A CounterPunch Special Report
Revised version of first edition published May 17, 2001
Bob Kerrey, CIA War Crimes,
And The Need For A War Crimes Trial
BY NOW everybody knows that former Senator Bob Kerrey led a seven-member team of Navy Seals into Thanh Phong village in February 1969, and murdered in cold blood more than a dozen women and children.
What hardly anyone knows, and what no one in the press is talking about (although many of them know), is that Kerrey was on a CIA mission, and its specific purpose was to kill those women and children. It was illegal, premeditated mass murder and it was a war crime.
And it’s time to hold the CIA responsible. It’s time for a war crimes tribunal to examine the CIA’s illegal activities during and since the Vietnam War.
War Crimes As Policy
War crimes were a central was part of a CIA strategy for fighting the Vietnam War. The strategy was known as Contre Coup, and it was the manifestation of a belief that the war was essentially political, not military, in nature. The CIA theorized that it was being fought by opposing ideological factions, each one amounting to about five percent of the total population, while the remaining ninety percent was uncommitted and wanted the war to go away.
According to the CIA’s mythology, on one side were communist insurgents, supported by comrades in Hanoi, Moscow and Peking. The communists fought for land reform, to rid Vietnam of foreign intervention, and to unite the north and south. The other faction was composed of capitalists, often Catholics relocated from North Vietnam in 1954 by the CIA. This faction was fighting to keep South Vietnam an independent nation, operating under the direction of quiet Americans.
Caught in the crossfire was the silent majority. The object shared by both factions was to win these undecided voters over to its side.
Contre Coup was the CIA’s response to the realization that the Communists were winning the war for the hearts and minds of the people. It also was a response to the belief that they were winning through the use of psychological warfare, specifically, selective terror the murder and mutilation of specific government officials.
In December 1963, Peer DeSilva arrived in Saigon as the CIA’s station chief. He claims to have been shocked by what he saw. In his autobiography, SubRosa, DeSilva describes how the VC had “impaled a young boy, a village chief, and his pregnant wife on sharp poles. To make sure this horrible sight would remain with the villagers, one of the terror squad used his machete to disembowel the woman, spilling he fetus onto the ground.”
“The Vietcong,” DeSilva said, “were monstrous in the application of torture and murder to achieve the political and psychological impact they wanted.”
But the methodology was successful and had tremendous intelligence potential, so DeSilva authorized the creation of small “counter-terror teams,” designed “to bring danger and death to the Vietcong functionaries themselves, especially in areas where they felt secure.”
How Counter-Terror Worked In Vietnam
Thanh Phong village was one of those areas where Vietcong functionaries felt secure. It was located in Kien Hoa Province, along the Mekong Delta. One of Vietnam’s most densely populated provinces, Kien Hoa was precariously close to Saigon, and is criss-crossed with waterways and rice paddies. It was an important rice production area for the insurgents as well as the Government of Vietnam, and thus was one of the eight most heavily infiltrated provinces in Vietnam. The estimated 4700 VC functionaries in Kien Hoa accounted for more than five percent of the insurgency’s total leadership. Operation Speedy Express, a Ninth Infantry sweep through Kien Hoa in the first six months of 1969, killed an estimated 11,000 civilians-supposedly VC sympathizers.
These functionaries formed what the CIA called the Vietcong Infrastructure (VCI). The VCI consisted of members of the People’s Revolutionary Party, the National Liberation Front, and other Communist outfits like the Women’s and Student’s Liberation Associations. Its members were politicians and administrators managing committees for business, communications, security, intelligence, and military affairs. Among their main functions were the collection of taxes, the recruitment of young men and women into the insurgency, and the selective assassination of GVN officials.
As the CIA was well aware, Ho Chi Minh boasted that with two cadre in every hamlet, he could win the war, no matter how many soldiers the Americans threw at him.
So the CIA adopted the Ho’s strategy-but on a grander and bloodier scale. The object of Contre Coup was to identify and terrorize each and every individual VCI and his/her family, friends and fellow villagers. To this end the CIA in 1964 launched a massive intelligence operation called the Provincial Interrogation Center Program. The CIA (employing the US company Pacific Architects and Engineers) built an interrogation center in each of South Vietnam’s 44 provinces. Staffed by members of the brutal Special Police, who ran extensive informant networks, and advised by CIA officers, the purpose of the PICs was to identify, through the systematic “interrogation” (read torture) of VCI suspects, the membership of the VCI at every level of its organization; from its elusive headquarters somewhere along the Cambodian border, through the region, city, province, district, village and hamlet committees.
