souther~ nistric~ rrw - vietnam.ttu.edu · 2 the office of r.cono!toic research, which was n,y...

1 UNITED STATES nISTRTCT CODRT

2 SOUTHER~ nISTRIC~ OF rrw VnPK

3 ----------------------~-----------~-x 4 GENERAL WILLIAM C. "~STMOPE~A~D,

5 Plaintiff,

<; v. P,2 Civ. 7913 p~1L

8 nEORer CRI~F, MrCHA~L W~~LArr an~

9 S~.MUEL A. 1l.!)AMS,

.10 !)efendant~.

11 -----------------------------------~x

14 (Trial resun,ed)

15 (Tn ODen court)

16 THE COUPT: rood morn in".

17 All set to proceed?

lR MP. ROlES: Ye~, your Ponor.

19 THE COURT: Call the jury, "lease.

2r) (.Jury present)

'l'!l~ COUPT: rood morn i n", men,'">ers of the i ury.

22 THE JURORS: roo~ morninq.

23 • 'I'HI': COUPT: '1r. 1=Inies your neyt ~dtness is?

24 MR. 1'\OIES: Mr. ,Sniith,who is in the witness

,:; chair.

SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE.

FOLEY SQUARE. NEW YORK. N.Y. - '91.1020

Sn, i tJ, - cH rect

1 TIl~ ~f)rtP')': All r iaht. Swear the wi tness,

2 please.

4 called as a witness hy the defendant, havina heen

5 duly sworn, testifieCl as follows:

6 MR. qOI~S: rood n,ornin9, your Ponor. roo~

7 n,ornin,) n,en,bers of the jury.

8 THE ,JrJROPS: roon n,orn i no.

9 nIRFCT ~X~MI~ATIOM

10 BY "R. ROlES:

11 Q. Good n,ornina, "r. Sndth.

12 I-'r. Sn,ith, would you briefly identify your

13 educational backaroun0?

14 A. I receiveCl a 9achelors Cleqree in political

l~ science fro'l, !'\oston university in l.q~l.

l~ In 19~~ r was awar0e~ a ~asters denree in

17 soviet studies hy SyrRcuse University. That nronran,

18 consisted of a year's study of Russian lanauane that

19 Syracuse flniversity ran for the uniteCl States ~ir "orce, a

20 SU!T,n,er at the l-'inCll ehury CoIl ene, Russian r,annuane "rhool,

21 plus the course work T took for the Clegree at Syracuse.

;>2 Su:,sequent to !T,y e'l , nlo~, ent at the ~oencv, the

23 etA, I w. nt to nrown University on one OccRAion for two

24 years qrar.uate stu~y in econonoics where Clurino th~t tin,,,,,

25 nuring the seconn yenr, I was an instructor in eroroonoics. SOUTHERN DISTRICT REPORTERS. U.S . COURTHOUSE

FOLEY SQUARE , NEW YORK. N.Y. _ 791.1020

SlTlith - direct

1 J also was a student at the Jnrustrial ~olleap

2 of the Arnled ~orces. This is a sister colleqe to the

3 ~ational War Colleqe locate~ at ~ort Mc~ear in Pashinaton.

4 A lin,jted nun,ber of civilians atten~ this senior n,jlitary

5 school.

fi Later in the ~Iid 70's I soent a year at Harvard

7 University at the Center for International ~~fairs where T

P was a resident fellow aiving lectures and doinq research.

o 0. f'ilve you pver served in t>,e anTien forces

10 yourself, sir?

11 A. Yes, I have.

12 0. When what is that?

l>. • I went in the Air ~orce riaht aFter

14 underqraduate school and served for ilnproxinlately six

l~ and-a-half years.

16 When J was discharoed in lqfiR I was il technical

17 sergeant.

18 o. I'Jhen did you ;oin the CI-"?

19 ". I joined the CIA in the fall of ,q~R when J

20 finished nly Air Force tour.

21 n. I want to focus in on the "eriod of 10~7 to 1 0 77.

22 Rut heFore T do that let n,e as~ W>'ilt vou ri~ at the CTa

23 f&llowinq that neriod

24 ~ . Following 1 0 77 I went to the -- first T snent

the year ilt the Industrial Colleqe of the _r~er ·orcps. SOUTHERN DISTRICT REPORTER S. U.S. CDUR THOUSE

FOLEY SQUARE. NEW YORK. N .Y. _ 791.1020

T

fO!T, i t h - d ire c t

1 returned fron, that assionn,ent to oroani ze a nel> hranch in

2 the Office of r.cono!Toic Research, which was n,y parent

3 orqanization at the Aaency to study the expecte~ eneraY

~ problen! wh i ch suhseouent 1 y ensued.

5 After orqanizino that branch and runninn it for

6 a year I became an act inn national intelliaence officer.

7 This was then a sta~f job I>orting ~irectly for the then

P Director Colby a~visinq at the DrI level on the collection

9 and procllction of econon,ic inte11 inence \o1OrlClwire.

10 Dllring that period I had a nlln,ber of assiann,ents

11 that resulter. fron, the fact that the sta~f position was at

12 the DCI level.

13 For instance, r was invited to particioate in an

14 energy policy conference at Camp Davi0 that hecan,e known as

15 as President Ford's Camp David enerqy conference. II"

15 attendance were the princioal econon,ic anr enernV

17 policymakers in the Ford a~n,inistration, forn~r ~enator

18 Roqers ~orton who ha0 been n,ane ~ecretary of Interior bv

19 President Ford, Frank 7arh, the federal eneroy

20 administrator which was the iob that orecene,", the fOllnrinn

21 of the Denartn,ent of Energy, lo,lan r.reenspan, chil i rn,an of

?~ Presinent "'orn's econonoic ilc'visor ann an, has~",r'or "'Oll,

23 Menders and others.

24 o.

25 A.

How lono did you hold that nosition?

That position I hel~ for a year he'ore T went SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK . N .Y. - 791.1020

Sn,i th - n i rect P?~?

1 off to Harvard.

o. It was aFter servinq as actina national

3 intelligence officer you spent the year as a Parvar~ ouest

4 lecturer?

5 1>.. Yes.

6 o. What did you do after serving at Parvard?

7 ~. . Io]hen I returne0 fro'l, flarvard I returne0 to n,y

parent office again, the Office of Fconorroic Research. I

9 then took over a division which incluned the suoervision of

10 the enerqy branch that Thad heen in before, "Ius a nun,her

11 of similar branches deal ina with worln trane, monetary

12 affairs, <:Ho>lth, worln econonoic qrowth and this sort of

1, thinq.

1~ o. Durinn what period of tin,e din you nO that?

]5 .21 • That was fro~ , "'V retllrn -- 1 Q7" an" that la<;ted

I S for a~out six years.

17 0. So that wOllle'! have been until. ahollt ]"'P??

18 21. Yes.

19 (' . What die'! YOll do comnlenc i n,? in ]Q<ln

20 11. The last two anrl a half years of n,y qovernn,ent

2] service were -- I >las on neta i] fron, the ~T)I to the

22 Department of ~neray as chief of the enerny dpnartment's

23 intel]in~nce nivision. That was kind o· 11 cap 0 [ career

before I retired ann in that inb. ('If course I was

?~ providinq close support throuah written memoranda and SOUTHERN DISTRICT REPOR TERS. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK , N.Y. _ 791.1020

Sn,ith - direct

1 briefings to the secretary and his st~ff.

2 Q. Do I take it you retired at ';on,p noint fro'l ' the

3 eJl\?

A. Yes. I retired this January, iust this ~anuarv

5 after a tot~l ,;ervice of ahout '4 years, Air ~orce ann ~T~.

0 . You joined the CIA in lO~P; is that rioht?

7 lI.. That's correct.

R 0. An~ do you have nny nresent position?

q A. I have accented a nosition at the Lo,; .lIlamo,;

10 National Laboratory in Mexico as associate director of

11 their forecasting and analysis nivision and J will no there

12 and begin that en,ployn,ent sO'l,eti1T,e in "ehruary.

