Smith - cross as to wh e ther this is the complete document as produced. I. 8 have no objection to this being used at this time but Mr.

Transcription

1 Smith - cross (Pause) 2 MR. DORSEN: Your Honor can we approach the side 3 bar for a second, please. 4 (Side bar) 5 MR. DORSEN: Mr. Boies. 6 MR. BOIES: Your Honor, there is some question 7 as to wh e ther this is the complete document as produced. I 8 have no objection to this being used at this time but Mr. 9 Dorsen and I have agreed that if this was not the complete 10 document as produced we will supplement it. Is that fa i r? 11 MR. DORSEN: That's correct. 12 MR. BOIES: I take it also it is also the case 13 that you represent that nothing has been knowingly taken 14 out? 15 MR. DORSEN: That's correct. (In open court) A I answer in the affirmative. I recognize the document. I recall working on a document that this appears to be a copy of. MR. DORSEN: Your Honor, we offer Exhibit 716 A. MR. BOIES: No objection. Objection, hearsay. It ' s rather lengthy. Can you point my attention to what portions you expect to use? MR. DORSEN: Let me ask this one question a nd SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK. N.Y

2 Smith - cross maybe we can resolve this at a later time. 2 Q. Mr. Smith, would Mr. Adams have seen this 3 document in February 1968? 4 A. Adams should have seen it if he we re there. We 5 were busy. I don't recollect him seeing it. But, on the 6 other hand, it's been 17 years and he may have been 7 enmeshed in helping write it or he may not have even seen 8 it. I can't really tell. 9 Q. The procedures as they weze in effect in the 10 Sout h vietnam division, would in the ordinary course of 11 e vents Mr. Adams have seen Exhibit 716 A? 12 A. There would have been nothing to inhibit his 13 seeing it, yes. MR. DORSE N: Your Honor, at this time I would offer it for state of mind, reserving the question of other offers until a later time. MR. BOIES: Objection, your Honor. You say there would have been nothing to inhibit his seeing it? THE WITNESS: Yes, sir. Given his duties and given the ordinary -- given whatever ordinary functioning procedures there were in the South Vietnam division, would you have expected him to have seen this document? THE WITNESS: If he were available. Sam could SOUTHERN DISTR ICT REPORTERS, U.S. COURTHOUS E F O T F Y <;()lla R l= N l= W VOl/I( '" v _ 701 In"lf\

3 Smith - cross have been on leave or something. I just don't recall 2 specifically. But I would have expected h im to have seen 3 it had he been in the building and working. But I don't 4 have any personal recollection of the fact. 5 Can you direct my attention to any 6 part of the document that you think is significant? 7 What part is the plaintiff offering? 8 MR. DORSEN: Certainly, the first sentence, your 9 Honor, we would contend is relevant. 10 The first sentence on what page? 11 MR. DORSEN: Of the summary. 12 MR. BOIES: Your Honor, is this document already 13 in ev idence? 14 Wasn't this document used with Mr. Allen? 15 I don't think this document is in 16 ev idence. 17 MR. BOIES: I do remember reading or having 18 somebody read portions of this document at some point. 19 MR. DORSEN: I believe I showed it to Mr. Adams but I don't believe it was offered at that time, your Honor. MR. BOIES: Perhaps I am in error. I apologize. ~ Why don't you come up to the side bar. (Side bar) I don't understand. What do you SOUTHER N DISTR ICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. N EW YORK. N.Y

4 1 mean by your hearsay objection? Smith - cross From all that appears, this is a memorandum by 3 the -- according to what he said a memorandum by the 4 South vietnam division reporting on some intelligence 5 estimation t hat they have been doing. 6 MR. BOIES : Contained in this document are a 7 large number of assertions and numbers that I believe, just B from the face of the document, but I also believe 9 independent of just reading the document, were assert i ons 10 and numbers that were not generated by the South Vietnam branch but were given to the South Vietnam branch and which 12 they either used in their analyses or commented on it. 13 When it talks about reported losses, for example, 14 of 32,500 killed in action and 5,500 detained it is I 15 believe talking not about what the South Vietnam branch did 16 in its analysis but what had been reported by others and I 17 think in t h is particular case perhaps MACV. 18 That's what it says. That's the way 19 I would understand it. It's not talking about -- it says 20 if the reported losses MR. BOIES: It doesn't say who reported it. No. MR. BOIES: I think it is clear that it is not the South Vietnam branch. That being so, the mere fact that the South Vietnam branch prepares a document doesn't I SOUTHERN DISTR ICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE, NEW YORK, N.Y