The “indispensable link” in the VCI was the District Party Secretary the same individual Bob Kerrey’s Seal team was out to assassinate in its mission in Thanh Phong.
Initially the CIA had trouble finding people who were willing to murder and mutilate, so the Agency’s original “counter-terror teams” were composed of ex-convicts, VC defectors, Chinese Nungs, Cambodians, Montagnards, and mercenaries. In a February 1970 article written for True Magazine, titled “The CIA’s Hired Killers,” Georgie-Anne Geyer compared “our boys” to “their boys” with the qualification that, “Their boys did it for faith; our boys did it for money.”
The other big problem was security. The VC had infiltrated nearly every facet of the GVN-even the CIA’s unilateral counter-terror program. So in an attempt to bring greater effectiveness to its secret war, the CIA started employing Navy Seals, US Army Special Forces, Force Recon Marines, and other highly trained Americans who, like Bob Kerrey, were “motivationally indoctrinated” by the military and turned into killing machines with all the social inhibitions and moral compunctions of a Timmy McVeigh. Except they were secure in the knowledge that what they were doing was, if not legal or moral, fraught with Old Testament-style justice, rationalizing that the Viet Cong did it first.
Eventually the irrepressible Americans added their own improvements. In his autobiography Soldier, Anthony Herbert describes arriving in Saigon in 1965, reporting to the CIA’s Special Operations Group, and being asked to join a top-secret psywar program. What the CIA wanted Herbert to do, “was to take charge of execution teams that wiped out entire families.”
By 1967, killing entire families had become an integral facet of the CIA’s counter-terror program. Robert Slater was the chief of the CIA’s Province Interrogation Center Program from June 1967 through 1969. In a March 1970 thesis for the Defense Intelligence School, titled “The History, Organization and Modus Operandi of the Viet Cong Infrastructure,” Slater wrote, “the District Party Secretary usually does not sleep in the same house or even hamlet where his family lived, to preclude any injury to his family during assassination attempts.”
But, Slater added, “the Allies have frequently found out where the District Party Secretaries live and raided their homes: in an ensuing fire fight the secretary’s wife and children have been killed and injured.”
This is the intellectual context in which the Kerrey atrocity took place. This CIA strategy of committing war crimes for psychological reasons to terrorize the enemy’s supporters into submission also is what differentiates Kerrey’s atrocity, in legal terms, from other popular methods of mass murdering civilians, such as bombs from the sky, or economic boycotts.
Yes, the CIA has a global, illegal strategy of terrorizing people, although in typical CIA lexicon it’s called “anti-terrorism.”
When you’re waging illegal warfare, language is every bit as important as weaponry and the will to kill. As George Orwell or Noam Chomsky might explain, when you’re deliberately killing innocent women and children, half the court-of-public-opinion battle is making it sound legal.
Three Old Vietnam Hands in particular stand out as examples of this incestuous relationship. Neil Sheehan, CIA-nik and author of the aptly titled Bright Shining Lie, recently confessed that in 1966 he saw US soldiers massacre as many as 600 Vietnamese civilians in five fishing villages. He’d been in Vietnam for three years by then, but it didn’t occur to him that he had discovered a war crime. Now he realizes that the war crimes issue was always present, but still no mention of his friends in the CIA.
Former New York Times reporter and author of The Best and The Brightest, David Halberstam, defended Kerrey on behalf of the media establishment at the New School campus the week after the story broke. CIA flack Halberstam described the region around Thanh Phong as “the purest bandit country,” adding that “by 1969 everyone who lived there would have been third-generation Vietcong.” Which is CIA revisionism at its sickest.
Finally there’s New York Times reporter James Lemoyne. Why did he never write any articles linking the CIA to war crimes in Vietnam? Because his brother Charles, a Navy officer, was in charge of the CIA’s counter-terror teams in the Delta in 1968.
Phoenix Comes To Thanh Phong
The CIA launched its Phoenix Program in June 1967, after 13 years of tinkering with several experimental counter-terror and psywar programs, and building its network of secret interrogation centers. The stated policy was to replace the bludgeon of indiscriminate bombings and military search and destroy operations which had alienated the people from the Government of Vietnam with the scalpel of assassinations of selected members of the Viet Cong Infrastructure.