13 0. I would now like to go back and focus on the

14 period of 1067 to 1972.

15 T)ic1 there co~,e a tin,e when you assu1T,ec'l certain

16 du ties with resnpct to South uietnan, intell i<'encp?

17 A. Yes. I>"hen I rpturner teo the office of econo!1,ic

lR research fro'l, Rrown, for tl'O years I worken ~s senior

19 analyst on the ~'ieldle F:ast/I'orth Africian are",. lifter

20 about two ye",rs during the snring of lo~7 I waS asked if J

21 would 1 ike to switch to the Vietn,l''' prohlen. 1'lnd ora~nize n

22 branch ann an oroanization to do in-nenth resenrch on the

73 strenath and capabilities of our adverse ",rea, the V~, l'U1\,

24 in that area.

25 0 . Who asked you to no that? SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK. N.Y. - 791·1020

Sn,ith - direct

1 )1,. The director of n,y offi~e asked n,e to do that,

2 yes.

3 o. \-1'10 \-Ias he?

4 . 1\ • That's Maurice Ernst •

Did there con,e a t hie when you did organ i ze sllch

6 a hranch or Ilnit?

7 A. Yes. J aqreed to take on this resnonsibility

Rand in,n,ediately heqan, since it ~Ias a nel<' hranch J h,," to

have helD, "nd J i~,n ,ediately beaan with the heln of the

n,anaaen,ent of n,y office to rec-rllit the hest neonle I coul'"

11 find.

12 So I henan workina in that area i'lon,ediately in

13 the spring of ·~7.

1~ o. ~ho were some of the peonle that 'lOll recrllited

15 to the hranch?

l~ A. The size of the hranch was v"riouslv ten or a

17 dozen people and J was fortunate to have this ~ind of

18 backing. The first two neople I hired were ~ayne ratterdam

1'1 and Davi" Shields, hot.., n,en with who'l, J had .,orl{ed hei'ore

20 and who subseauently had served a full tour in saiaon at

21 the 1\Clency' s research con,oonent. So J was see~inq neoole

22 whon, J hac" confidence in and ~Jho h"c' Vietnan, exnerience.

23 I also hire" nOUq Parry who 'vns conlin .... into ollr

2~ office at the ti"e with an outstanc"irn ratino, havina none

2'i through the Aaency's two year carepr trainina oroqr,,", . SOUTHERN DISTRICT REPORTER S, U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK. N.Y. _ 791·1020

"n,ith - nirect

1 already on the ioh I recruiten for n,e a man with exnerianre

in Vietnan, analysis Joser>h Stun,p. Those were t~e first

, four peonle.

4 Later on that fall, after a nun,ber of other

5 things had transniren, I was ah1e to talk ~am _nams into

coming into working in our branch. 0f course, that was a

7 real olus because Sam had already Ian a lot OF ana1v~iral

q exoerience on the thinqs we were goino to be focusino on.

0. nid you have an oonortunity to wor~ closely with

In ~~r. Ar1a:1,s after the tin,e he joinen the .c;outh "ietna~, '>ranch?

11 /1 . Yes. I foro at halo' lono c;an' was in the hranc h .

12 It strikes ~,e it was a year or so. We literally worked

13 tooether every day when one of us wasn't traveling. The

14 branch in that size and being a hranch chief of that size

15 unit you have your hands in every ana1vst's work aln,ost

1~ eve r y jay .

17 I wouln say we had a close relationsnin

18 analytically during that nerion.

19 (1 . Dir' you forn, a iur'qn,ent as to "r. ~dan, s' ahl1itv,

2n con'netence ann i nteor i ty?

21 Yes, J r'ld.

'-2 ~efore <;ary, can,e Into th e hranch of rourse T har'

23 a"chance to ohserve his work nersonallv 2nn T h an t a )~en to

2/ each of his n,ost recent suoervisor.s, "eoroe IIllen fron,

25 reo rae CArver's S~VA staFf anr' npan --SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK . N .Y. - 791.1 020

Sn, i th - c i rect

Your ~onor, J ohiert to this line

2 of testinlony.

3 T~E COllRT: The question was as to Your own

4 judCl~lent that you fornled.

5 Does that cover your objection?

6 YeS, your Honor.

7 .r.. • I was going to Follow that uo by sayino that all

~ of the goon thinos --

q "y noint was to tell you not to

In follow it up hy saying but simnly to answer the 0uestion

11 which is what ju~anlent did you fornl as Mr. Roips asked you.

12 A. J fon,er the i ullcl!Tlent that <:anl was one of the

13 finest analysts that J ever worked with. Pirst of all, he

14 was knowle~qeahle on the subjpct ann that was of arest use

16 Secon~lv, he was full of vioor, alwAYs unbeat

17 about getting the wor~ ~one, inteJliqent an~ coonerativp

10 with other analysts and last but not least of which is very

lq ~,portant in this kin~ OF work he w?s a verv ooo~ w~iter

20 and one of the princinal johs of a supervisor at that level

71 of suoervision, doi~a research is helDin~ analysts with

7? their writinn, qettinr, thinos really nac~ar,er., whether it's

23 a'n,e"orandu~, ",ake beina it cris" or a Ion" research renort

24 ",akinr, sure it's pronerly docunlente~ an~ ~an, w~s a nood

2~ writer.

SOUTHERN DISTRICT REPORTER S. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK . N.Y . - 791-1020

S,,,ith - direct P 2 d P

He received fron, n,e fOr'Ttally outstanr1 ino ratinos

2 when I had to rate him.

3 Q. This would have been in IOhR?

4 A. Rouohly, the year lOhR.

5 o. Mr. Smith, I helieve the jury has heard Mr.

h Adams at on e noint described aR a n,ental case. ~id yOU s e e

7 any evidence of that?

8 A. HO. I did not see any e v idence of it and it

9 would be hard for n,e to soeculate as to why anyone would

10 say that.

11 o. Thi'lnk you.

12 Let me ~o back to lqh 7 .

Were you aware in IOh7 there w~s a Uation~l

14 Intelligence Rstimate or ~necial NationRI Tntellioence

15 Estimate in nrenaration?

. r., • Yes, I \·]as . ~ln l ost sinlu] taneotlsl y wi th '"flY

17 acceotance of the io~ of oraani~inq the ~outh "ietnR"'

IP branch and in the office of econon.ic research the first

19 drRft of that estimate was available. It had heen drafted

70 by a Grafter nan,ed ~obby Layton, a senioT staff 11le"ther of

21 the Office of NRtional ~stil1 t ates and r was ahle to ~eoin my

n duties • .>ith evaluatinn thi'lt draft alono wit h " nuntber of

23 oEher neonle at CT~.

2l lind I was ?':lle to fo1101. un the -- n,y first

25 perusal of that draft noing back and readin" the history of SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUS E

FOLEY SQUARE, NEW YORK. N .Y. - 791·1020

Sn,ith - direct

1 estin,atina. on this subiect which went hac": over a nun,c,er of'

2 years ~nd that sort of thing.

3 THE 'COURT: Let n,e as": you, Mr. Snti th, to

~ confine your answers to what the ouestion as":s for. ,1ust

5 listen with c~re to the nuestion ann w~it for the next

6 ouestion rather than goina. on to tell a f'urther story.

7 Just answer what the question calls for without oolnn on to

8 n,ore.

9 The imoortance of that is that counsel on the

10 other side has to have fair opoortupitv to ohiect if a

11 question 'loes into son,ethino t'1at counsel thin":s is

12 improper. rounsel doesn't have that opnortunity if you

13 wander on fron, the ouest ion to further thinos.

14 So, olease lin,it yourself to iust what the

15 question calls for.

l~ RY ~R. qOJfS:

17 Q. What is the nurpose of a ~ational TntalJiaence

18 fstin,ate or Special ~ational Intel! iqence ~stimate?