5 Smith - cross think obviate the multiple levels of hearsay that are 2 contained in it. 3 I am confused by fact that I have a recollection 4 of a portion of this being used and indeed I have a 5 recollection of my asking to have a particular sentence 6 read for context which I think the court granted. perhaps 7 that was in connection with the use of the document for 8 impeachment purposes and it was not admitted. 9 MR. DORSEN: That's precisely the purpose. 10 Your Honor, several arguments can be made. One, 11 this witness has testified there was practice of using MACV 12 material in arriving at estimates. 13 Two, the fact that Mr. Smith uses these numbers 14 at a time when he.according to his testimony had all these 15 sources of information is certainly relevant to the 16 plausibility of MACV numbers. 17 You pointed my attention to the 18 first sentence of the summary which talks about 58, being local forces and attacks on urban areas and military 20 installations through February MR. DORSEN: I think the entire summary reflects a level of activity that's highly consistent with the testimony of plaintiff's witnesses. The first sentence of the second paragraph talks in terms of reported enemy losse s o f 32,000, which is we submit entirely consistent SOUTHERN DISTR ICT REPORTER S. U.S. COURTH OUS E FOLEY SQUARE. NEW YORK. N.Y

6 1 with the MACV Order of Battle. Smith - cross This is a document prepared by Mr. Smith's 3 branch. 4 MR. BOIES: I think that is exactly the kind of 5 thing I am concerned about, your Honor. He focuses on the 6 number of killed in action. He says that's quite 7 consistent with what MACV was reporting. It is obvious 8 that what he is intending to do is use this document for 9 the very purpose he now reveals whi~ is to say, look, the 10 South vietnam branch published this document with this 11 figure in it and that is quite consistent with what MACV 12 was reporting, whereas there is no testimony in the record 13 as to what the basis of that number is. 14 NOw, maybe such testimony could be elicited but 15 it has not b e en yet. 16 Mr. Dorsen says Mr. Smith had all these sources 17 of information available to him. I don't think Mr. Smith 18 has test if ied that he had sources other than MACV ava i lable 19 to him fol killed in action figures. 20 Well, he has testified that his 21 observation of the enemy Tet strength was completely 22 inconsistent with the enemy strength as reported in the NIE. NOw, he apparently prepared this document. The date that appears on it is 21 February '68. If this document contains information that seems inconsistent with SOUTHERN DISTRICT REPORTERS. u.s. COURTHOUSE FOLEY SQUARE, NEW YORK, N,Y

7 Smith - cross that testimony, as a general proposition, I don't see why 2 it shouldn't be received as impeachment of that prior 3 opinion ~hat he e xpressed with the ga t es wide open for you 4 to show or for him to state in his answer that certain 5 numbers in this document are not numbers that resulted from 6 his research or even consistent with his beliefs but were 7 simply an acceptance of numbers gene rated elsewhere. 8 MR. BOIES: I think in an appropriate situation 9 the document can be used for impeac~ment and Mr. Dorsen 10 s ays and he 's probably right that's the way the document 11 was used prev iously. 12 But I think that using the document for 13 i mpeachment does not mean introducing the entire document. 14 Where is something that's harmful? 15 Where is something that -- I mean the witness has 16 acknowledged his own partial authorship. The document says 17 on its face that it was prepared by -- it says OE R, Office of Economic Research, with the assistance of vietnamese Affairs Staff. MR. DORSE N: That's Mr. Smith. Is that him, vietnamese Affairs Staff? MR. BOIES: No. It is the Carver Allen part. The vietnam branch is in the Office of Economic Research. Vi e tnam branch is part of OER? SOUTHERN DiSTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

8 Smith - cross MR. BOIES: That's right. 2 I don't see why it should not be 3 received. 4 MR. BOIES: This is a CIA document to which his 5 branch along with a number of others contributed. There is 6 no testimony as to what contribution was made by this 7 witness. There is no testimony as to what contribution 8 even was made by this witness' branch. I simply think that 9 there is not an adequate foundation ~o admit this document 10 as such. There may be an adequate foundation for the use 11 of parts of the document. 12 This is a CIA document that had a number of 13 people contributing to it, a number of different branches contributing to it. They relied and incorporat.ed in the document information from a variety of other sources and it just seems to me that the introduction of this document as such doesn't have an adequa te foundation. I think those things are subject to explanation. I'll ask him one or two questions but I t h ink I will overrule the objection. MR. DORSEtl : Your Honor, if it's admitte d, I would like to read the summa ry to the jury. MR. BOIES: If the summary is read I would request that the sentence that I previously asked to ha v e SOUTHERN DISTR ICT REPORTER S. U.S. COURTHOUSE FOLEY SQUAR E. NEW YORK. N.Y ]0