A typical Phoenix operation began in a Province Interrogation Center where a suspected member of the VCI was brought for questioning. After a few days or weeks or months undergoing various forms of torture, the VCI suspect would die or give the name and location of his VCI comrades and superiors. That information would be sent from the Interrogation Center to the local Phoenix office, which was staffed by Special Branch and Vietnamese military officers under the supervision of CIA officers. Depending on the suspected importance of the targeted VCI, the Phoenix people would then dispatch one of the various action arms available to it, including Seal teams like the one Bob Kerrey led into Thanh Phong.
In February 1969, the Phoenix Program was still under CIA control. But because Kien Hoa Province was so important, and because the VCI’s District Party Secretary was supposedly in Thanh Phong, the CIA decided to handle this particular assassination and mass murder mission without involving the local Vietnamese. So instead of dispensing the local counter-terror team, the CIA sent Kerrey’s Raiders.
And that, very simply, is how it happened. Kerrey and crew admittedly went to Thanh Phong to kill the District Party Secretary, and anyone else who got in the way, including his family and all their friends.
Phoenix Comes Home To Roost
By 1969 the CIA, through Phoenix, was targeting individual VCI and their families all across Vietnam. Over 20,000 people were assassinated by the end of the year and hundreds of thousands had been tortured in Province Interrogation Centers.
On 20 June 1969, the Lower House of the Vietnamese Congress held hearings about abuses in the Phoenix VCI elimination program. Eighty-six Deputies signed a petition calling for its immediate termination. Among the charges: Special Police knowingly arrested innocent people for the purpose of extortion; people were detained for as long as eight months before being tried; torture was commonplace. Noting that it was illegal to do so, several deputies protested instances in which American troops detained or murdered suspects without Vietnamese authority. Others complained that village chiefs were not consulted before raids, such as the one on Thanh Phong.
After an investigation in 1970, four Congresspersons concluded that the CIA’s Phoenix Program violated international law. “The people of these United States,” they jointly stated, “have deliberately imposed upon the Vietnamese people a system of justice which admittedly denies due process of law,” and that in doing so, “we appear to have violated the 1949 Geneva Convention for the protection of civilian people.”
During the hearings, U.S. Representative Ogden Reid said, “if the Union had had a Phoenix program during the Civil War, its targets would have been civilians like Jefferson Davis or the mayor of Macon, Georgia.”
But the American establishment and media denied it then, and continue to deny it until today, because Phoenix was a genocidal program — and the CIA officials, members of the media who were complicit through their silence, and the red-blooded American boys who carried it out, are all war criminals. As Michael Ratner a lawyer at the Center for Constitutional Rights told CounterPunch: “Kerrey should be tried as a war criminal. His actions on the night of February 24-25, 1969 when the seven man Navy Seal unit which he headed killed approximately twenty unarmed Vietnamese civilians, eighteen of whom were women and children was a war crime. Like those who murdered at My Lai, he too should be brought into the dock and tried for his crimes.”
Phoenix, alas, also was fiendishly effective and became a template for future CIA operations. Developed in Vietnam and perfected with the death squads and media blackout of Afghanistan and El Salvador, it is now employed by the CIA around the world: in Colombia, in Kosovo, in Ireland with the British MI6, and in Israel with its other kindred spirit, the Mossad.
The paymasters at the Pentagon will keep cranking out billion dollar missile defense shields and other Bush league boondoggles. But when it comes to making the world safe for international capitalism, the political trick is being more of a homicidal maniac, and more cost effective, than the terrorists.
Incredibly, Phoenix has become fashionable, it has adhered a kind of political cachet. Governor Jesse Ventura claims to have been a Navy Seal and to have “hunted man.” Fanatical right-wing US Representative Bob Barr, one of the Republican impeachment clique, has introduced legislation to “re-legalize” assassinations. David Hackworth, representing the military establishment, defended Kerrey by saying “there were thousands of such atrocities,” and that in 1969 his own unit committed “at least a dozen such horrors.” Jack Valenti, representing the business establishment and its financial stake in the issue, defended Kerrey in the LA Times, saying, “all the normalities (sic) of a social contract are abandoned,” in war.
A famous Phoenix operation, known as the My Lai Massacre, was proceeding along smoothly, with a grand total of 504 Vietnamese women and children killed, when a soldier named Hugh Thompson in a helicopter gunship saw what was happening. Risking his life to preserve that “social contract,” Thomson landed his helicopter between the mass murderers and their victims, turned his machine guns on his fellow Americans, and brought the carnage to a halt.
