimate. I wouldn't hold it very 12 adamantly, but about 5,000 I think is a reasonable figure 13 for the number of political cadre eliminated one way or 14 another, either killed or captured. 15 Q. If I could, sir, I would like to have an answer 16 to the question about killed, if you can give it. 17 A. I can't give you a figure on that, Mr. Boies. I 18 don't know. 19 Q. Can you give me any estimate at all of the 20 number of political cadre killed during the Tet offensive? 21 A. No. It would be a shear guess. I won't do it. 22 Q. with respect to the number of political cadre 23 that were killed under the Phoenix Program not related to 24 the Tet offensive, were those political cadre included in 25 the official body count figures, if you know? SOUTHER.N DISTRICT REPORTERS, u.s. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y ' '020

22 Graham - cross A. I don't know. 2 Q. During the Tet offensive, with respect to the 3 political cadres that were killed, not captured, but killed, 4 were they political cadres included in the MACV official 5 body count figures, if you know? 6 A. I believe they were. 7 Q. Do you know when the Phoenix Program started? 8 A. NO, I don't. 9 Q. Do you know the level of resources that were 10 permitted at the Phoenix Program by MACV? 11 A. No, I don't. 12 Q. Co you have any approximation of how many men 13 MACV devoted to the Phoenix Program? 14 A. No, I don't. 15 MR. MURRY: Objection as to form, your Honor. 16 THE COURT: You mean that it presupposes that 17 MACV devoted some men to it? 18 MR. MURRY: Yes, sir. 19 THE COURT: Did MACV devote any men to the 20 Phoenix Program, to your knowledge? 21 THE WITNESS: The mission out there did. If you 22 are talking about MACV, as a military organization, I don't 23 know whether they had military men in it or whether it was 24 all CIA people reporting to Ambassador Bunker. 25 o Didn't you just mention a Colonel Montague, sir? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

23 Graham - cross A. Yes. 2 Q. Colonel Montague was a military officer, was he 3 not, si r? 4 A. Yes, he was. 5 Q. And I believe you indicated -- and correct me if 6 I am wrong -- Colonel Montague was Mr. Komer's special 7 assistant in connection with the Phoenix Program, is that 8 correct? 9 A. He was Mr. -- he was Ambassador Komer's 10 assistant as deputy to General Westmoreland and then 11 General Abrams for pacification. That involved a lot of 12 things other than the -- including the Phoenix Progra~. So 13 whether Montague could have been considered part of the 14 Phoenix Program or not I think is a moot question. 15 Q. Those responsibilities were at least included in 16 the responsibilities of Colonel Montague and of Ambassador 17 Komer who I think you indicated was a deputy to General 18 Westmoreland? 19 A. Certainly in Ambassador Komer's; whether it was 20 part of Montague's responsibility or not, I don't know. 21 Q. Do you have any approximation of the amount of 22 money, if any, that MACV devoted to the Phoenix Program? 23 A. NO, Mr. Boies. I don't even know how much money 24 it costs to run my own shop. 25 Q. Did you ever attend any Weekly Intelligence SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

24 Graham - cross Estimate Update meetings, the so-called WIEU meetings, at 2 which the Phoenix Program was discussed, if you recall? 3 A. I don't recall any where it was discussed. 4 Q. All right. 5 With respect to Ambassador Komer, the issue has 6 come up in this case as to whether Ambassador Komer was 7 passing on any information he received to President Johnson 8 or to any member of President Johnson's staff. 9 Did you have any reason to believe that Mr. 10 Komer reported information he received or some of the 11 information he received to President Johnson or to any 12 member of President Johnson's staff? 13 A. Did I have any reason to believe? 14 Q. Yes. 15 A. Yes. There were reasons which would lead one to 16 believe he was well known back in Washington. He made 17 tr ips back there. So it was a 10'g ica1 assumpt i on to make; 18 but I had no direct knowledge of that. 19 Q. 20 A. 21 Q. You had no direct knowledge of that? No. Would you look at page 488 of your deposition, 22 sir THE COURT: MR. BOIES: Page? 488, your Honor. 25 Q You may, again, read whatever portions you find SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUAAE. NEW YORK. N.Y

