References

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2.

3.

4.

5.

6.

7.

8.

9.

10.

See Willard A. Heaps, Riots U.S.A.-1765-1965 (New York: Seabury Press, 1966); and Lawrence Lader, "New York's Bloodiest Week," American Heritage, June, 1959, pp. 44-49, 95-98.

See Twain's polemical writings, “To the Person Sitting in Darkness,” and “On
the Killing of 400 Moros." For a scholarly development of such policies and
attitudes see Walter La Feber, The New Empire: An Interpretation of American
Expansion 1860-1898 (Ithaca, New York: Cornell University Press, 1963).
Cited in Raymond Leslie Buell, Cuba and the Platt Amendment, Foreign Policy
Association, New York, April 1929, p. 52.

On May 2, 1965, President Johnson first alluded to an international conspiracy
in the Dominican crisis, by announcing, "We will defend our nation against all
those who seek to destroy not only the United States but every free country in
the hemisphere" (New York Times, May 3, 1965, p. 10). On May 5, the United
States Government released its famous list (later revised downwards) of 54
"Communist and Castroist" leaders in the Bosch forces. Referring to these ele-
ments, Under-Secretary of State Thomas Mann claimed that "left-wing totali-
tarians that are members of the Communist apparatus are not really indigenous
forces. These are, rather, instruments of Sino-Soviet military power." (New
York Times, May 9, 1965, IV, 3).

New York Times, March 9, 1968, p. 2.

London Daily Mirror, July 4, 1965.

President Johnson, speaking in New York, August 12, 1964, as quoted in
Theodore Draper, Abuse of Power (New York: Viking Press, 1967), p. 66. See
also the President's speeches of August 29 and September 28, 1964 (loc. cit., p. 67).
U.S. Department of State Bulletin, August 31, 1964, p. 299.

All pertinent articles and the final declaration of the conference are reprinted in
Vietnam: History, Documents and Opionions On A Major World Crisis, ed. Mar-
vin E. Gettleman (Greenwich, Conn.: Fawcett, 1965). The entire text can be
found in George McTurnan Kahin and John W. Lewis, The United States in Vietnam
(New York: Dial, 1967).

Discussions to work out arrangements for elections throughout Vietnam in 1956
were scheduled by the Geneva Agreements to begin after July 20, 1955, between
"the competent representative authorities of the two Zones."

As legal successor to the French, Diem was either bound by the terms of this armistice, politically as well as militarily, or obliged to turn authority in the South back to French until the elections were held.... The Eisenhower Administration was advised of this logical conclusion at the SEATO meeting in February 1955. There the United States was cautioned by its allies that SEATO would not function if a South Vietnamese refusal to hold the required elections resulted in an attack from the North.... Nevertheless, backed by Washington, Diem declared on September 21 that "... there can be no question of a conference, even less of negotiations" with the Hanoi Government [Times (London), Sept. 22, 1965]. Diem adamantly held to his position. The election date of July 1956 passed with Diem still refusing even to discuss the possibility of sitting down with Vietminh representatives to discuss the modalities of such elections. In this stand he continued to receive warm American encouragement and the fullest American diplomatic backing. (Kahin and Lewis, op. cit., p. 82); cf. Philippe Devillers, "Ngo Dinh Diem and the Struggle for Reunification in Vietnam," in Gettleman, op. cit., pp. 210-21.) For a fuller study of this period, consult F. Weinstein, Vietnam's Unheld Elections (Cornell University South East Asia Program Data Paper No. 60, 1966).

American responsibility for Diem's intransigence has sometimes been denied, by pointing to Secretary of State Dulles' statement on June 28, 1955, that, “We are not afraid at all of elections, provided they are held under conditions of general freedom which the Geneva armistice agreement calls for. It these conditions can be provided we would be in favor of elections."... (American Foreign Policy: Current Documents 1950-1955, II, 2404).

56

11.

12.

