Phoenix Program (66 page)

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.”
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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.”
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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?”
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“That is correct,” Colby said, producing statistics to show that only hard-core Communist offenders generally had their sentences extended indefinitely by the Central Security Committee, while many category Cs were released.
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“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 still be sent to the PIC.”
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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.”
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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.”
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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.”
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Colby: I think that is an example of exactly the situation that this program is designed to eliminate.”
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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?”
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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 terms 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.”
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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.”
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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.”
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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 targetted 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.”
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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.”
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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.”
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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.”
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“They all died?” Congressman Reid asked increduously.

“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.”
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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.”
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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.”
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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 filed 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 the 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.”
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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.”