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Notes:

i. In December 1970 Hai was reassigned as commander of the XXXXIV Corps Tactical Zone, and as Komer suggested, Major General Tran Thanh Phong became National Police chief.

ii. Few members of the directorate held Mason in high esteem. Walter Kolon de scribed him as "duplistic in an of his dealings. He would be honey smooth to a man's face, then vitriolic as soon as he left the room." [16] James Hunt said, "I was never quite sure if he was being clever or straightforward." [17] Everyone agrees that his loyalty was to Ted Shackley and the CIA station.

iii. When I interviewed Tilton in 1986, he was forthcoming and helpful. After I presented him with a magazine article that was critical of Phoenix (and which had been mailed to me by Nelson Brickham), Tilton asked not to be quoted.

iv. In 1971 George French replaced Bob Dunwoodie as CIA liaison to SOG, Bob Wall was back as senior adviser to the Special Branch, and Tully Acampora had returned as adviser to Tran Si Tan, chief of the metropolitan police and, according to Acampora, "to Thieu what Loan had been to Ky." [26]

CHAPTER 27: Legalities

In his aptly titled master's thesis for American University, Ralph Johnson poses the question: "The Phoenix Program: Planned Assassination or Legitimate Conflict Management?" [1]

The answer is that Phoenix was both. Insofar as the rifle shot concept was the essence of the attack against the VCI, Phoenix was "planned assassination." At the same time, in the sense that the key to the Vietnam War was the political control of people, Phoenix was also conflict management. The question is if, under the aegis of conflict management, everything from ambush and assassination to extortion, massacre, tiger cages, terror, and torture was legitimate and justifiable? Indeed, by 1971 the legality of Phoenix was being questioned not just by antiwar activists but by the House Subcommittee on Foreign Operations and Government Information, co-chaired by William Moorehead and Ogden Reid.

As usual, it was a whistle-blower who provided Congress with its ammunition. In late 1970 Bart Osborn approached an aide on Congressman Moorehead's staff with a copy of the training manual he had been issued at Fort Holabird. Said the aide, William Phillips: "It showed that Phoenix policy was not something manufactured out in field but was sanctioned by the U.S. government. This was the issue: that it is policy. So we requested, through the Anny's congressional liaison officer, a copy of the Holabird training manual, and they sent us a sanitized copy. They had renumbered the pages." [2]

This stab at disguising policy prompted Congressman Pete McCloskey to visit the Phoenix Directorate in April 1971, in preparation for hearings on Phoenix to be held that summer. His visit was recalled by Phoenix training chief James Hunt: "Colby was out of town, Jake [George Jacobson] was in charge, and Mason was there. And just as I was getting up to go to the platform to give my briefing, Mason whispered into my ear, 'We gotta talk to them, but the less we say, the better.' Well, the first question McCloskey asked was if anyone in the program worked for the CIA. And Mason denied it. He denied any CIA involvement. Jake, too."

Hunt recalled that McCloskey, Mason, and Jacobson immediately went into executive session. He did not know what happened there. But it bothered him that Mason "blatantly lied." Hunt added parenthetically, "Phoenix had been under the CIA; then MACV supposedly took it over. But we didn't really understand it, and that bothered us. There was always a suspicion. My impression was that John Mason worked for Colby through Jake, but he also had a close relationship with the chief of station -- a professional relationship, back-channeling messages."

Also bothered by the lies, McCloskey returned to Washington and charged that planned assassinations under Phoenix denied due process and that Phoenix "violated several treaties and laws." [3] The legal basis for McCloskey's charge was Article 3 of the Geneva Conventions, which prohibits "me passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." It also prohibits mutilation, cruel treatment, and torture.

Having agreed to the conventions, the United States government was well aware of the substance of Article 3. The problem was a letter written on December 7, 1970, by Imer Rimestead, the American ambassador to the International Committee of the Red Cross (ICRC). In his letter Rimestead says, "With respect to South Vietnamese civilians captured by U.S. forces and transferred by them to the authorities of the RVN , the U.S. Government recognizes that it has a residual responsibility to work with the GVN to see that an such civilians are treated in accordance with the requirements of Article 3 of the Conventions."