As, however, the Dulles notion of general freedom was unlikely to prevail in North Vietnam, it was quite consistent for him to agree with Diem, in their meetings of March 14, 1956, "that present conditions would not permit free elections as provided in the 1954 Geneva armistice agreement for Vietnam,” (New York Times, March 15, 1956, p. 12). On June 1, 1956, Assistant Secretary of State for Far Eastern Affairs Walter S. Robertson publicly ridiculed the notion of “socalled 'free elections,' ” using the arguments of the State Department's Blue Book in 1961. (See note 11).

Meanwhile North Vietnam, the Soviet Union, and mainland China repeatedly and vigorously protested Diem's failure to hold consultations or a general election (cf. e.g. New York Times, May 13, 1956, p. 38; July 18, 1956, p. 5). The efforts in 1965 of William Bundy and other government spokesmen to blame North Vietnam for the failure to hold elections contributed not a little to the growing alienation of college students, and their awareness of a "credibility gap.” "It was the Communists' calculation that nationwide elections scheduled in the Accords for 1956 would turn all of Viet-Nam over to them. . . . The authorities in South Viet-Nam refused to fall into this well-laid trap .. The Government in the South had never signed the Geneva Accords and was not bound by their provisions. It refused to take part in a procedure that threatened its country with absorption into the Communist bloc." ("A Threat to the Peace: North Viet-Nam's Effort to Conquer South Viet-Nam,” U.S. Department of State Publication 7308 Far Eastern Series 110 Dec. 1961, pp. 3-4.)

The government's claim that the guerillas were directed from Hanoi was based on the claim that, according to U.S. News and World Report, (Oct. 7, 1963, p. 56). "Between 5 and 10 percent of the so-called 'hard core' guerillas were trained in Communist North Vietnam. . . . Most of these are southern-born Vietnamese who were taken to the North by their pro-Communist families" (in accordance with the military provisions of the 1954 Agreements). The hard-core guerillas were estimated to compromise between 20 and 25 percent of the total number. The claim of Hanoi's leadership amounted therefore to the contention that between 1 percent and 2.5 percent of their numbers had received training in North Vietnam, the majority of whom had been regrouped there from their native South Vietnam in 1954 as part of the Geneva Accords. New York Times, October 23, 1966; cf. February 10, 1966. Vietnam: Lotus in a Sea of Fire (New York: Hill and Wang, 1967), p. 68. 15. President Johnson himself voiced this theory in his famous "unconditional discussions" speech of April 7, 1965:

13.

14.

16.

"Over this war-and all Asia-is another reality: the deepening shadow of
Communist China. The rulers in Hanoi are urged on by Peiping. This is a
regime which has destroyed freedom in Tibet, which has attacked India,
and has been condemned by the United Nations for aggression in Korea.
It is a nation which is helping the forces of violence in almost every con-
tinent. The contest in Vietnam is part of a wider pattern of aggressive
purposes." (Pattern for Peace in Southeast Asia," U.S. Dept of State Publica-
tion 1872, April 1965, p. 3)

Yet when the President uttered these words it was already clear that Chinese
military support for the war was strictly limited; and the State Department had
already received numerous reports that, in contradistinction to the more in-
transigent Chinese position, the North Vietnamese were prepared to envisage a
reconvening of the 1954 Geneva Conference. The theme of Chinese instigation
recurs in many of President Johnson's speeches, e.g. July 28, 1965.
Appendix D to the White Paper listed the captured enemy-manufactured weapons
in an 18-month period as 72 rifles, 64 submachine guns, 15 carbines, 8 machine
guns, 5 pistols, 4 mortars, 3 recoilless 75-mm rifles, 3 recoilless 57-mm guns, 2
bazookas, 2 rocket launchers, and 1 grenade launcher. According to Pentagon
figures obtained by I. F. Stone from the Pentagon press office, in the three years
1962-64 the guerillas had captured 27,400 weapons, while giving up 15,100
weapons, or an average of 7,550 for each 18 months. This roughly constituted
only 2.5 percent of the weapons captured in the same period (during which
23,500 American troops were introduced into Vietnam). Much of the remaining
97.5 percent, presumably. was of American origin, (I. F. Stone's Weekly, March

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

8, 1965). The estimate that only 2.5 percent of captured Viet Cong weapons
were Communist-manufactured is confirmed by an earlier U.S. estimate of 2 per-
cent (Baltimore Sun, October 14, 1963), and by the statement of an unnamed
senior U.S. military adviser in Saigon that 90 percent of Viet Cong weapons came
from the United States (New York Times, June 18, 1964, p. 5).