9 Smith - cross read and was read the last time this happened be read in as 2 well. That's the sentence on the top of page 5. 3 Do you have any problem with that? 4 MR. DORSEN: Why don't we just read the entire 5 paragraph 6, in addition? 6 MR. BOIES: That's all right with me. 7 (In open court) 8 Mr. Smith, as I understand it, is it 9 your testimony that you worked on th~ production of this 10 document? 11 THE WITNESS: Yes, sir. 12 Who produced the document, what 13 office? 14 THE WITNESS: It was produced by my office, the ER down in the corner, the Office of Economic Research is indicated by ER down here in this corner. Am I correct that your office was a part of the Office of Economic Research? THE WITtIESS: My branch was a part of it. Your branch was the South vietnam branch? THE WITNESS: The Office of Economic Research is the parent office. Was this document produced by the South Vietnam branch? SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

10 Smith - cross THE WITNESS: Yes. 2 Were you the head of South Vietnam 3 branch? 4 THE WITNESS: Yes, I was, sir. 5 Objection overruled. 6 (Exhibit 716 A for identification was received 7 in evidence) 8 MR. DORSEN: I would like to read to the jury 9 from 716 which is a intelligence memorandum entitled "Communi t 10 Units Participating in At tacks during the Tet offensive January through 13 February, 1968." It's dated 21, 12 February First of all I'll read the summary: 14 "A review of the field reporting since the start 15 of the current communist offensive indicates that 16 approximate ly 5 8,000 communist main and local forces were 17 committed in attacks on urban area and military 18 installations through 13 February. (For detailed data o n forces a vailable and engaged in the Tet offensive see Appendixes A and B.) Of this total, about 37 percent were North Vietnamese Army (NVA) troops and another 29 percent were Vi e t Cong (VC) main force troops. The remaining 34 percent consisted of VC local forces which had been reinforced for the attacks by the upgrading of the local guerrillas. On t he basis of the MACV's latest Order of SOUTHERN DISTR ICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

11 Smith - cross Battle of 115,000 men, the Communists would appear to have 2 committed about 50 percent of the their regular forces to 3 the attacks. 4 If the reported loss of 32,500 killed in action 5 and 5,500 detained applied solely to the VC/ NVA regular 6 forces, the Communists would have lost more than 65 percent 7 of the forces committed to the Tet offensive. This would 8 have been a devistating blow. However, there are a number 9 of pieces of evidence which suggest~hat such an 10 interpretation would overstate the communist manpower drain. 11 First of all, VC/ NVA forces participating in the 12 the offensive were augmented by numbers of guerrillas 13 ope rating in independent units or intergrated into local 14 force units. Second, there was extensive VC activity to 15 raise new recruits. Third, casualities included laborers 16 conscripted to move VC supplies, as well as a number of 17 civilians in densely populated areas taken under attack. 18 Almost certainly the rate of casualties among new and 19 relatively untrained forces was higher than in among 20 hard-core troops n In summary a number of factors suggest that the VC/NVA losses although high are not as serious as first believed. Most recently, the enemy has been tak i ng advantage of his greater control Ot countryside to acce l e rate recruiting among the rural population. All of SOUTHERN DISTR ICT REPORT ER S. U.S. COURTHOUSE FO LEY SQUARE. NEW YORK, N.Y

12 Smith - cross these developments make it difficult to assess the current 2 enemy manpower situation with any accuracy. " 3 Moving to paragraph 6 of the text: 4 "A review of the field reporting since the start 5 of the communist offensive although still incomplete 6 provides sufficient information to identify most of the 7 enemy units directly participating in the attacks against 8 urban areas and military installations." 9 The footnote at that poiqt reads: 10 "This memorandum does not include attacks on 11 military installations in the Khe Sanh area." 12 Backs to the text: 13 "These units are listed in Appe ndix B, which 14 shows as of 13 February (Saigon time), approximately 58, communist main and local forces have been actively 16 committed in the Tet attacks. The number of communist 17 forces committed to reserves and defensive positions for 18 the Te t offensive is not considered in this memorandum." 19 Your Honor, can we just approach the bench? I 20 don't think this has to be on the record. 21 (Side bar discussion off the record) 22 THE COURT : We'll adjourn for lunch. The jury is excused. We will resume at 2 : 20. Counsel remain for a moment. You may be e xcused. SOUTHERN DISTR ICT REPORTERS. U.S. COURTHOUSE FOLEY SQUA RE. NEW YORK. N.Y

