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A Special Supplement: Vietnam: How Government Became Wolves

The Joint Chiefs of Staff, in February, 1955, foresaw:

…three basic forms in which aggression in Southeast Asia can occur: a) Overt armed attack from outside of the area. b) Overt armed attack from within the area of each of the sovereign states. c) Aggression other than armed, i.e., political warfare, or subversion. [DOD, book X, p. 885]

Overt armed attack from within a sovereign state is Ambassador Stevenson’s concept of “internal aggression.” In defining “political warfare” as a form of aggression, the Joint Chiefs reveal that they comprehend with precision and insight the fundamental position of the US political leadership.

Many other examples can be given, from the Pentagon history, to illustrate the same concept of “internal aggression.” Indigenous forces are carrying out “internal aggression” against regimes chosen to rule by foreign force, and protected from their own populations by this foreign force (allegedly acting in “collective self-defense” against the “aggression”). Ultimately, external force is drawn into the conflict to support the indigenous rebellion, and we hear cries from Washington about the perfidy of the North Vietnamese aggressors and their allies. To cite only the most obvious case, consider the talk of “North Vietnamese aggression” today, aggression that is taking place in areas that were invaded and occupied by American armed forces seven years earlier, and devastated in American military operations. I need not spell out the facts, which have been described in ample detail elsewhere.

The Pentagon Papers provide evidence of a criminal conspiracy of long duration to engage the United States in aggressive war. One may debate the sufficiency of the evidence, but hardly its existence. It is natural, if somewhat ironic, that the Justice Department, instead of investigating the possible criminal conspiracy exposed by the Pentagon Papers, has chosen instead to investigate and prosecute those who revealed these acts to the public. Senator Fulbright has stated, in a different but related connection: “I and some of my colleagues have almost been reduced to the situation where it makes no difference what is put into law, the administration will not abide by it.” He has also expressed his hope that some day “this country will return to its senses and we will then have an opportunity to resurrect the basic principles of law on which this country was founded” (Congressional Record, October 4, 1971). I should only like to add that thousands of draft resisters and deserters and others have reluctantly undertaken civil disobedience on the basis of concerns that are, in my opinion, similar. Having called off the game of obedience to law, the Administration has forfeited its authority to enforce the rules.

The Administration’s attitude toward Congress and the public is of a piece with its concern for legal obligations. The unending record of deceit illustrates much contempt for Congress and the public, in my opinion. For example, Secretary Rusk, testifying before the Senate Foreign Relations Committee on January 28, 1966, stated that by January, 1965, the 325th Division of the North Vietnamese Army had been moved to South Vietnam, an act that constituted “aggression by means of an armed attack” and entitled the US to respond under Article 51 of the UN Charter. He repeated this assertion in testimony on February 18, 1966.

On this crucial matter the Pentagon Papers tell a different story. The first reference to regular North Vietnamese units appears in an “ominous” CIA-DIA memorandum of April 21, 1965, which “reflected the acceptance into the enemy order of battle of one regiment of the 325th PAVN [People’s Army of (North) Vietnam] Division said to be located in Kontum province” (III, p. 438, emphasis added). Chester Cooper, who was responsible for preparing the material on infiltration, writes that by the end of April “it was believed” that one battalion of regular PAVN troops was in South Vietnam at this time (The Lost Crusade, Dodd, Mead, 1970, pp. 276-7).9

Evidently the reports on which this “belief” was based, as well as later reports, were not wholly persuasive. On July 2, in a memorandum to General Goodpaster, John McNaughton states: “I am quite concerned about the increasing probability that there are regular PAVN forces either in the II Corps area or in Laos directly across the border from II Corps” (IV, pp. 291, 277, emphasis added). On July 14, the Joint Chiefs included only one regiment of the 325th PAVN Division in their estimate of 48,500 “Viet Cong organized combat units” (IV, p. 295), and a Special National Intelligence Estimate of July 23 predicted that if the US increased its strength in South Vietnam to 175,000 by November 1, then, in order to offset this increase, the Communists would probably introduce a PAVN force totaling 20,000 to 30,000 men by the end of 1965 (III, p. 484f.).

For comparison, note that on April 21, 1965, Secretary McNamara reported that 33,500 US troops were in South Vietnam in addition to 2,000 Koreans who had been dispatched on January 8, 1965 (III, pp. 706, 139). He further reported the unanimous recommendation of the Honolulu Meeting of the preceding day—the day before the “ominous” CIA-DIA report—that US forces be raised to 82,000 supplemented with 7,250 Korean and Australian troops. On July 1, the day before McNaughton expressed his concern that there might be regular PAVN forces in or near the II Corps area of South Vietnam, planned US deployments were 85,000 troops (III, p. 473). In mid-July, when the JCS reported one PAVN regiment in the South, the President approved the request that the US troop level be raised to 175,000 in 1965, with another 100,000 recommended for 1966, and an estimated US killed-in-action of 500 per month (III, pp. 396, 416; IV, pp. 297, 299). Recall that the US troop level had reached 23,000 by the end of 1964 (II, p. 160) and that US forces had been directly engaged in combat operations for three years, at that point.