To the consternation of the war managers, Rimestead's letter meant that the U.S. government could no longer dismiss the problem of civilian detainees -- corralled in droves by the Phoenix dragnet -- as an internal matter of the GVN. Rimestead reasoned that the U.S. government, by funding Phoenix and the GVN Directorate of Corrections, automatically assumed "residual responsibility." And the truth of the matter was, without U. S. aid there never would have been a Phung Hoang bloc or Directorate of Corrections.

In response to Rimestead's letter, which implied that U .S. war managers were war criminals, the Vietnam Task Force began coordinating with State Department and Pentagon lawyers in an attempt to prove that Phoenix did not violate Article 3. At the same time, the CORDS Research and Analysis staff and the U.S. Embassy in Saigon began a review of Phoenix procedures, and William Colby marched off to face his critics in Washington. However, as was so often the case, when Colby and the Phoenix controversy landed in 'America, a larger event grabbed the headlines. On June 13, 1971, The New York Times began printing lengthy excerpts from the Pentagon Papers -- a painstakingly edited stack of documents that, even by name, deflected attention away from the CIA and Phoenix. Consequently, little public attention was paid when the Times, on July 15, 1971, reported: "Previously classified information read into the record of a House Government Operations sub-committee today disclosed that 26,843 non-military Vietcong insurgents and sympathizers were neutralized in 14 months through Operation Phoenix."

So it was again, four days later, when, in regard to those 26,843 non-military insurgents, Congressman Reid asked William Colby, " Are you certain that we know a member of the VCI from a loyal member of the South Vietnamese citizenry?" [4] Colby replied no but assured Congress and the American public that Phoenix did abide by the Geneva Conventions.

Read into the hearing transcript on July 19 was a memo tided "The Geneva Convention and the Phoenix Program." Prepared by the Vietnam Task Force, it argued that the Geneva Conventions afforded no protection to civilian detainees because "nationals of a co-belligerent state are not protected persons while the state of which they are nationals has diplomatic representation in the state in whose hands they are." It asserted that Article 3 "applies only to sentencing for crimes and does not prohibit a state from interning civilians or subjecting them to emergency detention when such measures are necessary for the security or safety of the state. " Skirting the issue of executions carried out "without previous judgment pronounced by a regularly constituted court," it asserted that because An Tri [administrative detention] procedures involved "no criminal sentence," they were "not violative of Article 3."

In other words, the United States had the right to intern Vietnamese civilians because they, unlike soldiers, were not "protected persons" under the Geneva Conventions. Likewise, the GVN could place citizens in emergency detention to ensure its internal security, without violating the Geneva Conventions, as long as those citizens were not sentenced but merely detained. Regarding due process, Congressman Reid asked Colby if civilian detainees had a right to counsel. Colby replied no.

Noting that there were often cases of mistaken identity, Reid asked, "How can you possibly put that together with a quota for sentencing?"

Responded Colby: "There is additional pressure in the assignment of public prosecutors to the Province Security Committee." [5]

But, Congressman Pete McCloskey asked Colby, "The administrative detention applies to those against whom there is insufficient evidence to convict, isn't that right?"

Colby agreed.

So McCloskey inquired, "If Article 3 ... requires a trial by court, how are we working with the GVN to see that these civilians are receiving the proper attention under the Geneva Convention?"

Referring to the various reforms and revisions, Colby answered, "We are trying to put in the standards of due process ... and we have achieved a number of them." [6]

But, McCloskey blurted, "the defendant informed against, or identified, has no right to appear in his own defense, no right to counsel, no right to confront his accusers, no right to see his dossier; is that correct?" [7]

"That is correct," Colby said, producing statistics to show that only hard-core Communist offenders generally had their sentences extended in definitely by the Central Security Committee, while many category Cs were released. [8]

"That brings me to the real problem with the Phoenix program that I saw while I was there," McCloskey countered. "If the evidence is insufficient to convict a man, and also insufficient to show a reasonable probability that he may be a threat to security, then he may stilt be sent to the PIC." [9]

Regarding verification, Ogden Reid asked Colby: "Do you state categorically that Phoenix has never perpetrated the premeditated killing of a civilian in a noncombat situation?"

