The refugees were unanimous in describing the destruction of every single home in each of the seven villages where they had lived. They described both T-28 and jet aircraft, as well as the use of CBU cluster bombs and white phosphorus ; in all but one of the villages, the refugees had seen people killed by the airstrikes, the most numerous being the village of Ba Phone Savanh, a village of 35 homes where nine were killed and 14 wounded.

We personally observed and talked with a number of people bearing scars from CBU pellets of white phosphorous. In talking to the refugees, Congressman Waldie initially used Father Menger as an interpreter for the first five individ uals interviewed. I used Rev. Roffe and a Chinese interpreter named Wong. After several hours, we compared notes and found that we were receiving identical information from the refugees, save in one respect. The refugees interviewed by Congressman Waldie said, as interpreted by Father Menger, that Pathet-Lao soldiers were living in the villages at the time of the air strikes. The refugees with whom I talked, interpreted by Rev. Roffe and Mr. Wong, stated that the Pathet-Lao were situated some distance away from the village, with the closest soldiers being at least 500 meters away and generally as far as two or three kilometers away.

We decided to exchange interpreters, although I retained Mr. Wong to monitor Father Menger's interpretations as we were advised by several local people accompanying us that Father Menger had a reputation for inaccuracy.

Thereafter, all persons interviewed agreed that Pathet-Lao soldiers had not been living in their villages. Most important, Congressman Waldie re-interviewed one of the men who had first stated, according to Father Menger, that the Pathet-Lao lived in his village. This time the refugee was unequivocal in stating that no Pathet-Lao lived in his village and that his earlier comments had been misinterpreted.

The refugees commonly described the killing of their water buffalo, and the fact that they had to live in holes or caves, farming only at night when the bombing became so intensive in 1969. In only one of the seven villages had a refugee seen any visiting Pathet-Lao soldiers killed by the bombing of his village; the soldiers were described as visiting the villages only occasionally or as passing through on the road.

At one interview, the Chief of Tasseng Kat, the administrative area where these villages had been located, volunteered the information that his Tasseng had been evacuated from the Plain of Jars in early 1970 because they were ordered to leave by the Province Governor. U.S. planes provided the airlift capability.

The Air Force briefings from General Evans and his staff conclusively demonstrated both the immense accuracy of targeting and bombing, and also the voluminous and comprehensive aerial reconnaissance photography which precedes and follows bombing strikes. It is clear that the Air Force is only following orders, and that all targets are cleared and approved by the State Department. With reference to the foregoing facts, it is clear that the Embassy officials. on the night of April 13 deliberately misled Congressman Waldie and myself in four particulars:

1. Although they denied it, non-accidental bombing had taken place in Northern Laos during 1969.

2. At least 76% of 96 small villages had been hit by such bombing.

3. Reports had been made and were in the possession of the Embassy, showing that bombing was clearly the most compelling reason for the refugees leaving their homes.

4. Some of the refugees had moved because of the direct orders of the Royal Laotian government, not voluntarily; transportation was furnished by U.S. aircraft.

It is clear that cluster bombs and white phosphorous were used against the civilian population of the country with whom the United States has not declared war. The bombing was done under the direction and control of the State Department, not the United States Air Force. Both the extent of the bombing and its impact on the civilian population of Laos was deliberately concealed by the State Department between the period July 10, 1970 when the refugee report was completed, and April 13, 1971, when the report was reluctantly handed to me by the Deputy Chief of Mission Stearnes in Vientiane.

65-972-71- -12

III. THE DEFENSE DEPARTMENT'S

REFUSAL ΤΟ RELEASE PHOTOGRAPHS OB

FURNISH LISTS OF LAOTIAN VILLAGES BOMBED

On April 13 and 15, I was privileged to meet with Major General Evans, Commander 13th Air Force, and on April 16 with Major General Hardin, Vice Commander, 7th Air Force, General Evans confirmed to me that the rules of engagement in Laos required that no bombing take place within 500 meters of an "active village," an active village being defined as one hut.

At the April 13 meeting, I circled eight villages in Northern Laos at random and asked for aerial photographs of such villages. General Evans said he would be glad to have such photographs located and enlarged. On April 15, General Evans advised me that his staff had located only two of the villages in question, and showed me two photographs blown up to approximately 24" square. It was clear from the photographs, and General Evans confirmed, that these two vil lages were no longer in existence in the circled areas indicated.