1<1 A. The 17ational Intellioence fstimate is renarden

20 is the highest forn, of puhlishE'd estimate th~t thE'

21 intelligence con,n,unity puts out. There are I beliE've

22 son,ev,here only ~o to "0 national inte11ioence estimates

23 done annually by the intel1 iqence con,n,unity.

24 ThE'Y are purposefully rE'stricten to the q,ost

25 i"portant topics. ThE' list of these topics is anree~ to bv SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK . N.Y. - 791.1020

Sn,i th - c1 i rect

1 the director of ~IA n,eeting with the directors of the other

2 n,en,bers of the intelliqence conon".mity.

3 The Durpose of these estimates is to provl~e a

4 succinct yet in-depth picture of high priority issues

5 facing nat.ional policyn,akers.

To whon, flo speci?l national Intelllqence

7 estin,ates or national intelliaence estimat.es qo?

8 A. All n?tional Intel1inence estln,ates are sent. to

9 recipients over t.he siqnature of th~ nCI, nlrector of

10 Central Intellinence and re~e~nina unon the sneclflc tonics

11 they go to departn,ent heads, that is secretarie~ of state,

12 secretaries of defense and to the ~hite ~ouse where they

13 are handled by the President's special a~sistant for

14 national security affairs.

0 . Was c:!'IF: 14-3"7 the on1v "atlonal InteJllaence

16 F:sth,ate or c:neclal Patlonn] Tntellinence Fsti!T,ate on ene-.,v

17 strength in Vletna~, that was nrenared in 1 q<;7?

18 ll . • Yes, it was.

19 0. And do you know whether that c:~IF 1'-3~7 rln no

2n to the Secretary of State and the cecretary of nefense ann

21 to the White Pouse?

22 ~9. nORc:~p: nhiection, your "onor.

23 ·,.PF rl)[lR1': C'ust3ined.

O. S~'Il' ld-3h7 was nuh11shed in "oven,her of l.Q~7,

2" correct, sir?

SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK. N.Y. _ 791.1020

Sn.i th - direct R7"1

1 ~P E ~OURT: You D'Ry as~ hiu, whether it was his

2 understanding at the tin,e that it would ~o to those nlaces.

3 o. ~]as it your understandinq in or a;,out ~love'!,her

4 of 1967 that SNIE 14~3fi7 would 00 to the ~ecretary of State,

5 the Secretary of Defense and to the "'hi te )-louse?

r... I can't in,aaine there would he any douht about

7 it.

o. Prior to ~loven,ber of I Q1',7, had an y

9 renresentatives of your staff attende~ any meetinqs in

10 connection with SNIF ]4-367?

11 A. Pr ior to ~l ove!1 ,her?

Yes. I <lttended considerable "eetinas during

13 the SU!T,n,er. First the in-house meetinqs on which ~JA staff'

It. were scrubbing this first draft which included exposure of'

1~ the draf't to the board of national estirr,ates.

1<; Subse~uentl y , renresent<ltives !T,eetinas <It ,·'hic h

17 we ,,'ere 'ioined by representat.ives frorr, other aaencies. Tt

18 was during this time that I learned just how f'ar this

19 estin,ate was fron, what '11>,rv was >1il J Ing to accent.

MR. DORSEN: Move to st~ike.

21 THE COURT: Please, recall my instructions that.

'2 you stick to what the question asks for.

23 MR. onPSEN: Move to stri~e nart of the reseonse.

THE COIJpm: Sustained. The jury will disreaarr.

25 the last few remarks. SOUTHERN DISTRICT REPORTERS. U .S. COURTHOUSE

FOLEY SQUARE. NEW YORK. N .Y. - 791-1020

Sn,ith - r.irect

1 (1 . Mr. Sntith, in the sun,n,er of 1')!;7 were you ?ware

2 of what the CIA was proposing for inclusion in ~~ IE 14-~~ 7~

3 A. Yes, ! was.

4 o. Were you aware of what ~ACV was proposing for

5 inclusion in SHIE 1~-~67?

6 lI. I became aware of what MACIT was proposing for

7 inclusion in that estin,ate during the course of the sum'T,er .

Q. Were they close together or far pnart or

9 so~,ewhere in between?

10 A. They were so far apart that they were totally

11 ireconcila b le.

12 Q. Die' there con,e a tin,e in which the CT7>, and 1"1""\7

13 agreed as to what would 00 into S~I8 14-~67?

14 A. That anreen,ent only can,e ahout -_

IS TP," rOllRT: The question is sin,ply nic1 there

Hi con,E' a tin,e when aareen,ent was reached.

17 .~ . Yes, there c1iel.

18 Q. \-'hat was the nature of that aqreeTT,ent?

19 MD. DnRSR~: Obiection, your Ponor.

20 Tf'E COURT: You n,ean what were the terTT,s of the

21 aqreen,~nt; is that what you are askina~

22 (1 . Let !T,e ask how that aoree~'E'nt caTT,e ",bout.

23 MR. DnRSEI': nhjection, V0 ~ r Ilonor.

Tf'F CO UR T: ~eJI, that question is awful1v broar.

'5 in the sensE' that it doesn't indicAte whether the witness SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE

FOLEY SQUARE, NEW YORK. N.Y. - 791-1020

Snoith - nirect

1 will be testifying to matters in his own ~nowlenae.

2 Furthern,ore, we have had several discussions

3 that I an, sure you ren,e~,her about relevance on issues

4 related to the ma~ing of that aqreement.

5 BY ~R. ~OI~S:

6 o. Let n,e ask, l"r. Sndth, this rrelfrr,inary nuestion:

7 Do you ~now who on behalf of the CIA arriven at the

R aareen,ent wi th MACV?

q ~1R. DORSE' ) : Objection, vour Ponor.

10 THE COURT: Overrulen.

11 A. During the course of the neootiations, ~hich

12 incluned an invitation to t-1ACV to con,e to \')ashington to

13 explain to us why the estimate should contain their views

H and not ours, a tean, of CIA people went to Sainon to follow

15 that U? ~y understanding was that after several days __

16 TH E ~nURT: The aupstion is simply who ••

17 Who headed that team?

II! ,. .. (;eorge Carver heaned that team.

19 MR. BOIl'S: May we anproach the side for 'ust a

20 ",o~,ent, your Ponor?

21 Till' COURT: Yes, you !nay.

22 (Side bar)

23 • MR. ROIl'S: My proble'l, on relevance is t ha t we

24 recently got fron, the plaintiff a renacted coPy of the

2S broadcast in which the nlaintiff purported to ta~e out


FOLEY SQUARE, NEW YORK. N.Y. _ 791-1020

Sn, i t h - e'! i r ec t

1 those portions of the broac'!cast that the nlaintiff hel ieves

2 not to be relevant. The plainti~~ left in that aortion of

3 the broadcast that tal ks about the CIA caving in.

4 I am now gettin~ to the aoint where if I nass

5 very ~any n,ore witnesses without dealing with that auestion

6 it is going to be difficult for n,e to ac'!dress the evic'!ence

7 on what I think it is clear that a nun,ber of hiqhly nlaced

8 CIA people will testify was in fact the caue in.

9 TI'E COURT: I think the problen, is this:

10 couale of days ago, quite recently, -- this is not the nuh

11 of the problelT' but it's son,ething that aeripheral.

12 A couple of days aao we discusser. the auestion

13 whether the defendant had obiecter.. I think you undertook

14 to .go bac~ and look in the recorc'! to see whether the

15 defendant had objected or what had haonenec'! at the tin,e

16 that Carver was on t he stanr ane'! Carver did not testifv,

17 althouah initially the plaintiff nrofferec'! such testin,ony,

18 on the subiect of whether he had received cave in orders

20 Now when we had this discussion a couple of days

21 ago none of uS remembered very carefully exactly how that

22 result had been reached althou~h I think evervone aoreer in

23 our n,en,or ies that that ','as the result that had heen reached.