Conceivably, one might argue that Secretary Rusk’s testimony of January and February, 1966, that a North Vietnamese division was, by January, 1965, in South Vietnam is not, strictly, inconsistent with the record presented in the Pentagon Papers and elsewhere regarding the information available to the Administration through the summer of 1965. One might speculate that information obtained after this period, but before Rusk’s testimony, revealed that the PAVN 325th Division had in fact infiltrated into South Vietnam, as a division, by January, 1965, that is, prior to the US escalation of the war in February.

There are two difficulties in this defense, the only possible one. In the first place, there is no evidence in the Pentagon Papers or in any other source that the speculation is correct. Second and more important, even if it were correct it would be irrelevant. Rusk’s testimony was an effort to justify the US escalation in February as collective self-defense against armed attack, as permitted under Article 51 of the Charter. Aside from a variety of other objections (e.g., Article 51 refers to armed attack against a member of the United Nations; the 17th parallel is not a territorial boundary under the Geneva Agreements, etc.), the justification would have force only if it had been known at the time of the US escalation that an armed attack had taken place. The record makes it absolutely clear that this was not the case. Hence the justification fails under any possible assumption with regard to unknown facts.

Suppose, for example, that after invading Czechoslovakia the Russians had discovered that, unknown to them, some armed attack had taken place against Czechoslovakia, say, by West German forces. They could not have argued that this “discovery” justified their armed intervention on the grounds of Article 51. It is therefore clear that Rusk’s testimony consisted of either false statements or fraudulent representations. It might be noted that “false, fictitious, or fraudulent statements or representations” by government officials are a crime, punishable by heavy fine or imprisonment (cf. Scott, The War Conspiracy, Introduction).

The contempt for the public is of the same order. For example, on February 26, 1966, the President stated: “We do not have on my desk at the moment any unfilled requests from General Westmoreland” (New York Times Edition, Pentagon Papers, p. 467). In fact, there was at this time a request to double the troop commitment, and the President had on his desk a memorandum from the Secretary of Defense stating that with the deployments recommended (400,000 by the end of 1966 and perhaps more than 600,000 the following year), US killed-in-action could be expected to reach 1,000 per month (IV, pp. 309, 623-4). The Administration view was accurately expressed by William Bundy when he stated that if policies are to be modified, then “a conditioning of the US public” is necessary. (He added that where this cannot be done with sufficient rapidity, the executive may find itself trapped by its earlier misrepresentations—IV, p. 611.)

It goes without saying that government officials have no legal authority to misrepresent matters to the public; on the contrary, as noted above, such actions are criminal. Furthermore, the executive branch of the government has no legal authority, under a reasonable interpretation of the First Amendment, to harass, indict, or prosecute those who expose its record of deceit, for example, by making public the Pentagon Papers history.

The government argues that First Amendment rights are outweighed by the need to prosecute those who transmit classified information and documents. Whatever one thinks about the “balancing doctrine,” it clearly applies only when the government represents some legitimate public interest. It would in my opinion be farcical to argue that the government interest in protecting itself from the exposure of its misdeeds outweighs First Amendment rights. In this case, the public interest surely lies squarely in the strict and literal interpretation of the First Amendment, which offers the citizen some protection against the state (recall the historical context of the Bill of Rights), for it at least makes it possible for the citizen to discover what the state has done or plans to do, so that he can attempt to prevent such acts, if he so chooses.

Concerning the government claim that release of the Pentagon Papers violates the Espionage Act, which makes it a crime to transmit documents “relating to the national defense,” it may be recalled that Congress has passed no law prohibiting the transmission of documents relating to a history of deception and aggression. There is no plausible theory under which the record of the Pentagon Papers can be interpreted as relating to the national defense. On the contrary, this is a record of the use of force in international affairs in a manner entirely inconsistent with the purposes of the United Nations, and thus, strictly speaking, in violation of the supreme law of the land.

The general attitude of the government toward American democracy was revealed in a striking way during the deliberations of 1964. Plans for the February, 1965, escalation were undertaken with an awareness of the necessity of waiting until the President had congressional approval and a popular mandate. The planning through 1964 places “D-Day” shortly after the elections. After the Tonkin Gulf incident and the President’s “smashing victory at the polls,” his “feasible options increased,” the Pentagon historian relates: “President Johnson was now armed with both a popular mandate and broad Congressional authorization” and could therefore proceed (III, p. 4f.). During the September deliberations, “unity of domestic American opinion” was regarded as a precondition to escalation, but “during the November debates, this is no longer an important factor.” In the interim, the President had been elected “with an overwhelming mandate” (III, pp. 113-6).

  1. 9

    See Theodore Draper, Abuse of Power (Viking, 1967), an important early study which demonstrated clearly that access to classified information was not needed to refute the propaganda and outright fabrications of government spokesmen.

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