The U.S. Government's arguments for the legality of its intervention are sum-
marized in "The Legality of United States Participation in the Defense of Viet-
Nam," Memorandum from the Department of State, Office of the Legal Adviser,
March 4, 1966 (reprinted in Congressional Record, March 10, 1966, pp. 5503-
09). This memorandum is contained as Appendix I in the answering document
prepared by the Lawyers Committee On American Policy Towards Vietnam,
Vietnam and International Law: The Illegality of United States Military Involve-
ment (New York: O'Hare Books, 1967), pp. 113-130. The extensive legal de-
bate is usefully summarized, with relevant citations, by John H. Messing, "Ameri-
can Actions in Vietnam: Justifiable in International Law?" Stanford Law Re-
view, XIX (1966-67), pp. 1307-1336. Among the more recent law review
articles which bear on the same subject are J. K. Andonian, "Law and Vietnam,"
American Bar Association Journal, LIV (May 1968), pp. 457-459; "Political
Settlement for Vietnam: the 1954 Geneva Conference and its Current Implica-
tions,” Virginia Journal of International Law, VIII (Dec. 1968), p. 4; E. P.
Deutsch, "Legality of the War in Vietnam," Washburn Law Journal, VII (Winter
1968), pp. 153-186; L. R. Velvel, "War in Vietnam: Unconstitutional, Justici-
able, and Jurisdictionally Attackable,” Kansas Law Review, XVI (June 1968),
pp. 449-503e.

Why Vietnam, U. S. Government Publication, August 20, 1965, p. 5.
See President Eisenhower's letter to Diem of October 23, 1954, emphasizing
the dependency of any economic aid on forthcoming "assurances" and "per-
formance" in the area of "needed reforms." No mention is made of military
assistance in Department of State Bulletin, XXXI, November 15, 1954, p. 735f.
It is true, however, that the SEATO treaty, drawn up at Secretary Dulles' urging
in the wake of Dienbienphu and the American sponsorship of Diem, does envi-
sion the defense of South Vietnam against aggression. The American government
attached a special statement clarifying its understanding that "aggression" was to
apply "only to Communist aggression." See Background Information Relating
to Southeast Asia and Vietnam (Report of the U.S. Senate Committee on
Foreign Relations, 89th Congress, 1st Session, Revised, June 16, 1965).
Nicholas Katzenbach, Senate Congressional Record, September 11, 1967,
S12758.

Quoted in New York Times, August 6, 1964, p. 8.

Senator Gaylord Nelson, Congressional Record, September 18, 1967, S25834-35.
Washington Post, February 25, 1968, p. 1.

See, for example, I. F. Stone's Weekly, December 5, 1966; I. F. Stone in New York
Review of Books, March 28, 1968; and the lead item and editorial in the Washing-
ton Post, February 15, 1968.

See New York Times, June 3, 1964, pp. 1 and 3; November 2, 1967; and the
editorial of May 20, 1966, p. 46. See also Charles Roberts, LBJ's Inner Circle
(New York: De La Conte, 1965), pp. 20-22.

Two sets of government figures for 1962, for example, convey the impression
that 15,000 enemy guerrillas sustained 30,000 casualties. See Arthur M.
Schlesinger, Jr., A Thousand Days: John F. Kennedy in the White House (New
York: Houghton Mifflin, 1965), p. 982.

James Reston, "Washington: Ships Passing in the Night," New York Times,
February 9, 1966, p. 38.