Colby, differentiating between concept and organization, replied: "Phoenix as a program has never done that. Individual members of it ... may have done it. But as a program it is not designed to do that." [10]

Regarding Americans involved in Phoenix, Reid asked Colby, "Do they perform any actual arrests or killings, or do they merely select the individuals who are to be placed on the list who are subject to killing or capturing and subsequent sentencing?"

Colby replied, "They certainly do not arrest, because they have no right to arrest." But, he added, "American units may capture people in the course of a raid on a district VC headquarters base," and "Occasionally a police advisor may go out with a police unit to capture somebody [but] he would not be the man who reached out and grabbed the fellow." [11]

Reid said, "I have here a list [signed by the CIA's Special Branch adviser in Binh Dinh Province] ... of VC cadre rounded up ... after that area was secured by Operation Pershing in February 1967. It is of some interest that on this list, 33 of the 61 names were women and some persons were as young as 11 and 12." [12]

Colby: I think that is an example of exactly the situation that this program is designed to eliminate." [13] He then submitted written responses to questions on every aspect of Phoenix, from PICs to PRU and refugees, explaining why conflict management in wartime required the suspension of habeas corpus and due process.

On August 3,1971, Congressman Reid, referring specifically to Phoenix, offered an amendment to the Foreign Assistance Act which would have barred assistance to any nation or program that employed assassination or torture. In offering the amendment, Reid expressed his feeling that some activities of Phoenix were "violative at the time they took place of the Geneva Conventions." Said Reid: "At least as shocking as the assassinations, torture, and drumhead incarcerations of civilians under the Phoenix program is the fact that in many cases the intelligence is so bad that innocent people are made victims." In making his case, Reid observed that Colby had replied no when asked, "Are you certain we know a member of the VCI from a loyal member of the South Vietnamese citizenry?" Reid asked rhetorically, "Who knows how many innocent people have been assassinated or tortured in the name of the Phoenix program?" [14]

In any event, congressional hearings are not trials, and William Colby was not charged with wrongdoing. But neither was he believed, for whereas the Senate hearings of 1970 had allowed him to define Phoenix in term that supported his ideological preconceptions, the House allowed people to refute Colby by citing for the record specific instances of abuse.

For example, despite Colby's claim that standards of due process were being put in place, CORDS official Ted Jacqueney testified that "arrest without warrant or reason" was a major complaint of the people of Da Nang. "I have personally witnessed poor urban people literally quaking with fear when I questioned them about the activity of the secret police in the past election campaign. One poor fisherman in Danang, animated and talkative in complaining about economic conditions, clammed up in near terror when queried about the police, responding that 'he must think about his family.' After many personal interviews in Vietnam on this subject, I came to the conclusion that no single entity, including the feared and hated Vietcong, is more feared and hated than the South Vietnamese secret police." [15]

Jacqueney said, "In every province in Vietnam there is a Province Interrogation Center -- a PIC -- with a reputation for using torture to interrogate people accused of Vietcong affiliations. These PICs have a CIA counterpart relationship with the AID police advisor. Not in all cases however.

Last year the senior AID police advisor of Danang City Advisory Group told me he refused, after one visit, to ever set foot in a PIC again, because 'war crimes are going on in there.'

... Another friend, himself a Phoenix advisor, was ultimately removed from his position when he refused to compile information on individuals who would, he felt, inevitably be 'targeted' however weak the evidence might be." [16]

Referring to Colby's testimony about Americans' not being the ones "who reached out and grabbed the fellow," Jacqueney said, "I know of Americans that have actually battered down the door -- so help me -- in going after people." [17]