I asked General Evans for the photographs and he relied that he would first like to get permission for their release from his superior, General Clay, Commander 7th Air Force, in Saigon. He stated he was going to Saigon the following morning and request permission from General Clay for their release to me prior to my scheduled departure from Saigon at 1700 the following day, April 16.

In the early afternoon of April 16, I called at 7th Air Force Headquarters at Saigon and was referred to Major General Hardin, who advised me that General Clay had decided to refuse release of the pictures to me, and that I should request the pictures and any other Air Force data and information from the Air Force Liason office in Washington.

I did this by letter to Major General John C. Giraudo, Office of Legislative Liaison at the Pentagon on April 19, 1971. On April 20, I submitted a list of 196 villages in Northern Laos which had been hit by U.S. bombs since such bombing commenced.

I received no responsive reply to these requests, save for the delivery of 12 photographs of Laotian villages which were not included in the list of villages for which photographs were requested.

How many of the 3,500 villages behind Pathet Lao lines have been destroyed by American bombing is a matter which is still open to question. This question can be determined quite easily however, if the Defense Department will produce current photographs of these areas from its comprehensive files. The failure to produce these photographs, under ordinary rules of evidentiary law, can only be deemed to properly raise the inference that the villages have indeed been destroyed, contrary to the statements we received from State Department officials. Nevertheless, a few days ago, I received from the Department of Defense the following letter:

Hon. PAUL N. MCCLOSKEY, Jr.,
House of Representatives,
Washington, D.C.

JUNE 11, 1971.

DEAR MR. MCCLOSKEY: Mr. Johnson has asked me to reply to your letter of 19 May 1971.

I have reflected on your various requests for photographs of villages in Laos. Your understandably humane interest in the effect of the war on the civilian population in Laos is shared by the many in the Defense Department who over the years have wrestled with this problem. I hope our basic agreement on motives is not obscured by the differences we may have over issues of management.

With regard to management, we have explained repeatedly that we have established restrictions up to the limits of the safety of our pilots in order to minimize the effects of the war on civilian populations. Ambassador Sullivan, along with knowledgeable and competent witnesses from State, AID. and Defense, has discussed the refugee situation thoroughly with cognizant bodies in the Con gress. As you know, we are convinced that the overwhelming cause of refugees in Laos is the offensive military activity of the North Vietnamese Army. Finally, when civilians have been caught up unavoidably in the web of warfare, we have given strong support through AID to ameliorative programs.

It is neither feasible nor useful to go beyond these steps to furnish extended photography of Laos. Much of Laos is inhabited by itinerant groups who establish their villages temporarily and then move on. The abandoned villages, in various stages of decrepitude, dot the countryside. Those which have suffered military damage may be indistinguishable from those ravaged by the weather;

those which have suffered identifiable military damage may have been struck by the enemy rather than by U.S. bombs; finally, even if it appears from current photography that U.S. bombs might have damaged a village, we come back to our assertion that only valid military targets come under attack as an unavoidable consequence of enemy activity, an assertion which you implicitly are challenging.

In sum, I cannot see that the cause of the civilians in Laos will be advanced by our further exchange of photographs. The public record is as complete regarding our efforts to minimize the effect of the war on Laotian civilians as we can make it without disclosing information which the enemy would certainly use further to endanger the lives of our pilots. Let me assure you that we are resisting a ruthless and aggressive enemy as humanely as the circumstances permit.

Sincerely,

DENNIS J. DOOLIN, Deputy Assistant Secretary.

To me this letter represents almost a classic example of executive branch attitude toward the Congress. In the Deputy Assistant Secretary's opinion, it is not "useful" to furnish photographs to an inquiring Congress.

Yet as early as 1964, the importance of photography of Laos was deemed of paramount importance to the Defense Department. The Joint Chiefs of Staff memo to Secretary McNamara of January 22, 1964, discussing "bolder actions" in Southeast Asia (Cong. Record of June 14, 1971, Page H 5100) mentions the need to:

"d. Overfly Laos and Cambodia to whatever extent is necessary for acquisition of operational intelligence."