President Johnson first attacked "nervous nellies" in his speech of May 17, 1966
(New York Times, May 18, 1966, p. 8).

Robert S. Elegant, "New War Policy-Truth," San Francisco Chronicle, February
14, 1969, p. 15.

New York Times, April 2, 1968, p. 1. The stock market resurgence of April 1,
1968 involved sales of 17.7 million shares, surpassing the former volume record
of 16.4 million shares which had been set on "Black Tuesday," October 26, 1929.
New York Times, April 2, 1968, p. 63.

351-320 - 696

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

New York Times, February 9, 1968, p. 12.

The revised estimate of ARVN desertions in 1965 was, according to official ARVN figures, 113,000. For the first six months of 1966 it was 67,000. Viet Cong defections were put at 11,000 in 1965, 20,242 in 1966 (New York Times, February 24, 1966, p. 1; January 4, 1967, p. 3).

New York Times, February 9, 1968, p. 12.

50 U.S.C. App. S. 456(j). The concept "Supreme Being" has been broadly in-
terpreted by the Supreme Court, thus liberalizing the restrictions on "religious
training and belief." See U.S. v. Seeger, 380 U.S. 163.

The implementation of this recommendation was struck down by the U.S. Court
of Appeals, Second Circuit, in Wolff v. Selective Service System Local Board No.
16, 372 F. 2d 817, wherein it was decided that the local boards exceeded their
jurisdiction in so complying: "no regulation authorizes a draft board to declare
a registrant delinquent or to reclassify him for such action," 372 F. 2d at 821.
In Oestereich v. Selective Service System Local Board No. 11, the Supreme
Court held that the Selective Service System uses regulations governing delin-
quency, "to deprive registrants of their statutory exemption, because of various
activities and conduct and without any regard to the exemptions provided by
law," and described the board's activity as "basically lawless," 37 Law Week
4054.

New York Times, January 15, 1968, p. 5.

Martha Gellhorn, "Suffer the Little Children . . . "in Ladies Home Journal,
January, 1967, p. 108.

Richard E. Perry, "Where the Innocent Die," in Redbook, CXXVIII, No. 3,
January, 1967, p. 103.

Quotations from Allied Control Law No. 10, promulgated in 1945 for the trial
of war criminals.

International Military Tribunal, Charter, Art. VIII; in Trial of the Major War
Criminals (Nuremburg, 1947), I, 12; quoted also in Whiteman, Digest of Inter-
national Law, XI, 883. For discussions of the legal validity of this principle, see
Y. Dinstein, The Defense of Obedience to Superior Orders in International Law
(Leyden, 1965); I. Brownlie, International Law and the Use of Force by States
(Oxford, 1963), p. 192; A von Knieriem, The Nuremberg Trials (1959), pp.
247 ff. The bearing of the Nuremberg principle on the court-martial of Captain
Howard Levy is discussed in a note by Martin Redish, Harvard International Law
Journal, IX (1968), pp. 169-81.

New York Times, September 5, 1965, p. 4E.

New York Times, August 15, 1965, p. 3.

A. P. Report, January 15, 1967.

A. P. Report cited by Noam Chomsky, Ramparts, September, 1967, p. 18.
Air War-Vietnam (New York: Bantam Books, 1967). Mr. Harvey, an aviation
correspondent, visited Vietnam for fifty-five days while compiling an article for the
magazine Flying. "Because of his credentials, he was allowed and encouraged to
fly every kind of mission being flown . . . . At the outset Harvey intended to do
no more record, as clearly as possible, every aspect of the air war . . . . He de-
cidedly was not looking for damaging material, but . . . he found it" (Robert
Crichton, New York Review of Books, January 4, 1968, p. 3).

Air War-Vietnam.

David Perlman, "U.S. Starving Wrong People in Vietnam," in San Francisco
Chronicle, January 23, 1967, p. 8.

Science, February 9, 1968, p. 613.
Science, May 10, 1968, p. 600.

Editorial in New York Times, March 24, 1965, p. 42.