Also contradicting Colby was Michael Uhl, who served in Vietnam in 1968 with the Eleventh Brigade's First Military Intelligence Team (MIT). As a first lieutenant Uhl administered the team and supervised its counter- intelligence section. He said, " Ambassador Colby gave the impression that Phoenix targetted specific high level VCI whose identity had been established by at least three unrelated intelligence sources .... Colby thus would have us believe that the vast majority of these people were target ted according to the rules that he outlined." But, Uhl added, "It was my experience that the majority of people classified as VC were 'captured' as a result of sweeping tactical operations. In effect, a huge dragnet was cast out in our area of operations and whatever looked good in the catch, regardless of evidence, was classified as VCI." [18]

Uhl testified that he was told by a superior officer "that the only justification for MI people to be on a patrol was for the hunting down of VCI. From that point on, any 'body count' resulting from an MI patrol were automatically listed as VCI. To my knowledge," said Uhl, "all those killed by the 1st MIT on such patrols, were classified as VCI only after their deaths. There was never any evidence to justify such a classification .... Not only was there no due process ... but fully all the detainees were brutalized and many were literally tortured." He added that " All CDs [civilian detainees] ... were listed as VCI" and that even though Colby denied that Americans actually exercised power of arrest over Vietnamese civilians, "In Duc Pho, where the 11th Brigade base camp was located, we could arrest and detain at will any Vietnamese civilian we desired, without so much as a whisper of coordination with ARVN or GVN authorities." [19]

As for the accuracy of information from "paid sources who could easily have been either provocateurs or opportunists with a score to settle," Uhl said, "The unverified and in fact unverifiable information, nevertheless was used regularly as input to artillery strikes, harassment and interdiction fire, B-52s and other air strikes, often on populated areas." [20]

Bart Osborn agreed: "I had no way ... of establishing the basis of which my agents reported to me suspected VCI .... There was no cross-check; there was no investigation; there was no second opinion. There was no verification and there was no discrimination." Osborn added, "I never knew of an individual to be detained as a VC suspect who ever lived through an interrogation in a year and a half, and that included quite a number of individuals." [21] "They all died?" Congressman Reid asked incredulously.

"They all died," Osborn replied. "There was never any reasonable establishment of the fact that any one of those individuals was, in fact, cooperating with the VC, but they all died and the majority were either tortured to death or things like thrown out of helicopters."

At the end of the hearings Representatives McCloskey, John Conyers, Ben Rosenthal, and Bella Abzug stated their belief that "The people of these United States ... have deliberately imposed on the Vietnamese people a system of justice which admittedly denies due process of law .... In so doing, we appear to have violated the 1949 Geneva Convention for the protection of civilian peoples at the same time we are exerting every effort available to us to solicit the North Vietnamese to provide Geneva Convention protections to our own prisoners of war.

"Some of us who have visited Vietnam," they added, "share a real fear that the Phoenix program is an instrument of terror; that torture is a regularly accepted part of interrogation ... and that the top U.S. officials responsible for the program at best have a lack of understanding of its abuses." They concluded "that U.S. civilian and military personnel have participated for over three years in the deliberate denial of due process of law to thousands of people held in secret interrogation centers built with U.S. dollars," and they suggested that "Congress owes a duty to act swiftly and decisively to see that the practices involved are terminated forthwith." [22]

***

Was William Colby really unaware? When Congressman Reid asked if any Phoenix advisers had "resigned on the grounds that they could not morally be satisfied that they were identifying the right individuals," Colby said he could not recall any who had resigned "for that reason." [23] Yet, considering his close contact with George Jacobson, John Tilton, John Vann, and Wilbur Wilson, is it likely that Colby was unaware of the case of Sid Towle, who on August 1, 1971 (while the hearings were in progress) requested release from Phoenix for exactly that reason?

A graduate of Yale University, Lieutenant Sid Towle in June 1969 was assigned to the 116th MIG in Washington, D.C. As chief of a counterintelligence team Towle assigned and reviewed cases (including an investigation into Ed Murphy's antiwar activities) and conducted offensive counterintelligence operations in the nation's capital. One task was disrupting antiwar demonstrations by building bonfires and inciting people to riot, so the capital police could be called in to bash heads. During this period Towle was rated by his commander as "one of the most dedicated, professionally competent and outstanding junior officers I have had the privilege to serve with anywhere." [24]

But Sid Towle did not want to go to Vietnam, and upon receiving orders to head overseas in January 1971, he requested release from active duty, citing in his application his "complete abhorrence for the Vietnam War and the continued U.S. presence there." Towle tiled for release under Army Regulation 635-100; but his request was denied, and his counterintelligence credentials were withdrawn. Towle was sent to Vietnam in March 1971 as me Phung Hoang coordinator in Vung Liem district in Vinh Long Province.