Same with screenwriter and journalist Bill Broyles, Vietnam veteran, and author Brothers In Arms, an excellent book about the Vietnam War. Broyles turned in a bunch of his fellow Marines for killing civilians.
If Thompson and Broyles were capable of taking individual responsibility, everyone is. And many did.
There is no doubt that Bob Kerrey committed a war crime. As he admits, he went to Vietnam with a knife clenched between his teeth and did what he was trained to do kidnap, assassinate and mass murder civilians. But there was no point to his atrocity as he soon learned, no controlling legal authority. He became a conflicted individual. He remembers that they killed women and children. But he thinks they came under fire first, before they panicked and started shooting back. The fog of war clouds his memory
But there isn’t that much to forget. Thanh Phong was Kerrey’s first mission, and on his second mission a grenade blew off his foot, abruptly ending his military career.
Plus which there are plenty of other people to remind Kerrey of what happened, if anyone will listen. There’s Gerhard Klann, the Seal who disputes Kerrey’s account, and two Vietnamese survivors of the raid, Pham Tri Lanh and Bui Thi Luam, both of whom corroborate Klann’s account, as does a veteran Viet Cong soldier, Tran Van Rung.
As CBS News was careful to point out, the Vietnamese were former VC and thus hostile witnesses and because there were slight inconsistencies in their stories, they could not be believed. Klann became the target of Kerrey’s pr machine, which dismissed as an alcoholic with a chip on his shoulder.
Then there is John DeCamp. An army captain in Vietnam, DeCamp worked for the organization under CIA executive William Colby that ostensibly managed Phoenix after the CIA let it go in June 1969. DeCamp was elected to the Nebraska State Senate and served until 1990. A Republican, he claims that Kerrey led an anti-war march on the Nebraska state capitol in May 1971. DeCamp claims that Kerrey put a medal, possibly his bronze star, in a mock coffin, and said, “Viet Cong or North Vietnamese troops are angelic compared with the ruthless Americans.”
Kerrey claims he was in Peru visiting his brother that day. But he definitely accepted his Medal of Honor from Richard Nixon on 14 May 1970, a mere ten days after the Ohio National guard killed four student protestors at Kent State. With that badge of honor pinned on his chest, Kerrey began walking the gilded road to success. Elected Governor of Nebraska in November 1982, he started dating Deborah Winger, became a celebrity hero, was elected to the US Senate, became vice-chair of Senate Committee on Intelligence, and in 1990 staged a run for president. One of the most highly regarded politicians in America, he showered self-righteous criticism on draft dodger Bill Clinton’s penchant for lying.
Bob Kerrey is a symbol of what it means to be an American, and the patriots have rallied to his defense. And yet Kerrey accepted a bronze star under false pretenses, and as John DeCamp suggests, he may have been fragged by his fellow Seals. For this, he received the Medal of Honor.
John DeCamp calls Bob Kerrey “emotionally disturbed” as a result of his Vietnam experience.
And Kerrey’s behavior has been pathetic. In order to protect himself and his CIA patrons from being tried as a war criminals, Bob Kerrey has become a pathological liar too. Kerrey says his actions at Than Phong were an atrocity, but not a war crime. He says he feels remorse, but not guilt. In fact, he has continually rehabbed his position on the war itself-moving from an opponent to more recently an enthusiast. In a 1999 column in the Washington Post, for example, Kerrey said he had come to view that Vietnam was a “just war. “Was the war worth the effort and sacrifice, or was it a mistake?” Kerrey wrote. “When I came home in 1969 and for many years afterward, I did not believe it was worth it. Today, with the passage of time and the experience of seeing both the benefits of freedom won by our sacrifice and the human destruction done by dictatorships, I believe the cause was just and the sacrifice not in vain.”
Then at the Democratic Party Convention in Los Angeles last summer Kerrey lectured the delegates that they shouldn’t be ashamed of the war and that they should treat Vietnam veterans as war heroes: “I believe I speak for Max Baucus and every person who has ever served when I say I never felt more free than when I wore the uniform of our country. This country – this party – must remember.” Free? Free to murder women and children. Is this a consciousness of guilt or immunity?
CBS News also participated in constructing a curtain of lies. As does every other official government or media outlet that knows about the CIA’s Phoenix Program, which continues to exist and operate worldwide today, but fails to mention it.