24 Whether it was or whether it was not or whether the

25 defenc'!ant ohiected or e'!inn't, the issue that T thinlc on SOUTHERN DISTRICT REPORTERS. U.S. COURTHOUSE

FOLEY SQUARE. NEW YORK. N.Y. - 791.1020

Sn, i th - c'lirect

1 your oh;ection I had SOUq~t to avoi~ was this ~usin~ss of

2 getting into son,e trial of whethE'r instructions can,e fron,

3 on high in the CIA or not, which is of either nericheral

4 relevance or none at all to the suhject matter of the trial

5 but which could involve a areat, big, fat risnute as to how

'i Carver can,e to ll,al<e the aqreell,ent that he clid.

7 It seen,s to n,e that I wouln have no nroblen, with

B your as~ing this witness whet he r he was aware of any

9 inforn,at ion that sUDnorten the ilnree!T,ent reilcher1. In filct,

lD off the top of my head, I would ~ant to hear the nlaintiff

11 on this before n,aking a ruling. I am not sure that I woulr1

12 have a proble!', with your asking the witness or elicitinq

13 fron, the witness tbat froll, hi s Doint of view, aiven his

14 assess~,ent of the intel] igence infor!T,a tion, he regardec'l the

15 agree!T,ent as a cave in which I think is nenerally il 'I,att:er

l~ of o?inion within his anpronriate testi.,ony.

17 But I think what we want to avoicl is the nuite

III irrelevant issue of whether this aqree.,ent reached hy

19 r:arver, whether it was a cave in or a honest aqrel?lT,el"t, ,,'as

20 son,ethinq directed by Heln,s or not.

21 ~.1R . ROTES: I thinl< I can acproach it without

22 any proh]e" fro~, n,y stanr.point that Wily, vour ~onor •

23 •

24

THF r:'WPT: ()j<:ay.

(Continued on next paqe)

SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUS E

FOLEY SQUARE, NEW YORK. N.Y. _ 791_1010

bs2 Smith - direct 8256

1 (In open court.)

2 BY MR . BOIES:

3 Q. Mr. Smith, in 1967 how did you personally view

4 the agreement t~at was reached in Saigon in September of

5 1967 as to what would go in SNIE l4.3-67?

6 A. First of all, I viewed it as a travesty in t e rms

7 of the appropriateness of the manner in which it was done.

8 THE COURT: I think the question is limited to

9 your a?praisal of the terms of the <!!greement.

10 In giving your answer, don't talk about any

11 speculation or knowledge that you may have of w~at internal

12 communications to the CIA led to the agreement. That's not

13 relevant in this trial and you're not being asked that.

14 I think Mr. Boies' question asked you simply for

15 your ap?raisal of the terms of the agreement, whether you

16 think that the finnl published result of the NIE t hat arose

17 fro!l\ the agreement was accurate, inaccurat e , whatever you

18 would say about its correctness in assessing the enemy

19 force.

20 Am I putting your question correctly?

21 MR. BOIES: Yes, your Honor, you are. I am

22 asking the witness for his personal evaluation of the terms,

23 an~ not how it ca!l\e about thnt those terms were agreed to.

24

25

THE COURT: Mr. Dorsen, you had an objection?

MR . DORSEN: Yes, I w~nted to move to strike any


FOLEY SQUARE. NEW YORK. N.Y. _ 79 1·1 020


1 reference to the witness' testimony that dealt outside of

2 the question.

3 THE COURT: The witness started to say something

4 about how it came about. He did not get very far with his

5 answer. The jury will disregard that completely. That's

6 not what the question is about.

7 A. I regarded the published estimate as completely

8 unsatisfactory, and an estimate that should not have been

9 distributed to po1icymakers of our government because it

10 failed to properly depict the strength and capabilities of

11 the enemy we faced in Southeast Asia, which was its purpose.

12 Q. Did you believe that that estimate incorporated

13 the views of the CIA, as you understood them?

14 MR. DORSEN: Objection, your Honor.

15 THE COURT: Sustained.

16 Q. As you understood in 1967, did SNIE 14.3-67

17 anopt the position that MACV had been advocating in the

18 summer of 1967?


20 THE COURT: He may answer that question as to

21 his understanding of the position that MACV had been

22 adopt i ng .

23 A. It reflected almost completely the position that

24 I sa\o/ MACV argue for at the meetings we had with MACV in

25 August of 1967.

SOUTHERN DISTRICT REPORTER S. u.s. COURTHOUSE

FOLEY SQUARE. NEW YORK. N .Y. _ 791.1020

52 Smith - direct 8258

1 Q. When you say, "It reflected" are you referring

2 to SNIE 14.3-67?

3 The final published version. •

A. Yes, yes, I am.

4 THE COURT: May I interrupt something for

5 clarification?

6 Do you say that you were present at meetings

7 with representatives of MACV in August of 1967 at which the

8 special national intelligence estimate was discussed?

9 THE I'1ITNESS: Yes, I \-!as ......

10 THE COURT: Was that at Langley?

11 THE WITNESS : Yes, that was at Langley.

12 THE COURT: And you heard MACV representatives

13 state a position as to what the NIE should sta te?

14 THE I'i'ITNESS: Yes, I did.

15 THE COURT: You may proceed.

16 Q. An6 you read SIIIE 14.3-67 at or about the time

17 it was published, did you, sir?

IS A. Yes I I did.

19 Q. I want to focus on a couple of different aspects

20 of SNIE 14.3-67.

21 Was there a disagreement between MACV ann CIA

22 during the summer of 1967 as to whether or not the self

23 defense 8nr. secret self-defense forces should b e quantified?

24 A.

25 Q.

Yes, there was.

And how did SNIE 14.3- 67 resolve that?


FOLEY SQUARE. NEW YORK. N.Y. _ 791.1020


1 A. SNIE 14.3-57 resolved that by following the MAC V

2 position, which is that the self defense and secret

3 self-defense should not be quantified nor included in any

4 way in the order of battle.

5 Q. Were you aware of anY intelligence that

6 justified that decision in SNIE 14.3-67, sir?

7 A. No, I was not aware of any intelligence or

8 analysis that justified that position.

9 THE COURT: In your opini~n7 The question

10 relates to your opinion.

11 A. I was not aware of any analysis, sir, that

12 justified that position, in my opinion.

13 THE COURT: I simply wanted to clarify for the

14 jury that in ans\~er ing that quest ion the wi tness is

15 ex~ressing his o~inion of the intelligence info~mation.

16 Q. And that opinion of yours, sir, wa s based on the

17 ,lork that had been done by you a:1d your staff in t h e South

18 Vietnam branch; is that correct?

19 MR. DORSEN: Objection, your Honor. LeacJ ing.

20 THE COURT: I think it is leacJing, but you may

21 ans'''er.

22 A. That was the o?inion developed ov e r the course

23 of the summer and on into the fall, and included the work

24 that the members of my branch were doing, as well as the

25 work that a number of other analysts had done who were

SOUTHER N DISTRI CT REPORTERS. U.S. COURTHOUS E

FOLEY SQUARE. NEW YORK . N .Y. _ 791· 1020


1 either not th e n yet in my branch, for example, Sam Adams,

2 and others.

3 Q. Was there a disagreement in the summer of 1967

4 between MACV and CIA as to what the estimates should be for

5 categories of the enemy that were included in SNIE 14.3-67,

6 like the guerrillas, as an example, or the administrative

7 services forces?

8 A. Yes, there were.

9 Q. And hOvl did SNIE 14. 3-67 ~resolve that

10 disagreement?

11 A. It resolved that disagreement by adopting the

12 MACV v iews of what these numbers should be.

13 Q. Were the views as to whst those numbers should

14 be adopted in SNIE 14.3-67 in each case lower than what the

15 C1.'I had advocated?

16 A. Yes, they "Iere.

17 Q. Were you aware in 1967 of any intelligence t hat

18 justified those lower numbers used in SNIE 14.3-67?