During his stint as a Phoenix adviser, Towle spent most of his time "sifting through the DIOCC's target folders looking for aliases." [25] A sergeant assigned to the DIOCC managed funds obtained from the CIA for informers and PRU and acted as liaison with the Vinh Long PIC and PIOCC. Towle lived in a villa with five or six other people in the CORDS district team. Behind the villa were the PRU quarters. Said Towle: "We turned up the radio when we heard the screams of the people being interrogated .... I didn't know what the PRU were doing ninety percent of the time," he explained. "They were directed by province."

To clear operations against the VCI, Towle had to get permission from the province officer in charge, Tom Ahearne. Regarding operations, Towle said, "I went after an average of eight to ten VCI per week. The Special Branch people next door ... would come up with the names, which I would check. Then the PRU went out. They went out every night and always killed one or two people. But verifying whether or not they were VCI was impossible. They would tell you who they had killed, and it was always a name on the list, but how could I know? We had charts on the wall, and we'd cross off the name, and that was it."

In effect, Towle was keeping score -- until the day the district chief took him for a ride in a helicopter. As they were flying over a village, they spotted , an old man and a girl walking hand in hand down the main street. The district chief said to the door gunner, "Kill them."

The gunner asked Towle, "Should I?"

Towle said no.

"That was the beginning of the end," he reported. "Ahearne called me on the carpet. He told me the province chief was angry because I had caused the district chief to lose face."

There were other reasons why Towle did not enjoy working in Phoenix. According to Towle, Ahearne (who was taken hostage while serving as CIA station chief in Teheran in 1979) and the province senior adviser, Colonel D. Duncan Joy, initiated a bounty program in the province, in which cash prizes were offered to the Vietnamese as an incentive. Ahearne and Joy even arranged a contest between the Phoenix advisers to see who could rack up the biggest body count. Disgusted, the advisers got together and decided not to participate.

That was in June 1971. A few days later John Vann arrived in his private helicopter. "He flew right into the DIOCC," Towle recalled. "He was very critical. He asked where the bodies and weapons were, then sent me into a funeral in progress. He had me open the casket to identify the body. I hated Vann," Towle said. "He was really into body counts."

On another occasion, while Towle was eating his dinner in the CORDS villa, the district chief stormed into the room with the PRU team and dumped a dirty bag on the table. Eleven bloody ears spilled out. The district chief told Towle to give the ears to Joy as proof of six VCI neutralized. "It made me sick," Towle said. "I couldn't go on with the meal.

"After the ear thing," Towle explained, "I went to Vinh Long and joined up with the air rescue team on one of its missions. I was promoted to captain while I was there and received a message from the district senior adviser saying, 'Don't come back.' So I went to see a friend in the judge advocate general's office in Can Tho, and he reported the incident to General Cushman. The general went down in a chopper and handed Joy a letter of reprimand. After that I knew I could never go back, so I had one of my friends in Vung Liem bring my bags up to Can Tho."

Captain Sid Towle was officially removed as the Vung Liem Phoenix coordinator on July 20, 1971. While awaiting reassignment, he worked at the Combined Document Exploitation Center, reading reports on NV A in- filtration along the Ho Chi Minh Trail and giving briefings to senior MACV officers. Then, on August 1, he received orders reassigning him to Kien Phong Province. "It was the proverbial one-way ticket to Cambodia." He sighed. "The last two guys sent out there as Phoenix coordinators were killed by their own PRU. So I went back to see the major running Phoenix administration in Can Tho [James Damron], and he said he would not reassign me. So from there I went to the JAG [judge advocate general] office, where my friend and I drafted a letter to the Phoenix Directorate in Saigon."