25 Graham - cross it useful to put this into context. The question I'm 2 particularly interested in is the question at line 11: 3 "Question: Did you have any reason to believe 4 that Mr. Komer reported information" -- 5 MR. MURRY: Your Honor, there is an objection to 6 the question in the deposition and I object to Mr. Boies 7 reading this question from the deposition since I objected 8 at the time. 9 THE COURT: Just a second. 10 THE COURT: What is the objection? 11 MR. MURRY: That question was compound and I 12 thought it was also vague and ambiguous. 13 THE COURT: Overruled. You may read it. 14 Q General Graham, the question that I asked you at 15 the deposition was: 16 "Question: Did you have any reason to believe 17 that Mr. Komer reported information he received, or some of 18 the information he received, to President Johnson or to any 19 member of Pres ident Johnson's staf f? 20 "Answer: No, I had no reason to bel ieve tha t." 21 Did you see that question and answer? 22 A. Yes, I saw it. )3 Q. Did you give that question and answer or did you 24 hear that question and give that answer at your deposition? 25 A. I presume so. It's in there. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y ~l020

26 Graham - cross Q. Did this represent your best knowledge and 2 information at the time you gave this answer? 3 A. Yes. 4 Q. Let me turn to the subject of the broadcast very 5 briefly. 6 I believe that you testified on direct 7 examination that you had seen the CBS broadcast? 8 A. Yes, I did. 9 Q. There has been some discussion in this case as 10 to who the head of the MACV delegation to the August NIE 11 conference in 1967 was and there has been some discussion 12 as to what the broadcast said about that. 13 Did you believe that the broadcast asserted that 14 the head of the MACV delegation at that August conference 15 was Colonel Hawkins? 16 THE COURT: Is that question objected to? 17 MR. MURRY: Yes, your Honor. 18 THE COURT: Sustained. 19 Q Let me turn to a different subject. 20 THE COURT: Let me explain the reason that I 21 sustained that objection, members of the jury. 22 The issue that Mr. Boies is addressing by that 23 question is the issue whether the broadcast identified one 24 person or another person as the head of the MACV delegation 2S to the August NIE con.ference. SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. - 7"-' 020

27 Graham - cross Now, that is a question on which General Graham's 2 opinion is no better than anyone else's opinion, anyone who 3 watches the program. You are the jurors, you are the one 4 who is to make this assessment. The assessment is what did 5 the broadcast say or imply or convey about who was the head 6 of the MACV delegation. 7 You perhaps don't remember that from what you 8 have seen of the broadcast, but I am sure you will be 9 hearing more about that issue as the trial goes on and it 10 will be one of the questions, one of the very many 11 questions for you to decide, what the broadcast said about 12 who was the head of the MACV delegation. But you don't 13 need help from General Graham as to what he understood the 14 broadcast to say, because, first of all, he watches the 15 broadcast from a very different point of view from the man 16 in the street so to speak. He watches the broadcast 17 already knowing a great deal about it and knowing a great 18 deal about what was going on in the events that he 19 participated in. 20 So his evidence on what he understood the 21 broadcast to be saying is really of no significance 22 whatsoever. It is you who are to make the decision what 23 you understood the broadcast to be saying. 24 You may proceed. 25 MR. BOIES: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS. u.s. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

28 Graham - cross BY MR. BOIES: 2 Q. You have had a number of conversations 3 personally with General Westmoreland about the subject 4 matter of the CBS broadcast, both before the broadcast 5 aired and afterwards, have you not, sir? 6 A. I have. 7 Q. In the conversations that you have had with 8 General Westmoreland -- and I would ask you to wait before 9 you answer this question to see whether this falls within 10 the same guideline that the court has just announced 11 when you had conversations with General Westmoreland after 12 the broadcast aired, did General Westmoreland indicate to 13 you in words or in substance what General Westmoreland 14 believed what the broadcast asserted about who was the head 15 of the MACV delegation to the August NIE conference? 16 MR. MURRY: Objection, your Honor. 17 MR. BOIES: I'll withdraw the question, your 18 Honor. I think it is the same issue. 19 Q. General Graham, did you have any conversations 20 with General Westmoreland about your joining in this 21 lawsuit? 22 A. Yes. 23 Q. Did there come a time when General Westmoreland 24 called you on the telephone and asked you if you would join 25 this lawsuit? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