19 THE COURT: I meant by the prior comment that

20 you include a reference to his opinion when you ask that

21 question, "~;hich in your opinion justified."

22 Q. Were you aware in 1967, in the fall of 1967, of

23 ~ny intelligence that in your opinion, at the tie G that you

24 were chief of the CIA's South Vietnam branch, justified the

25 lower num ber s for guerrillas and administrative services

SOUTHERN DISTRICT REPORTERS, U.S. COURTHOUSE

FOLEY SQUARE , NEW YORK . N.Y. _ 791.1020


1 troo~s put in SNIE 14.3-67?

2 A. I was not aware of any such information or

3 analysis.

4 Q. You were still chief of the South Vietnam branch

5 when the Tet offensive occurred, were you not, sir?

6 A. Yes, I was.

7 Q. Where were you when the Tet offensive occurred?

8 A. At -- working at headquarters, Langley, Virginia.

9 Q. Did you believe that the-Tet offensive revealed

10 anything one way or another about the validity or

11 invalidity of the estimates of enemy strength included in

12 SNIE 14.3-67?

13 MR. DORSEll: Objection, your Honor.

14 THE COURT: What grounds?

15 MR. DORSEN: I think it's vague and I'm not sure

16 the witness has a foundation for stating what he knows

17 about the Tet offensive. He was in Langley, Vi rginia.

18

19 Q.

20 A.

21 Q.

22 branch?

23 A.

24 Q.

25 offensive?

MR. BOIES: Let me pursue it, your Honor.

You were in Langley, Virginia?

Yes.

And you were chief of the CIA South Vietnam

Yes, I was.

And did you receive intelligence on the Tet


FOLEY SQUARE. NEW YORK. N .Y. _ 191·1020


1 A. ive recei v ed as a matter of course all

2 intelligence, all raw intelligence collected on the war in

3 Southeast Asia ••

MR. DORSEN: Your Honor, I object to the form of

5 the answer. I don't see how he could possibly say that.

6 THE COURT: Well, members of the jury,

7 technically I think Mr. Dorsen is right, but numerous

8 witnesses have testified in this trial, witnesses called by

9 both sides, I believe, have testified that they received

10 all the information that anyone received, and, of course,

11 technically, one can't know that.

12 There may be other people who are receiving more

13 highly-guarded secret information that one doesn't even

14 know they are receiving, but many witnesses have testified

15 that according to their understanding and belief they were

16 receiving that there was to receive, and you may take that

17 for what it's worth in this case.

18 MR. DORSEN: I will withdraw the objection.

19 THE COURT: All right.

20 Q. Mr. Smith, what was your security clearance in

21 1967 and 1968?

22 A. I believe I had all the security clearances that

23 I nee ded to give me all of the information that was

24 available, both collateral and special intelligence.

25 Q. Do I understand your last answer to mean that


FOLEY SQUARE. NEW YORK. N ,Y. - 791·1020


1 you had access to NSA information?

2 A. Yes.

3 Q. And would you describe for me some of the kinds

4 of intelligence that you received and that your branch

5 received related to the Tet offensive.

6 A. I would lik~ to divide intelligence into raw

7 intelligence ano finished or -- finished intelligence. Raw

8 intelligence, which we received a steady flow of, the same

9 steaCly flow that t·1ACV analysts in S1't"igon received, were all

10 captured documents and their translations, all prisoner

11 interrogations or reports from defectors, as well as all

12 raw NSA-type information.

13 So we haCl flown into our building the same set

14 of data; Defense Intelligence Agency, Pentagon haCl the same

15 set of data, also, that was flying into Saigon headquarters

16 for MACV analysts.

17 He did have trouble -- it isn't true that we

18 receiveCl all finished intelligence. There came times when

19 MACV did not share all of its finished intelligence with us.

20 But the raw intelligence, with which to do the job, we

21 receiveCl.

22 Q. Did you, in early 1968, form a judgment as to

23 w~at relevance what you learned about the Tet offensive had,

24 if any, to the validity or invalidity of the enemy strength

25 .estimates includeCl in SNIE 14.3-67?


FOLEY SQUARE. NEW YORK . N.Y. - 791-1020

s2 Smith - direct 8264


2 THE COURT: Overruled.

3 A. I felt that the strength, force and widespread

4 nature of the initial attacks of the winter-s~ring cam~aign,

5 which is what the Tet offensive was, that went on for a

6 couple of weeks, strongly confirmed that the base of enemy

7 strength was larger than that base depicted in the national

8 intelligence estimate.

9 Q. Did you tell anybody tha~ at the time?

10 A. Yes, I did.

11 Q. Did there come a time in which after the Tet

12 offensive the CIA distributed outside of the CIA an

13 estimate of enemy strength higher than that included in

14 SNIE 14.3-67?

15 A. Over the next several months the CIA distributed

16 a number of products that included order of battle

17 materials that were higher than those that had been in the

18 estimates.

19 The first one of those quite soon after Tet, we

drafted in our branch for George Carver to include in his

briefing of the group of advisors that President Johnson

called the wIse men.

That set of estimates included roughly the same

500, 000 to 600,000 figure of overall enemy strength that

ha~ been in the first draft of the estimate in 1967.


FOLEY SQUARE. NEW YORK. N .Y. - 791·1020


1 Q. I want to be sure I have the date of this right,

2 Mr. Smith. This would have been in March of 1968; is that

3 cor rect?

4 A. Th a t meeting was either in February -- I believe

5 March of 1968.

6 Q. In any event, after the Tet offensive?

7 A. After the Tet offensive.

8 Q. And your branch prepared a briefing paper for

9 Mr. Carver?

10 A. That's correct.

11 Q. And did Mr. Carver tell you to whom that

12 briefing paper was to be presented?

13 MR. DORSEN: Obj ect i on, your Honor.

14 THE COURT: You're aSKing prior to the

15 pre?aration?

MR. BOIES: Yes, your Honor.


18 A. Either Mr. Carver himself or Paul Walsh, from

19 whom I would have gotten the assignment to prepare this

20 input, would have told me, yes.

21 Q. What did they tell you as to for whom it was to

22 be prepa red?

Objection. I think we may be going

into an area that was excluded from other testimony.

THE COURT: Consult with Mr. Boies about that


FOLEY SQUARE. NEW YORK, N .Y. _ 791-1020


1 and perhaps he will withdraw the question.

2 (Pause)

3 MR. DORSEN: May we approach the bench?

4 THE COURT: Is it important that you ask for

5 whom it was prepared?

6 ~1R. BOI ES: We are in agreement as to what the

7 witness' answer would be. I can pass the question now and

8 simply, after it is ruled on as to whether it is relevant,

9 that can be put befote the jury or ftot depending on the

10 court's rUling. But we are in agreement as to what his

11 answer would be.

12 MR. DORSEN: I think I understand what he says.

13 MR. BOIES: Let me just make sure.

14 (Pause.)

15 MR. DORSEN: I will stipulate, your Honor.

16 o. Did there come a time in which, in 1968, there

17 W5S an order of battle conference at which representatives

18 of MACV an(] the CUI attended?

19 A. Yes. We held an order of battle conference at

20 Langley in 1968, in April.

Q. And did you attend that conference?

A. Yes. I organized it.

Q. At that conference wha~ was the total ene~y

strength estimate advocated by the CIA?

MR. DORSEN: Objection, your Honor. Best

SOUTHERN DISTRICT REPORTERS. U,S. COURTHOUSE F w _ 7Q. ')


1 evidence.


3 A. The overall number of the organized manpower

4 that the enemy -- in the enemy structure at that conference

5 in our opening papers was the 500,000 to 600,000 figure.

6 Q. And at that conference did MACV advocate a total

7 enemy streng th est ima te?

B A. Yes, it did.