13 Smith - cross THE WITNESS: Thank you, sir. 2 (Jury e xcused; witness excused) 3 Counsel, I have rulings, hastily 4 made rulings on the depositions that you gave me yesterday 5 e vening. Are these int ended for today? 6 MR. BOIES: I think we wouldn't go much beyond 7 the Moore deposition. We could start one of those. Cover 8 is pretty short. 9 I have Cover..and Gattozzi with 10 marginal markings showing my rulings. 11 I read through Demma and it's my impression t hat 12 the offer of Demma's testimony or Demma's deposition is 13 really scraping the barnacles off the bottom of the barrel 14 of relevance. I have great difficulty seeing any value 15 whatsoever to Demma's testimony. I am not sure that I am 16 in a position to rule on the obj ections because I s a w t hese 17 repeated references by the plaintiff to see memo and I only 18 realized a few moments before court began this morn i ng what memo wa s being referred to. I really think that it is so peripheral as to be quite without value. The issue of whether General Westmoreland was, as he testified, ambushed or rattlesnaked really is not illuminated in any fashion by whether he had access to or even looked at some documents in the mi litary history center. SOUTHER N DISTRICT REPORTER S. U.S. COU RTHOUS E FOLEY SQUARE. NEW YORK, N.Y. _

14 Smith - cross There is no question on his own testimony that 2 he was told certain things about the subject matter of the 3 interview. What his point is, as I understand it, when he 4 says I was rattlesnaked, is that he was not told that when 5 he was interviewed or when the program was created he was 6 going to be the subject of a very sharply focused critical 7 attack. 8 Now, Demma at the most shows that some documents 9 were available to him and possibly ~hat he looked at some 10 documents, although they are not identified with great 11 precision and I think there may also be a problem, although 12 there may be a solution to it as well, as to the date when 13 he looked at those documents. Some of Demma's testimony as 14 to whether it was before or after the interview seems to me 15 to be beyond Demma's competence and to be assumption on 16 Demma's part, perhaps accurate, perhaps inaccurate. 17 But the fact that he looked at the documents, if 18 he looked at them, the fact that he went there and withdrew 19 certain documents has nothing to do with the issue of 20 whether he prepared himself in the manner of one who knew 21 that he was going to be subjected to very sharply focused 22 critical attacks or whether he looked at the documents for 23 a general brush up on background and went to the interview 24 never suspecting the nature of the attack that was going to 25 be l aunched against him. SOUTHERN DISTRICT REPO RTERS. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y. _

15 Smith - cross MR. BOIES: I think there are answers to the 2 issues that the court raises. 3 For one thing, I think Mr. Demma quite clearly 4 testifies that General Westmoreland went through the same 5 documents both early and late. 6 Before and after? 7 MR. BOIES: Before and after. 8 The interview? 9 MR. BOIES: The intervie~, yes. 10 MR. BURT: Doesn't answer MR. BOIES: If I could, your Honor, clearly 12 General Westmoreland by his own admission was aware of the 13 thrust of the interview after the interview took place. 14 He testified on the stand that if he had known 15 what was going to happen ahead of time he would have gone 16 an"d done some research. In fact, it appears from Mr. Demma's 17 testimony that he did the same research both before and 18 after. Gi ven the position taken by the plaintiff and successfully taken by the plaintiff with respect to the role of so-called false exculpatory statements there are a number of statements that General ~iestmoreland has made with respect to when he went to the military history center, who selected out the documents and the like that are inconsistent with what Mr. Demma testifies. SOUTH ERN DTSTR ICT REPORTERS. U.S. COURTHOUSE FOLEY SQUARE. N EW YORK. N.V. _