A cablegram from Admiral Sharp to the JCS on August 17, 1964, (Cong. Record, June 14, 1971, page 5106) said:

"Continuous and effective pressure should be applied to the Communists in both the PDJ (Plain of Jars) and panhandle. Consequently concur in continued RECCE of DRV, panhandle and PDJ.”

On November 7, 1964, a State Department Memo, apparently from Deputy Assistant Secretary Marshall Green to Assistant Secretary Bundy included the comment:

"We have also recently told MACV that we have a high priority requirement for night photo recce of key motorable routes in Laos. At present about 2 nights recce flights are flown along Route 7 areas within a two-week span." If photographs are so useful to the conduct of a war under the control and direction of the U.S. Ambassador in Laos, surely they might be useful to the Congress which determines whether or not to authorize and fund that war.

IV. THE PHOENIX PROGRAM

In our visit to Viet Nam in April, Congressman Waldie and I learned that the "Phoenix" or "Phung Hoang" program is the first priority effort in the 1971 pacification plan.

We were told that the Phoenix program is an American constructed concept for the neutralizing of Viet Cong infrastructure (VCI), the shadow Viet Cong government of mayors, police chiefs, tax collectors and rice gatherers. "Neutralizing" occurs through killing, capturing, rallying, sentencing by military courts or sentencing by Province Security Councils to the so-called "An-Tri" administrative detention.

The program was apparently commenced in 1967 with the specific purpose of eliminating the V.C.I. through assassination, ambush, and capture. The P.R.U. teams (Province Reconnaissance Units), Navy SEAL teams and C.I.A. personnel and employees were apparently the original means of eliminating suspected V.C.I., but more recently the major effort has shifted to the Vietnamese police and armed forces, assisted by C.I.A. and CORDS advisors.

This year, 1971, the Phoenix program has been made the priority program of pacification, and we are in the process of financing a 50% increase in the Vietnamese National Police, partly in order to expedite this program.

Neutralization goals for 1971 were said to be 1200 per month, or 14,400 during the year, of whom at least 2 were to be sentenced to confinement of at least

one year.

American personnel advise the Phoenix program at every stage-identification and opening of dossiers on V.C.I. suspects, gathering of intelligence from military

operations, informers and police investigation, arrest and detention of suspects. including through U.S. military operations, interrogation of suspects, and finally, the sentencing of suspects by Province Security Committees.

In the first two months of 1971, we were advised by U.S. briefing officers in Saigon that the program is proceeding very successfully; 4502 VCI had been neutralized, nearly twice the assigned quota. Of these, 1629 had been killed, 1527 rallied, and 1346 sentenced. With an estimated 60,000 VCI in existence at the beginning of the year, this rate of neutralization, if continued, would wipe out nearly half the remaining VCI by the end of the year. Equally important, the war of terror was clearly being won by the government, since the VC, in the same two months had been able to neutralize only 2749 South Vietnamese through killing, abduction or wounding.

The comparative figures for January and February, 1971, which were given to us were as follows:

Thus, we were winning the terror-counter-terror battle by almost 2 to 1. We were pleased to learn also that Americans are not authorized to participate in assassinations, and that Americans who found the police-type activities of the program personally repugnant could apply for reassignment without prejudice. These provisions are found in Directive Number 525–36 from MACV headquarters, dated 18 May, 1970, a copy of which is appended to this statement as Exhibit 1.

We were likewise pleased to find that the U.S. Government recognizd a legal obligation under the 1949 Geneva Convention to extend protection to the Vietnamese civilians apprehended under the Phoenix program, and a further responsibility to work with the government of South Viet Nam to see that all such civilians were treated in accordance with that convention.

A copy of the letter of our Ambassador of the U.S. Mission to International Organizations, Mr. Idar Rimestad, dated December 7, 1970, containing the assurance that we and the South Vietnamese are working together to ensure fulfillment of their responsibilities (under Article 3 of the 1949 Geneva Convention) is appended as Exhibit 2 hereto.

We were not so pleased, however to learn that the United States is not working together with the Vietnamese to provide reasonable protections to persons accused of being VCI.

Specifically, Article 3 of the 1949 Geneva Conventions, prohibits "the 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." (Emphasis added.) A copy of Article 3 is appended as Exhibit 3 to this statement.