29 Graham - cross MR. MURRY:.objection, your Honor, relevance. 2 THE COURT: Overruled. 3 A. Yes, he did. 4 Q. What did you tell him at that time? 5 A. That if it -- if that was necessary to prevent a 6 delaying tactic by CBS that would try to wait until the 7 general died and since I was likely to outlive him, if that 8 was a consideration, sure, I would join the case. 9 Q. And did General Westmoreland indicate to you 10 that there was any chance that this case was going to be 11 delayed, s i r? 12 A. Yes, that there was a possibility that the case 13 would be delayed and that something untoward would happen 14 to the general's health and it might be a good idea to have 15 two of us. 16 Q. Did General Westmoreland in that conversation 17 tell you, sir, that his attorneys twice asked for an 18 extension of discovery which was opposed by CBS? 19 MR. MURRY: Objection, your Honor. 20 THE COURT: Sustained. The jury will disregard 21 ito 22 Q. Did you tell General Westmoreland anything else 23 in that conversation? 24 A. 2S Q. I don't recall. You ultimately concluded not to join General SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

30 Graham - cross Westmoreland in this lawsuit, is that correct? 2 A. I was dissuaded by General Westmoreland's 3. counsel. 4 Q. Thank you. 5 Let me turn to the subject of infiltration. 6 What was your best estimate of infiltration, if 7 you had one, in September of 1967? 8 A. All my -- 9 MR. MURRY: Just a second. Objection, your 10 Honor. I would like a time period specified. Does he mean 11 all of 1967? 12 THE COURT: Sustained as to form. 13 Q h~at was your best estimate of infiltration in 14 September of 1967? 15 MR. MURRY: The same objection, your ~onor. Is 16 he talking about for the month of September? 17 THE COURT: Yes. I think you have to clarify it. 18 You have to ask him what was your best estimate as of what 19 moment. If you are asking about infiltration for September, 20 ask him what his best estimate was for September at some 21 moment in time. 22 Q Did your best estimate of infiltration in 23 September of 1967 change, that is, did you have one 24 estimate at one time and a different estimate at a 25 different time? SOUTHERN DISTRICT REPORTERS, U,S, COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

31 Graham - cross MR. MURRY: Same objection" your Honor, he 2 hasn't sp~cified the -- 3 THE COURT: Overruled. He's asking whether the 4 information " on infiltration that came to you pertinent to 5 the month of September 1967, did that lead you to different 6 estimates at different times. 7 A. To try to remember a specific figure that far 8 back is tough to do. But I do recall during that period it 9 was our view that the monthly average infiltration was in 10 the 5,000, 6,000, something like that. 11 THE COURT: The question is whether from time to 12 time your ~igures changed, in other words, whether if you 13 had a figure for September inf i 1 trat ion on October 1, 14 whether that figure would have been different from the 15 figure that you had for September infiltration on December THE WITNESS: Oh, yes. Figures changed because 18 there was a delay in confirming whether infiltration had 19 taken place. The reason being that we didn't have anyone 20 standing at the border counting people coming across the 21 border. What we tended to do was to capture people and 22 find out when they had come across the border and how big a 23 package they had come with so that our figure for 24 infiltration three months ago was hell of a lot better than 25 our figure right now I guess. That was just the nature of SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YOltK, N.Y

32 Graham - cross the evidence available to us. 2 Q. You would receive infiltration estimates from 3 CICV, would you not, sir? 4 A. Yes. 5 Q. And you received information or you received 6 infiltration estimates from CICV in September and October 7 and November and December of 1967 and January of 1968, 8 correct, sir? 9 A. Well, not precisely. I got infiltration figures 10 from CICV. They would say, this many confirmed at ~- for 11 these months; this many probable for these months; this 12 many possible for these months. It did not constitute an 13 estimate, actually. 14 Q. You got infiltration figures from CICV? 15 A. That's correct. 16 Q. Were these infiltration figures that you got 17 from CICV invariably lower than the infiltration that you 18 believed was actually taking place for the period of time 19 covered by those figures? 20 A. No. I'm sure that's not the case. Q. You're sure that's not the case; is that what you said? A; Invariably lower than what we were putting in 24 the estimates? 25 Q. That's what I said, yes. SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