16 Smith - cross With respect to whether the documents are 2 identified with precision, at least certain of the 3 documents are identified actually by document number in the 4 deposition. 5 I agree that the Demma deposition does not go to 6 the substantive heart of the case in the sense that Mr. 7 Demma really has nothing to contribute about whether or not 8 there was a deception by MACV or whether or not -- or how 9 the CBS broadcast was prepared. But I think he doe s 10 testify about the things that I mentioned. He also 11 testifies, for example, your Honor, about the access of 12 General Westmoreland to the records both before and after 13 the interview and indeed at a point subsequent to the 14 commencement of the litigation. 15 He testifies about indeed the unsupervised 16 access of 17 Did General westmoreland say that he 18 had not looked at any documents prior to his interview? 19 Did he testify to that? 20 MR. BURT: No, your Honor, he did not. 21 MR. BOIES: I don't think he testified to that, 22 certainly not in court, your Honor. 23 At his deposition -- I would have to look at 24 what he test i fied at his deposition. I do know at his 5 deposition he testified that certain documents that he sent SOUTHERN DISTRICT REPORTERS. U.S. COURT HOUS E FO LEY SQUA RE. NEW YORK, N.Y. _

17 Smith - cross to Wallace and Mr. Crile that have been admitted as part of 2 a letter that he wrote were documents that he went to the 3 military history center and that somebody there -- he may 4 have even identified Mr. Demma -- selected out for him. 5 Mr. Demma, the court is aware from reading the 6 deposition, testifies to the contrary. 7 You mean he picked them himself? 8 MR. BOIES: Yes. 9 My point is Qot that there aren't a 10 few fragments that have some tangential bearing on the 11 issues. My point is rather that they seem to be awfully 12 weak in their bearing on the issues. When he says that he 13 was rattlesnaked, my understanding of what he means is that 14 he was not warned in any way that he was going to have to 15 defend himself against a well prepared and sharply focused 16 attack, not that he didn't know that the interview would 17 have something to do with enemy numbers in 1967 and he could have had the documents in his own study the whole time. That wouldn't bear on the question whether he was of a state of mind that was warned as to the kind of preparation that he would do with the documents. Even acknowledging that Demma's testimony, if the problem of dates are sorted out, even if Demma's testimony indicates that he took certain documents out SO UTHERN DISTRICT REPORTER S. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK. N.Y

18 Smith - cross before that doesn't mean that he studied those documents in 2 a manner in which one would who felt that he was going to 3 have to preserve his honor through studying t hose documents. 4 MR. BOIES: Although I think his testimony, at 5 least with respect to infiltration, your Honor, is not 6 merely, that is General westmoreland's testimony, is not 7 merely that he didn't realize he was going to be the 8 subject of a focused attack -- I think this is even in the 9 trial testimony that he didn't realize that infiltration 10 was going to be an issue. 11 Does the letter talk about 12 infiltration, the Crile letter? 13 MR. BURT: No, I don't believe it does, your 14 Honor. 15 MR. BOIES: r think it talks generally, your 16 Honor, and I think it is a matter of interpretation, at 17 l east according to the plaintiff as to whether it raises 18 infiltration. 19 Infiltration is a part of enemy 20 strength? 21 MR. BOIES: Yes, of course, it is, and I think 22 we would s a y that it certainly raises that issue. But he 23 has taken a contrary view and I think that we s e e from Mr. 24 Demma's (Jeposition that at the t i me he knew more than he admitted on the stand he knew was the focus of the intended SOUTHERN D IST RICT REPORT ERS, U.S. COURT HOUSE FOLEY SQUARE. N EW YORK. N.Y

19 Smith - cross 8346 I interview. 2 I didn't mean to convey that I 3 thought that Demma's deposition was so irreleva nt that a 4 judge would have to exclude it. I meant to convey rather 5 that I thought it was so irrelevant that it didn't seem to 6 add much except smoke. 7 MR. BOIES: We put it at the bottom of the pile B of the three. 9 I just thought you might want to 10 consider those observations before you decide how to 11 proceed. 12 I gather there ' s also a discussion as to whether 13 he's supposed to testify live if he is testifies. We'll 14 deal with that later. I don't think it is pressing. 15 MR. BOIES: We'll deal with that later. I agre e 16 it is not pressing the Cove r? 19 MR. BOIES: Shall I give you the Gattozzi a nd Thank you, your Honor. 20 (Luncheon recess) S SOUTHERN DISTRICT REPORT ER S. U.S. COURTHOUSE FOLEY SQUARE. NEW YORK, N.Y