Because if the name of one targeted Viet Cong cadre can be obtained, then all the names can be obtained, and then a war crimes trial becomes imperative. And that’s the last thing the Establishment will allow to happen.
Average Americans, however, consider themselves a nation ruled by laws and an ethic of fair play, and with the Kerry confession comes an opportunity for America to redefine itself in more realistic terms. The discrepancies in his story beg investigation. He says he was never briefed on the rules of engagement. But a “pocket card” with the Laws of Land Warfare was given to each member of the US Armed Forces in Vietnam.
Does it matter that Kerrey would lie about this? Yes. General Bruce Palmer, commander of the same Ninth Division that devastated Kien Koa Province in 1969, objected to the “involuntary assignment” of American soldiers to Phoenix. He did not believe that “people in uniform, who are pledged to abide by the Geneva Conventions, should be put in the position of having to break those laws of warfare.”
It was the CIA that forced soldiers like Kerrey into Phoenix operations, and the hidden hand of the CIA lingers over his war crime. Kerrey even uses the same rationale offered by CIA officer DeSilva. According to Kerrey, “the Viet Cong were a thousand per cent more ruthless than” the Seals or U.S. Army.
But the Geneva Conventions, customary international law and the Uniform Code of Military Justice all prohibit the killing of noncombatant civilians. The alleged brutality of others is no justification. By saying it is, Kerrey implicates the people who generated that rationale: the CIA. That is why there is a moral imperative to scrutinize the Phoenix Program and the CIA officers who created it, the people who participated in it, and the journalists who covered it up to expose the dark side of our national psyche, the part that allows us to employ terror to assure our world dominance.
To accomplish this there must be a war crimes tribunal. This won’t be easy. The US government has gone to great lengths to shield itself from such legal scrutiny, at the same it selectively manipulates international institutions, such as the UN, to go after people like Slobodan Milosevic.
According to human rights lawyer Michael Ratner the legal avenues for bringing Kerrey and his cohorts to justice are quite limited. A civil suit could be lodged against Kerrey by the families of the victims brought in the United States under the Alien Tort Claims Act. “These are the kinds of cases I did against Gramajo, Pangaitan (Timor),” Ratner told us. “The main problem here is that it is doubtful the Vietnamese would sue a liberal when they are dying to better relations with the US. I would do this case if could get plaintiffs–so far no luck.” According to Ratner, there is no statute of limitations problem as it is newly discovered evidence and there is a stron argument particularly in the criminal context that there is no statute of limitations for war crimes.
But criminal cases in the US present a difficult, if not impossible, prospect. Now that Kerrey is discharged from the Navy, the military courts, which went after Lt. Calley for the My Lai massacre, has no jurisdiction over him. “As to criminal case in the US–my pretty answer is no,” says Ratner. “The US first passed a war crimes statute (18 USC sec. 2441 War Crimes) in 1996–that statute makes what Kerrey did a war crime punishable by death of life imprisonment–but it was passed after the crime and criminal statutes are not retroactive.” In 1988, Congress enacted a statute against genocide, which was might apply to Kerrey’s actions, but it to can’t be applied retroactively. Generally at the time of Kerrey’s acts in Vietnam, US criminal law did not extend to what US citizens did overseas unless they were military.
[As a senator, Kerrey, it should be noted, voted for the war crimes law, thus opening the opportunity for others to be prosecuted for crimes similar to those he that committed but is shielded from.]
The United Nations is a possibility, but a long shot. They could establish an ad hoc tribunal such as it did with the Rwanda ICTR and Yugoslavia ICTY. “This would require action by UN Security council could do it, but what are the chances?” says Ratner. “There is still the prospect for a US veto What that really points out is how those tribunals are bent toward what the US and West want.”
Prosecution in Vietnam and or another country and extradition is also a possibility. It can be argued that war crimes are crimes over which there is universal jurisdiction–in fact that is obligation of countries-under Geneva Convention of 1948–to seek out and prosecute war criminals. “Universal jurisdiction does not require the presence of the defendant–he can be indicted and tried in some countries in absentia–or his extradition can be requested”, says Ratner. “Some countries may have statutes permitting this. Kerrey should check his travel plans and hire a good lawyer before he gets on a plane. He can use Kissinger’s lawyer.”
Douglas Valentine is the author of The Phoenix Program, the only comprehensive account of the CIA’s torture and assassination operation in Vietnam, as well as TDY a chilling novel about the CIA and the drug trade.