9 Q. 'Ihat was that esti:nate th-at MACV advocated?

10 MR. DORSEN: Obj ect i on, your Honor.


12 MR. DORSEN: Again, best evidence.

13 THE COURT: I think that the question calls for

14 oral conversations as well as documen ts, but I think one

15 thing that should be clarified, not necessarily in this

16 question but perhaps subsequently, is to what extent the

17 two, the positions advocated by the CIA and by MACV, were

18 comparable in terms of the categories they included.

19 You may answer.

20 A. MACV defended its then collateral order of

battle number, which included the regular forces, the

guerrillas and the administrative services, which together

by that time, as a result of the continual process of •

s howing every monthly order of battle lower than the

prev ious one, reaardless of .]hat had happened, was down to


FOLEY SQUARE . NEW YORK, N.Y. - 791.1020

bs 2 Smith - direct 8268

1 the level of about 220,000.

2 MR . DORSEtJ: Your Honor, I move to strike the

3 response.

4 THE COURT: I did ask you, and I repeat my

5 question, that you simply answer what the question calls

6 for \vithout including other comments that you think are

7 appropriate.

8 I will allow the answer to stand because it

9 could have been brought out by a series of questions.

10 Q. Mr. Smith, I would like to follow up on --

11 THE COURT: I'm sorry, I change that. I wi 11

12 strike the answer. 1\11 except 220,000 is the answer, and

13 the categories included.

14 Q. Let me follow up on something the court said,

15 Mr. Sm i th • You said that MACV was anvocating 220,000 and

16 CIA was advocating 500,00Q to 600 ,00 0. Is it t he case that

17 part of the difference in those two numbers resulted from

the CIA including a category or ~ategories that MACV

excluded?

A. Yes. Part of the difference was that -- part of

the difference was caused by the fact that we adderl

categories that MAC V did not.

Q. llnd--

A. It was a different concept.

Q. Ann is it also the cas e --

SOUTHERN DISTRICT REPORTERS. u.s. COURTHOUSE

FOLEY SOllARF NJ;W V(lR\!" N v _ 701 I O"H'I

bs2 Smith - direct 8 2 69

1 MR. DORSEN: I didn't hear the answer.

2 THE COURT: He said it was a different concept.

3 Q. And is it also the case that part of the

4 difference came from the fact that the esti~ates th a t the

5 CIA ha d for th e categories that MACV included were higher

6 than the esti~ates that MACV had for those categories?

7 A. In ach of the three cases that MACV carried in

B its order of battle our figures were substantially higher.

9 Q. Higher than MACV's?

10 A. Higher than MACV's.

11 Q. Did you have. any conversations with

12 representatives of the Defense Intelligence Agency at the

13 April 196 8 order of battle conference?

A. Yes. v)e had.

Q. With whom did you have those conversations?

A. Yes, we had such conversations. MACV had an OB

shop. I had most of my conversations at that tim e with a

gent1e~an named George Fowler.

Q. Did Mr. Fowler discuss with you what DIA's

position was at this April 1968 order of battle conference?

MR. DORSEN: Objection, your Honor.

THE COURT: Come up, please.

(At the sidebar)

THE COURT: Wh~t are you~ looking for in answers?

MR. BOIES: I believe he would testify t h at h e

SOUTHER N DISTRICT REPORTERS. U.S. COU RTHOUSE

FOLEY SQUARE, NEW YORK. N .Y. _ 791· )020


1 did discuss OIA's position; that OIA people told him that

2 they were in agreement, partial agreement -- I'm not

3 exactly sure how to phrase it -- with the CIA position, but

4 that they still felt under under constraints to support the

5 command in the field.

6 MR. OORSEN: May I speak, your Honor?

7 THE COURT: Yes.

8 t1R. OORSEN: I believe this whole approach to

9 the Apri 1 1968 conference is terribl-y prejudicial.

10 There are documents that state the OIA's

11 position. There are CIA memos.

12 THE COURT: CIA or OIA?

13 MR. OORSEN: Exhibit 715, CIA -- it details

14 MACV's position, the OIA's position, the CIA's position.

15 These were the documents and studies that have been

16 testified to by I·lr. Parry and Mr. Allen.

17 THE COURT: Are you saying that state OIA's

18 position? Are you talking about documents that show OIA's

19 position to be in support of MACV's position?

20 MR. DORSEN: Absolutely.

TilE COURT: That is exactly what Mr. Boies is

aiming the proof against.

~1R. OORSEN: It is in the documents and it

explains exactly what the position is, you~ Honor.

THE COURT: You mean the position in terms of


FOLEY SQUARE, NEW YORK , N.Y. _ 791.1 020


1 numbers, 65,000 --

2 MR. DORSEN: In some cases, yes. He have the

3 document.

4 THE COURT: The point of his evidence is to

5 undermind those documents. The point -of his evidence is to

5 shoYI that there was a conspiracy, to use a word that I

7 select because of its significance for the law of evidence

B rather than for other purposes, that there was a conspiracy

9 between MACV and the CIA, a part of 'whose purpose ',las that

10 the DIA would support MACV's position.

11 MR. DORSEN: Your Honor, several things. One,

12 the situation is much more complicated than that. I think

13 in some cases it supports it and in some cases it deviates

14 sl ightly.

15 Second of all, I do not believe that oral

16 communications by Mr. Fowler as to what he was told to

17 support or not support is admissible.

18 Here we have a document, memorandum, exhi bi t 715,

19 memorandum for Director of Central Intelligence through

20 Deputy Director for Intelligence, results of communit y

21 negotiations of enemy strengths in South Vietnam that state

wha t happened.

MR. BOIeS' After the conference.

MR. DORSEN: Part of it was testified to as

preparer. before the conference.


FOLEY SQUARE. NEW YORK. N.Y. _ 791·1020


1 THE COURT: I am just wondering, I think this

2 might take a few minutes. Do you think you might pass it

3 and go on to some other things and then at the recess when

4 the jury is out we can come back to it, because I don't

5 think it wi 11 be resolved in a minute?

6 MR. BOIES: Yes, your Honor

7 (Open cour t)

8 BY MR. BOIES:

9 Q. Mr. Smith, did the April -1968 conference resul t

10 in agreement between the CIA and MACV as to what enemy

11 strength esti~ates should be adopted?

12 A. No, it did not.

13 Q. Following the April 1968 meeting did the CI A and

14 MACV continue to distribute their own estimates?

15

16

17

A. Yes.

Q. And those esti~ates were different?

A. Yes, t hey were.

Q. Let me turn to the subject of infiltration. Did

there come a time when the South Vietnam branch began to

study enemy infiltration into South Vietnam?

A. Yes, there did.

Q. \"Ihen was that ti'l1e, sir?

A. At approximately the Tet offensi ve period • •

Q. Who was involved pri~arily in ma k ing those

stud i es?

SOUTHER N DISTRICT REPORTER S. U.S. COU RTH OUSE

FOLEY SQUARE. NEW YORK. N .Y. - 791-1020


1 A. Because we

2 THE COURT: vJh o? Who was involved?

3 THE WITNESS: I was involved, Dwain Gatterdam

4 was involved, David Shields was involved; those were the

5 two primary analysts, Doug Parry was involved also, and Joe

6 Stumpf.

7 Q. And as chief of the South Vietnam branch were

8 you aware of the work that the individuals that you have

9 just identified were doing in conne;tion with research on

10 enemy infiltration?

11 A. Yes. As I began to say earlier, I kind of led

12 that team myself because I wanted to get a lot of work done

13 quickly on it, so I was involved in it every day. And I

14 was aware of the work that each of the other people did.

Q. Did the work that was done in 1969 concerning

ene~y infiltration involve, at least in ~art, estimating

what enemy infiltration had been in the past?

A. Yes, it did.

Q. Did the South Vietnam branch, in 1968, make any

estimate as to what enemy infiltration had been in the last

several months of 1967?

A. Yes, we did. That was our pri~ary purpose.

Q. What was the estimate that the CIA ~~uth Vietnam

branch made in 1968 for enemy infiltration in the last

s everal months of 1967?