In his letter to Tilton, Towle said that "War crimes as designated by the Geneva Conventions were not uncommon" in Phoenix and that he "had expressed my negative feelings on the program to the province Phung Hoang Coordinator and had given much thought to applying for release under MACV 525-36." He then requested "immediate release" from Phoenix.

The next day Major Damron, with the approval of the IV Corps Phoenix adviser, Lieutenant Colonel Efram E. Waller, reassigned Towle to the Tuyen Binh DIOCC -- the same DIOCC where the previous two "triple sixers" had been killed in action. Damron noted that General Cushman was aware of the move, as was the JAG. Meanwhile, Towle's request for release was in the pipeline. So, taking two weeks' vacation, he hid at a friend's house in Can Tho until August 10, when the new CORDS chief of staff, General Frank Smith, approved his release. (Postscript: Referring to "the case that appalled us all," Wilbur Wilson wrote to George Jacobson, at the request of John Tilton, suggesting: " A records check in Saigon before an officer or enlisted man is assigned to a Phung Hoang position in Vietnam could reduce chances of assignment of unsuitable personnel.")

While William Colby was assuring Congress that no Phoenix adviser had resigned on moral grounds, or through MACV 525-36, and that incentive programs were not policy, John Tilton was organizing, with the National Police Command, a High Value Rewards Program (HVRP). In explaining the program to his wife, Colonel McCoid writes, " A very substantial reward is placed on highly placed VC political leaders, as much as $8,000 at the rate on the blackmarket or twice that amount on the official rate of exchange. Our idea is to induce the lower-grade VCI to turn their bosses in for the bounty money." Sadly, says McCoid, "our original proposal ... was watered down by the bleeding hearts, who think placing a price on your enemy's head is excessively cruel! This despite Colby's support."

A conference of police and CORDS personnel, including Tilton, was scheduled for July 23, to select a list of VCI whose names were to be passed down to Phoenix officers in four pilot provinces (Binh Dinh, Quang Nam, Bien Hoa, and Vinh Binh) crucial to Thieu's election in October. Selected VCI were to be district rank or higher, dangerous, and confirmed with enough evidence to convict. Province chiefs, in their role as Phoenix committee chairmen, were to select dossiers and coordinate with the PIOCC. The list was to be approved by the region's military commander, and as stated in Interior Ministry Directive 1223, the "Phung Hoang Bloc of the National Police Command, acting for the Central Phung Hoang Committee, will review and make final selection of the VCI to be placed on the rewards list and will be submitted to the Major General Commander of the National Police, Vice Chairman concurrently Secretary General of the Central Phung Hoang Committee for final approval."

The HVRP, which was to be expanded into all provinces and administered by Phoenix advisers, was tentatively approved on July 31 by Josiah Bennett, director of the Vietnam Working Group; Henry Sizer at the Saigon Embassy's Internal Unit; the State Department's Vietnam desk officer, Lars Hydle; MACV; and the Joint U.S. Public Affairs Office (JUSPAO). How ever, the conference to select HVRP targets was indefinitely postponed as a result of Decree 1042. Promulgated in secret by General Khiem on August 2, 1971, its provisions known only to the Central Security Committee, the decree granted VCI suspects the right to an attorney and the right to appear in person at their trials. As a result, "public action" on the HVRP was deferred until after the election.

On October 3, 1971, Thieu was reelected with nearly 90 percent of the vote. The next day The New York Times reported that more than twenty thousand innocent civilians had been killed under the Phoenix program and that a congressional subcommittee had criticized the Pentagon for not investigating war crimes. A few days later the High Values Reward Program was scrapped by Ambassador Bunker, and plans to phase out American involvement in Phoenix were begun in earnest.

The process had begun on August 11, 1971, when Gage McAfee, a legal adviser to William Colby, submitted his end of tour report. Citing reports that the VCI was actually growing in number, McAfee writes, "There is doubt that the Phung Hoang Program is achieving its desired goal of eliminating the infrastructure. It can be argued that its resources and energy are actually being diverted to other undesirable activities that are ... counter-productive in the context of supporting a viable and responsive government which will provide an effective alternative to the insurgent government." He adds that "some if not the majority of the war results from the social grievances of the part of the population, separate and distinct from the military aggression of the North," and that "No really responsive government should ever need such a program at all."