The United States is a party to the Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277; Treaty Series 539, and the Annex thereto, embodying the Regulations Respecting the Laws and Customs of War on Land (36 Stat. 2295; Treaty Series 539). According to Article 23, par. (a) of the Annex, "It is especially forbidden... to employ poison or poisoned weapons." However, as the old War Department Basic Field Manual (FM 27-10, 1940, Sect. 8) noted succinctly (while prohibiting "the wanton destruction of a district"): "The practice of recent years has been to re

54.

55.

56.

57.

58.

59.

60.

61.

62. 63.

64.

65.

66.

gard the prohibition against the use of poison as not applicable to the use of
toxic gases."

The variance between international agreements and United States practice with respect to poisons and toxic gases is conveniently summarized by the U.S. Dept. of the Army Field Manual FM 27-10, The Law of Land Warfare, 1956, Sects. 37-38, pp. 18-19:

...

It is especially forbidden... to employ poison or poisoned weapons. [Hague Convention No. IV, Annex, Par. 23(a)]

b. Discussion of Rule. The foregoing rule does not prohibit measures being taken to dry up springs, to divert rivers and aqueducts from their courses, or to destroy, through chemical or bacterial agents harmless to man, crops intended solely for consumption by the armed forces (if that fact can be determined).

38.

Gases, Chemicals, and Bacteriological Warfare

The United States is not a party to any treaty, now in force, that prohibits or restricts the use in warfare of toxic or nontoxic gases, of smoke or incendiary materials, or of bacteriological warfare. A treaty signed at Washington, 6 February 1922, on behalf of the United States, the British Empire, France, Italy, and Japan (3 Malloy,, Treaties 3116) contains a provision (art. V) prohibiting ‘The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials, or devices,' but that treaty was expressly conditioned to become effective only upon ratification by all of the signatory powers, and, not having been ratified by all of the signatories, has never become effective. The Geneva Protocol 'for the prohibition of the use in war of asphyxiating, poisonous, or other gases, and of bacteriological methods of warfare,' signed on 17 June 1925, on behalf of the United States and many other powers (94 League of Nations Treaty Series 65), has been ratified or adhered to by and is now effective between a considerable number of States. However, the United States Senate has refrained from giving its advice and consent to the ratification of the Protocol by the United States, and it is accordingly not binding on this country."

For a fuller discussion of the various international agreements with respect to asphyxiating gases, see G. H. Hackworth, Digest of International Law (Washington, 1943), VI, 269-71.

Editorial, New York Times, October 11, 1966, p. 46.

George McT. Kahin, "The NLF Terms for Peace," in New Republic, October 14, 1967, p. 13.

Fred Emery, "Vietnam's Other War Moves Slowly," London Times, March 10, 1967, p. 13.

San Francisco Chronicle, October 9, 1967, p. 12. Representative Ford was attacking the Americanization of the South Vietnamese economy: "This is just the opposite of our declared purpose. This trend should be immediately reversed."

New York Times, September 1, 1965, p. 36.

Speech of April 28, 1966, cited in New York Times, April 29, 1966, p. 32.
"Beyond Vietnam," speech of April 4, 1967. Reprinted in J. Grant, ed.,
Black Protest (Greenwich, Conn.: Fawcett Premier Books, 1968), p. 419.
Secretary Rusk, Congressional Record, August 25, 1966, U.S. Congress Senate
Committee of Armed Services, p. 9.

San Francisco Chronicle, August 9, 1967, p. 1

Gerald Moore, speaking of Gary, Indiana, reported that “Surprisingly many
[Wallace supporters] say they would have voted for Robert Kennedy (and did
in the May primary)” (“Microcosm of the Politics of Fear," Life, September
20, 1968, p. 40).

New York Review of Books, February 23, 1967, p. 16.

See Chapter III of this report.

William Sloane Coffin, Yale University Chaplain, was indicted along with Dr. Benjamin Spock for abetting draft resisters. Dr. Robert McAfee Brown, Professor of Religion at Stanford University, participated in a ceremonial mailing