FOLEY SQUARE, NEW YORK , N.Y. _ 791-1020


1 A. We estimated during our work in February and

2 March 1968 that during th e last five months prior to th e

3 Tet offensive that -- Which occurred at the end of January

4 that in those five months the average infiltration had

5 fallen between 20, 000 and 30, 000 men per month.

6 Q. That would have been a total of between 100 and

7 15 0 , 00 0 for those five months, is that so?

8 A. That's correct.

9 Q. Of enemy infiltration into South Vietn am?

10 A. That's correct. Trained North Vietnamese Army

11 sol d iers.

12 MR. BOIES: May I have just a moment, your

13 Honor?

14 THE COURT: Ye s.

15 ( Pause)

16 THE COURT: I remind the jury of two things t ha t

17 I said to you yesterday on this issue of estimates of

infiltration made at a subsequent time the witn e ss said

it was February-March 196 8 -- relating to trye amount of

infiltration during the September through January period .

,,'hat I said yesterday, that I remind you o f noVl,

is two things, that this testimony pertains to the issue of

~onesty or dis h onesty of MACV's re p orts rather than the

accuracy or inaccuracy of those reports.

Se cond , as I me ntioned to you yester day , to t he

SOUTHER N DISTRICT REPORTERS. U.S. COU RTHOUSE

FOLEY SOU ARE. NEW YORK. N .Y. _ 791.1010


I extent that subsequent estimates are different from the

2 esti:nates that were man e contemporaneously in September,

3 October, November, December of '67, you should bear in mind

4 that some of the differences can be attributable to

5 diffezent information that was a v ailable at the later time

6 than had been available at the ' earlier time.

7 So you should bear that in mind in focusing your

8 attention on the issue of one of honesty or dishonesty, as

9 oppos e d to accuracy or inaccuracy.

10 All right, Mr. Boies.

11 Q. Mr. Smith, I would like to focus on the kind of

12 intelligence and materials that you and the others in the

13 South Vietnam branch used in 1968 to do your study of 1967

14 infiltration.

15 I'Jere the materials that you used in 1968 -to

16 stud y 1967 infiltration, materials that in whole or in p a rt

were avail a ble to MACV in 1967?

MR. DORSEtl: Obj €ct i on, your Honor.

THE COURT: I think it is confusing when you say

"in whole or in part." I think you should begin perhaps by

asking whether all of the materials that were us e d in '68

to ma ke these estimates had been available to MACV in '67,

and then proceed from there.

Q. Mr. Smith.

A. All of the ma terials couldn't hav e bee n

SOUTHERN DISTR1CT REPORTER S. U.S. COURTHOUSE

FOLEY SQUARE . NEW YORK. N.Y. - 791· 1020


1 available at that ti~e because there are some delay factor

2 in receiving them.

3 Q. \~ere some of the materials avai lable to MACV?

4 A. Yes, they were.

5 Q. Are you aware of what MACV's estimates of

6 infiltration were for the five months preceding the Tet

7 offensive?

8 A. It is my recollection that they were roughly the

9 same as they had been during the summer, down around the 7

10 or 8, 000 man per month level.

11 Q. And

12 THE COURT: May I interrupt for a second? You

13 said in a previous answer that all could not have been

14 available to MACV at the contemporary moment when they were

making the reports, and you gave as your explanation

because of a delay factor.

vias it not also true that some of the

information that you used in making your estimates in

February and March were information that resulted from the

Tet offensive?

THE vIITNESS: I wouldn't say so especially. We

CQuld -- the documents -- there may have been some

acceleration of capturing documents as a result of the Tet

offensive, but

THE COURT: That's what I'm talking about.

SOUTHERN DISTRICT REPORTER S, U.S. COURTHOUS E

FOLEY SQUARE. NEW YORK, N.Y. _ 791.1020


1 THE WITNESS: -- I really don't think that was a

2 factor.

3 THE COURT: What I'm asking is whether in making

4 those estimates any part of the ~stimating included

5 interrogation of prisoners, captured documents, or anything

6 of the kind that occurred during the Tet offensive; in

7 other words, events that had not yet occurred in September,

8 October, November.

9 THE HITNESS: There is a _constant flo~) of

10 materials coming from captured documents and prisoner

interrogation, but I don't think there was any particular

increase in that flow as the result of the Tet offensive.

I don't see any reason why there would be. That's just

something

THE COURT: I don't think my question is getting

across.

I'm not asking about an increase of flow. I'm

asking whether, in making the estimates in February and

March of 19G8, you at the CIA relied in any part on

documents or interrogations that simply had not yet been

obtained in September, October and November.

THE WITNESS: Excuse me. Yes, that's correct.

THE COURT: You may proceed.

Q. How much of the material that you relied on in

making your stuoy in February and March of 1968 concerning


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bs2 Smi th - direct 8278

1 1967 infiltration was information that had not been

2 available prior to the Tet offensive?

3 MR. DORSEN: I object to the form, your Honor.

4 Available to whom?

5 THE COURT: I didn't hear you.

6 MR. DORSEN: Available to whom? And then there

7 would be a foundation problem as to possibly the answer

8 THI: COURT: I think as to available to whom,

9 what Mr. Boies means is available to anyone. The

10 information simply didn't exist yet in '67. I will sustain

11 the objection only to the point that I thin k how much is a

12 meaningless concept.

13 I think you can ask him to talk about the

14 quality of the information.

IS Q. As I understand it, Mr. Smith, some of the

16 intelligence t~at you used in February-March of 1968 had

been available in 1967 and some of it had not been, is that

fair?

A. That's correct.

Q. Now, could you characterize what information, in

terms of how significant it was to you in your study, was

available in 1967 and what information, in terms of

significance to yO"', did not become available until 1968? . "

A. Yes, I think I can.

Q. ~ould you do so.

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bs2 Sm i th - di rect 8279

1 A. The special intelligence is available

2 immediately by its nature, by the nature of the source and

3 the nature of the transmission.

4 So, for analytical purposes, it's immediate;

5 per ha ps at most had a day, to include in the hands of

6 .Washington analysts.

7 THE COURT: Can you explain a little bit what

8 you mean by "special intelligence."

9 THE WITNESS: . This is the IJSA material. By the

10 nature of the way they receive it and work it, it not being

11 written material but material out of the airways, it can be

12 intercepted and sent to analysts very quickly.

13 The second kinds of material, in terms of its

14 availability, would be captured cocuments. Fortunately for

we analysts, the North Vietnamese Army were great producers

of paper and every infiltrating person not only knew the

number of his infiltration group, and that sort of thing,

but he actually carried a piece of paper indentifying him

as a member of that group with the group number on it, and

that sort of thing.

In addition to that, th e re were other kin~ of

military b ureaucratic papers t,at pertained to these things

fro'll wh i ch we could get group numbers, fro'll W'1 i ch we could

analyze the y often gave us th e number of people in

groups, numbp r of people in collections of groups, so that


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1 there was a great -- there was a great deal of captured

2 documents picked up during this process.

3 As a result of the superb system that Ceneral

4 ~lcChristian had set up over the previous two years for

5 helping the troops out in the front line accumulate these

6 things and get them sent back to Saigon, put through a

7 translation-screening system; it's amazing how rapidly

8 these documents were processed. ·

9 Of course, ~1.~CV analysts ~",ould receive them the

10 day they were pUblished by the folks who evaluated them and

11 translated them and we in Washington didn't get them much

12 later. They would come by air pouch -- sometimes,

13 depending upo~ the way the flights came, we would have them

in a couple of days and sometimes a week, but not a long

per i od of t i'Tle.

Of great value, but a little slower, certainly

than the specia l intelligence and also the captured

documents, were prisoner interrogations"and voluntary

material from defectors.

That would characterize the material.