McAfee notes that An Tri "lacks a legislative base, there being no specific statute enacted by the National Assembly which empowers the Executive in time of war or emergency to administratively detain." He cites the legislature's opposition to Province Security Committees, which, he adds, "were generally acknowledged to be extra-constitutional if not unconstitutional." He rejects as "irrelevant" the argument that no residual responsibility for civilian detainees exists, citing Nuremberg and Vietnam, in which Telford Taylor says that if the GVN did not abide by the Geneva Conventions, "then the original captor power [the United States] must take effective steps to correct the situation, or shall request the return of the prisoners." [26]

McAfee emphasizes that Province Security Committees were not "regularly constituted courts" and that support for them was "a departure from the standards" of Article 3. "From a strictly legal standpoint," he concludes, the Rimestead letter required that the United States either demand the elimination of security committees or take steps to insure that no prisoners captured by U.S. forces were sentenced by them. "Not only are we now in the difficult position of having supported these committees in the past," he writes, "but many Vietnamese now think that Security Committees are as American as apple pie and baseball. The Phung Hoang program itself has always been associated with the Americans and of course the CIA. If the U.S. decides ... to recommend the elimination of these Committees, it might be useful for the Vietnamese ... to blame it all on the U.S. So with the Phung Hoang program in general. If it fades into and is totally absorbed by the Special Police, it might help the Vietnamese to eliminate the bad aftertaste by blaming the entire program on their misguided benefactors." The only alternative, McAfee suggests, was "to force the GVN to make necessary improvements."

But the U.S. government would not go along with McAfee's recommendations that the Stalinist security committees "should die," that trials be made public, or that "The kill quota be eliminated as the ultimate misuse of the body count." Instead, it stalled until the problem could be sloughed off on the GVN. The Defense Department denied any "residual responsibility" whatsoever, and the Saigon Embassy minimized the problem, saying that only "between 1500 and 2500 individuals out of a VCI correction population of about 17,000 are the subject of that responsibility." [27]

The final word on U. S. policy regarding civilian detainees was stated on November 12, 1971, in State Department telegram 220774, which directed the Saigon Embassy to work with the Directorate of Political Security to guarantee "humanitarian treatment of detainees" and to ensure that An Tri was implemented "in terms of fundamental concepts of due process and to improve conditions of internment." This, despite State Department attorney Robert Starr's admission that "We cannot justify secrecy of procedural re- forms in Circular 1042," which failed to provide for judicial review, "meaningful" appeal, "free choice" of an attorney, or the right to cross-examine witnesses. Noting that confessions alone were enough to convict a suspected VCI, Starr urged that "there should be a requirement of corroborating evidence. " He cautioned Bunker that An Tri "is subject to attack on grounds it does not simply provide for emergency detention, but involves actual findings of guilt or innocence and sentencing of persons," and he suggested that Bunker work to implement "new legislation establishing a clear and detailed basis for program."

What Starr envisioned was legislation transferring security committee responsibilities to regularly constituted courts. But that never happened. Until the fall of Saigon, only the CIA-advised Directorate of Political Security could reverse Province Security Committee recommendations to extend detention. In November the GVN did withdraw from security committees the power to recommend An Tri detention against Communist offenders whose sentences had expired, VCI suspects who were released before trial for lack of evidence, and VCI suspects who were referred and had been acquitted. Unless "new factors" were specified. In December Prime Minister Khiem announced a parole and conditional release program "to release selected prisoners and also provide a system for post-release surveillance."

On December 13, 1971, Robert Starr reported to William H. Sullivan: "These reforms are another welcome step in the right direction but fall short of effectively dealing with the underlying problems." [28] The next day the Washington Post printed an article by Peter Osnos headlined U.S. PLAN FAILS TO WIPE OUT VC CADRE. The year 1971 closed without a resolution of An Tri or Phoenix.



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