Under the Phoenix program, the "regularly constituted court" is the Province Security Council, usually made up of 7 individuals, 6 of whom represent either the military or the Police, and who can convict:

"Where evidence for trial is lacking but it is apparent that the suspect is a threat to the national security."

Confinement by such sentence is limited to two years, but can be extended at the sole discretion of the province chief, usually a Lieutenant Colonel in the South Vietnamese army.

The rules of evidence and description of the program are set forth in excerpts from one U.S. pamphlet on Phoenix which are appended as Exhibit 4 to this statement.

It might be well questioned whether the Phoenix program affords all the judicial guarantees which are recognized as indispensable by civilized people. Certainly we do not afford the VCI suspects the guarantees of our own system. A suspect has no right to counsel, to confront and examine his accusers, to see

the evidence against him, or even to appear or testify on his own behalf. He can effectively be sentenced to life imprisonment on hearsay evidence given by secret informers under a test of proof which expressly concedes it would be insufficient to convict upon trial.

This is an almost incredible perversion of American concepts and traditions of justice, but the worst aspect of all is the interrogation process.

Upon apprehension of a suspect, upon information deemed too flimsy to even meet the "apparent threat to the national security" test, the suspect can be turned over to the tender mercies of the South Vietnamese interrogators at the Province Interrogation Centor (PIC). The interrogators have until 46 days from his arrest to obtain a confession or other evidence sufficient to establish the "apparent threat" rule. No Americans sit in on these interrogations, which are conducted in isolation cells with the prisoner blindfolded and a single Vietnamese interrogator present.

It is apparently common knowledge in Viet Nam that torture and brutality are commonplace in Vietnamese interrogations. Two American officers told us that they had seen rubber hoses in the possession of Vietnamese interrogators.

When I asked one American pacification officer if the 46 day period of interrogation was not unreasonable, he replied "we've never had to interrogate anyone for 46 days-they're all broken and confessed in 30 days.

After visiting the P.I.C. in Binh Dinh province, I could better understand why. It was constructed inside an abandoned school. False walls had been constructed so as to leave the observer with the impression that the school building was empty and abandoned. Along a central corridor were 24 5' x 7' cells on one side. with only a small 12'' slit at the top to admit air. On the other side of the corridor were slightly larger interrogation cells. A 10' wall surrounded the building, with a steel gate that hid the view from outside except when it was briefly opened to admit our automobile, and then immediately closed.

Americans generally followed a hands-off policy towards these PIC's-in several provinces we were told that Americans never went near them. One officer told us he thought the C.I.A. ran the local PIC, and on inquiry we learned that the PIC's were not in the CORDS chain-of-command at all, but were advised solely by the C.I.A. With PIC's in 44 provinces, and less than 25 C.I.A. advisors in the program, it is fairly clear that the interrogations are conducted with little U.S. supervision that might "ensure fulfillment" of our responsibilities under the Geneva Conventions.

Congressman Waldie was shown a Phoenix document called SOP-3 which was then taken back by the briefing officer involved.

SOP-3 contained the following comments:

(Intelligence about fellow citizens) is not only of immediate value, but also will be needed in the future in any postwar political struggle with the Viet Cong. (Emphasis added.)

(In describing whether a man should report his neighbor) Those who act suspiciously: (a) the hesitation or fearful attitude of a dishonest person; (b) contact with those whom we suspect; (c) regular secret colloquies of a certain group of people in the area.

The possibilities of this type of program for the repression of political opposition and dissent are obvious. Fear of such repression was expressed to us by several Vietnamese, and the whole record of repression, torture, corruption, seizure of newspapers and arrest of political opponents under the present Saigon regime is very disquieting.

At the very least, I think Congress should insist of full disclosure by the Administration of the English and Vietnamese documents which describe and concern this first-priority pacification program of 1971.

Thank you for the opportunity to testify today.

Directive Number 525-36.

EXHIBIT I

U. S. MILITARY ASSISTANCE COMMAND, VIETNAM,
APO San Francisco, Calif., May 18, 1970.

MILITARY OPERATIONS-PHOENIX (PHUNG HOANG) OPERATIONS

Purpose: This directive establishes policy and responsibilities for all US personnel participating in, or supporting in any way, PHOENIX (PHUNG HOANG) operations.