Q. You were familiar in 1968, in March and February

when this 'Nork was being done, with the material ann with

when that material became available; is that rorrect, sir? •

A. Yes.

Q. Ba sed on that knowledge, ~o you have an opinion


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bs2 Smith - direct B2Bl

1 as to whether or not there was sufficient intelligence that

2 had been available prior to the Tet offensive that would

3 have demonstrated "that enemy infiltration was substantially

4 larger than MACV was reporting?

5 A. Yes, sir.

6 MR. DORSEN: Objection, your lIonor.


8 :1R . DORSCN: I think it is imprecise and I don't

9 believe this witness has a foundation for stating what

10 somebody else would have concluded. That's what he's being

11 asked to testify to.

There are many assumptions that were unstated,

your Honor, including the experience of the person involved,

including when it took place, and various other things,

your Honor .

THE COURT: Overruled. Those matters go for

weight and may be explored on cross-examination.

Q. I'm not sure whether the witness answered the

question or not. Did you answer the question?

A. I said most certainly, and I think -- and I hODe

J answered the right qu~stion, that my understanding

that all of these documents are carefully dated, the

cap~ ured documents are dated, carefully chronicled as to

when they were picked up, when they were tra~slated and

wh en they are disseminated, and I had explained that MACV


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1 analysts would have them a day or -- certainly within 24

2 hours after they were disseminated and we would have them

3 at most a week.

4 This is true of the interrogation reports.

5 Everything is dated. l\.s a matter of fact, because we were

6 disturbed at MACV's infiltration analytical reporting was

7 one of the reasons that we went into this analysis, and we

8 took careful note of just this factor, when these materials

9 would 'lave been reasonably avai lable~ to Ml\CV analysts.

10 MR. DORSEN: Your Honor, I move to strike the

11 answer insofar as he purports to characterize MACV's

12 practices and give reasons why CIA mayor may not have done

13 certain things.

14 THE COURT: Sustained. The jury will disregard

15 that portion of the answer.

16 Q. Mr. Smith, I now would like to turn to

conversations which you had with Mr. Adams.

MR. BOIES: Your Honor, the next series of

questions will be relating to the defendants' state of mind

issue and only to that issue.

Q. Did you have any discussions with Mr. Adams

prior to the CBS broadcast, Mr. Smith, in w'lich you told

Mr. Adams your views of SNIC 14.3-67?

A. Yes, many.

Q. Din you tell Mr. Adams whether you believed SNIE

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s2 Smi th :- direct 82 83

I 14.3-67 to have been an accurate assessment of enemy

2 strength?

3 MR. DORSEN: Your Honor, could we have the ti~e

4 frame, please?

5 THE COURT: Yes.

6 Q. And when you answer the question would you tell

7 me when you told Mr. Adams?

8 A. All of such conversations I had with Mr. Adams

9 woul d ha ve taken place during the Sllmmer of 19 6 7 w'1en we

10 were both working on the estimate and during the subsequent

11 year when he was in my South Vietnam branch.

12 He did not have any conversa t ions about th i s

13 subject subsequent to that time frame.

14 Q. Focusing on 1967 and 1968 then, sir, did you

15 tell Mr. Adams your views as to whether SNlE 14.3- 6 7 was or

16 was not a valid assessment of enemy strength?

17

18

19

A. Yes, I did.

Q. What did you tell him?

A. I told him that it was most certainly not a

valid assessment of enemy strength.

Q. I want to focus on a point the court mad e

earlier, and that is distinguishing between som e thing t'1at

is valid or invalid as compar!"c], with something that is

honest or dishonest.

Did you address with Mr. Adams wh e ther SNlE

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bs2 Smi th - direct 8284

1 14.3-67 was honest or dishonest?

2 A. Yes, I d ic1 •

3 Q. What did you tell him?

4 A. I told him that I had concluded, after the

5 summer conferences that we had with MACV as our guests in

6 August, our team's' · visit to Saigon, dealing with ~IACV

7 representatives at our April conference, that it couldn't

8 possib ly have been an honest depiction of the situation.

9 Q. Did you discuss with Mr. -Adams whether or not

10 the vihite House and policymakers would or would not have

11 been misled by SUIE 14.3-67?

12 A. Yes, I did.

13 Q. \·lhat did you tell ~lr. Adams in that regard?

14 A. I told him that I thought it was a serious issue,

15 that such a grossly inadequate national esti~ate going to

16 senior policymakers had to have an impact and be misleading.

17 Q. Did you ever discuss with Mr. Adams how, in your

view, SNIE 14.3-67 came to happen, that is how what you

have described as dishonest and misleading national

intelligence estimate happened to come about?

MR. DORSEN: Objection, your Honor.

THE COURT: Overruled.

A. Yes, I did.

Q. Ilhat did you tell Mr. Adams in that respect?

A. Well, he knew better than I


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1 'rHE COURT: No. W~at did you tell him?

2 THE WITNESS: I told hi'll that in the case of

3 each of the elements of the force structure that were

4 misanalyzed in the esti~ate, that they were improper,

5 incorrect and inadequate. The analysis was inadequate, and

6 that the cat'itulation to MAev's views, which took place,

7 was morally unacceptable.

8 Q. Did you discuss with Mr. Adams your view of what

9 role, if any, General Westmoreland fiad played in the order

10 of battle controversy in 1967 and 1968?

11 A. Yes, I did.

12 Q. What did you tell Mr. Adams in this respect?

13 A. Well, I told him that I thought it was wrong,

14 both from a ?rocedural point of view of not allowing the

15 professional intelligence people to do their work

16 un e ncu'llbered, and that, secondly, it was wrong to use the

17 pOlitical power he had at the time to force the thing down

our throats.

11R. BOIES: Your Honor, I have no more questions.

THE COURT: All right. We will take a break.

The jury may go into the jury room.

matter.

matters.

(Jury excused)

II;:{. DORSEN: Your Honor, there is an open

It is about the best evidence ruling and related

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bs2 Smith - direct 8 286

1 THE COURT: All right.

2 MR. DORSEN: Your Honor what is happening, I

3 SUbmit, is that we have the documents that state, in

4 official CI A documents, as to summarizing the conference

5 and Mr. Boies is asking questions which are covered by

6 th e se documents, and I just think that in order to have an

7 orderly presentation and accurate presentation that when

8 th e re are contem?Qraneous documents that state peoples'

9 positions t h at those be used rather~than statements of

10 500,000 to 600,000 total enemy strength, without specifying

11 categories, without gi v ing details.

12 I think it is confusing to the jury. I think it

13 puts an en o rmous burden on cross-examination, which I do

14 not thin k is appropriate in a case where the events are 17

15 years old and the government has produced thousands of

16 pages of documents and Mr. Adams has produced thousands of

17 pages of documents, your Honor.

I just think that when there are reports, I

think that's where the thing should begin.

\~ itnesses are asked, what was CIA's position?

\, e have CI A's position in documents, your Honor.

Maybe he wi 11 say that we changed our position. '

That is somet h ing that is obviously appropriate • •

Convers a tions with peo p le: what are DIA's position? Again,

we have contempor a neous documents, yo ur Honor.


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Ar e those

bs2 Smith - direct 82 8 7

1 the documents that we re prepared by CI A as to what was

2 occurring at the time?

3 Otherwise, all we get is this witness'

4 recollection from the stand of conversations maybe he

5 remembers accurately, maybe he doesn't remember accurately,

6 maybe he didn't e v en have them himself but learned them

7 from somebody else as to what the position was of OIA.

8 Particularly, your Honor, ~lhen in post-Tet

9 period the defendants are claiming that who agreed with

them is of significance on the issue of truth, I do not

think it's appropriate for them to start bringing out in

oral conversations, when the only purpose is to corroborate

whether the CIA position -- not even that, whether MACV's

position was totally unreasonable, and it's not there for

any other major purpose, your Honor.

(Continued on next page.)

SOUTHER N DISTRI CT REPORTER S. U.S. COURTHOUSE

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