33 Graham - cross A. Well, no. 2 THE COURT: Well, no, that wasn't what you asked. 3 I'm sorry. 4 The question was: Were the figures lower than 5 what you believed was taking place, not lower than what you 6 put in the estimates, is that correct? 7 MR. BOIES: I think that's right, your Honor. I 8 think both the witness and I got off the exact question. 9 THE COURT: You can ask him whichever one you 10 want, so long as it's clear. 11 Q Did you put into your estimates the figures that 12 you believed were your best estimate? 13 A. Well, sure. 14 Q. Were the figures that you got from CICV 15 invariably lower than what you believed to be your best 16 estimate, what you put in your estimates? 17 A. No. It was almost always the other way around, 18 because if you took all of the confirmed infiltration and 19 added all the probable infiltration and then all the 20 possibles, the possibles were -- would usually turn out to 21 be 3 or 4 times bigger than anything that would ever wind 22 up in the confirmed column. The probables about half of 23 those, as the term implies, would wind up confirmed. 24 So that if you took the total of what we knew, 25 what was probably so and what might be so, it was almost SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

34 Graham - cross invariably higher than what the eventual estimate of how 2 many came in on any given month would be. 3 Q. You are saying that the CICV figures were almost 4 invariably higher than your estimates? 5 A. Yes, if you added all categories of possibility. 6 Yes. 7 Q. And by all categories of possibility, you mean 8 all categories of possibility that were included in the 9 CICV figures? 10 A. That's correct. 11 Q. Would you look at page 270 of your deposition, 12 sir. You may read whatever portions you want to put this 13 into context. 14 The sentence that I am particularly interested 15 in is the sentence that begins on line 15 and ends on line when you said: "The CICV would-- figures would also" MR. MURRY: THE COURT: I object. What page are you on? sir? Q. A. Q. MR. BOIES: Page 270. May I approach the bench, your Honor? Line 15. (Discussion off the record) Have you had an opportunity to read page 270, Yes, I have. In its entirety? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK.. N.Y. _

35 1 A. Yes. Graham - cross Q. The portion that I am particularly interested in 3 is that sentence that I started to read that says: "The 4 CICV would figures would also invariably show too low a 5 figure for me to use as an estimate." 6 Do you see that? 7 A. Yes. 8 Q. You don't have any doubt that that's what you 9 said at your deposition, do you, sir? 10 A. NO, I don't doubt it. 11 Q. And at your deposition did you believe that the 12 CICV figures would invariably show too low a figure for you 13 to use as an estimate? 14 A. I am not sure. I said the CICV and figures -- I 15 tell you what I was talking about then, if that's what you 16 are getting at. That is confirmed infiltration which that 17 column -- this is what we know infiltrated last month was 18 always too low to use as an estimate because some of the 19 probables and possibles would eventually show up as reality. 20 Therefore, that particular col umn of here is 21 confirmed infiltration would invariably be too low. 22 Q. Of course, in this answer, you didn't say 23 confirmed infiltration, you were referring to the ~ICV 24 figures, correct, sir? 25 A. I am not absol utel y -- I sa id : "The CICV would -- SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY. SQUARE. NEW YORK. N.Y. _

36 Graham - cross figures would also invariably show" and that's what I 2 undoubtedly was thinking about is what I just told you. 3 Q. The confirmed numbers; is that what you are 4 talking about, sir? 5 A. Yes. If you just took what had been confirmed 6 they would invariably go up, because they were invariably 7 the -- the data base was incomplete. 8 Q. What if you took the total CICV figure, to use 9 your word as opposed to estimate, for infiltration, would 10 that invariably go up as well, sir? 11 A. If I added the probables and the possibles to 12 the confirmed, it would invari3bly go down. If you just 13 took confirmed, later on you would find that that figure 14 was too low. 15 If you took all the possibilities of 16 infiltration and the figure that that produced, it would 17 invariably come down. 18 Q. Are you saying, sir, that when CICV would give 19 you, in October of 1967, figures for infiltration in 20 September of 1967 they would give you a number or figure 21 for confirmed, one for probable, one for possible and one 22 for total? 23 A. 24 Q. I am not sure they totaled them that way. You are not sure they totaled them? 25 A. No. They would give me those three categories SOUTHERN OISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

37 Graham - cross of possibility and when they said probable, that's what the 2 word means, 50 percent chance. possible means greater than 3 zero chance and so, you know, those are pretty descriptive 4 words for the figures that were in those columns. 5 (Continued on next page) SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. - '91~1020