Mass Murder as Political Marketing by Dr. TP Wilkinson

Mass Murder as Political Marketing

Tue, 08/12/2014 - 11:44 — Dr. T P Wilkinson

• VIetnam War | 
• U.S. Manifest Destiny | 
• Phoenix Program

by Dr. TP Wilkinson

The CIA’s infamous program to crush the resistance to U.S. occupation of South Vietnam is largely remembered as a gigantic campaign of assassination that claimed tens of thousands of lives. However, the Phoenix Program is best understood as an extension of U.S. propaganda.

Mass Murder as Political Marketing

The Phoenix Program: America’s Use of Terror in Vietnam

Douglas Valentine

1990

Reissued by Open Roads as e-book in the new series “Forbidden Bookshelf” curated by Mark Crispin Miler, 2014

by Dr. TP Wilkinson

“The CIA and other covert action agencies (over which the CIA has ultimate control) were founded to protect Business.”

Douglas Valentine explained the purpose or at least the subject of his study of the Vietnam Phoenix Program as “terror and its role in political warfare”. He is generous, like most Americans—even critical ones—when he writes “It will show how, as successive American governments sink deeper and deeper into the vortex of covert operations—ostensibly to combat terrorism and Communist insurgencies—the American people gradually lose touch with the democratic ideals that once defined their national self-concept. This book asks what happens when Phoenix comes home to roost?”¹ Valentine is generous to his readers since he ascribes to them ideals which while attributed to the US regime and naively held by many, in fact bear little resemblance to the political reality in the USA. Valentine is not ironic. His book is written with sincerity to readers in a frustrating appeal to transcend their sentimental illusions and look honestly at the real political praxis of their country in a war it just happened to lose. In this sense it is also a polemic—although no way polemical in style—to learn the right lessons from the US invasion, occupation and genocidal war against the people of Vietnam.

The Phoenix Program was first published 24 years ago, fourteen years after the Congressional investigations that exposed and swiftly washed it from public memory. After successful attempts to bury this book, e.g. Morley Safer’s attack in the New York Times, this essential study of US political warfare has been reissued as an e-book.² One can only hope that the reign of terror in and by the US that expanded vastly with the election of Margaret Thatcher in the UK and Ronald Reagan will finally reach the consciousness of the white “Left” and those whose sentimental attachment to the American creation myth is sincere enough to rebel against the two-plus centuries of imperial hypocrisy which engendered this bureaucratic terror system under the Stars and Stripes.

To place the Phoenix Program in its proper historical perspective however it is necessary to grasp the genealogy of the regime responsible for its inception. This regime predates Vietnam. This author has reiterated elsewhere that it is scarcely possible to understand the role of political warfare in the US without returning to 1776, to the moral turpitude of the Founding Fathers.³ These leading lights of the nascent American empire began their journey to Vietnam when they declared independence from the British Empire in order to preserve that peculiar institution known as chattel slavery that the mother country was being forced to abolish in the rest of its colonies.

“The fundamental structures created by the Constitution were in fact designed to prevent majority rule and protect the political terror apparatus maintained by the elite for that purpose.”

Although the official history claims that this separation was intended to secure liberty in the face of British tyranny, the fact was that the liberty to be secured was deliberately withheld from the majority of the country’s inhabitants, Native Americans, African slaves, and European indentured servants (white slaves). The liberties enumerated in the unilateral declaration of independence and later in the Constitution were—and generally recognised as such at the time—those deemed consonant with free trade for the Anglo-American settler elite, both merchants in the North and latifundista in the South.

The fundamental structures created by the Constitution were in fact designed to prevent majority rule and protect the political terror apparatus maintained by the elite for that purpose. For example, the system of indirect election, the gerrymandering of electoral districts to favour slaveholders and the maintenance of the infamous slave patrols.⁴ Under the banner of “Indian Removal”—an early form of what would later be called “pacification”—the Anglo-American settler elite proceeded to seize the entire North American continent. This later became known inter alia as the Monroe Doctrine and Manifest Destiny. In fact this was nothing less than the annihilation and/ or enslavement of non-whites from sea to shining sea. Largely oblivious to this constant commercial adventure, wave after wave of European immigrants were deliberately co-opted while serving as arrow or cannon fodder until with the annexation of California only British Canada and Mexico south of the Rio Bravo had not been conquered. The wide Pacific was opened to further invasion and exploitation.

However it was not until the war against Spain garnished Cuba, the Philippines and sundry islands in the Caribbean and Pacific basins that official American discourse began to admit imperial designs. Apparently this admission was only deemed necessary once the US began to seize territory from other European powers.

One of the consequences of this century of North American conquest was the physical and ideological isolation of the emergent “white” settler majority paired with the extermination of the indigenous and chronic incarceration of the terrorised ex-slave African-Americans. In the prelude to the next campaign of Anglo-American conquest, World War I, the still Southern-dominated regime in Washington, together with the merchant-industrial class in New York and Boston, launched what might be called the greatest international corporate advertising campaign since the hegemony of the medieval Roman Catholic Church—presaging today’s so-called “social media”: the Committee on Public Information aka the Creel Committee.

Although primarily instituted to propagate the US regime’s aims for entering the European Great War of 1914, the central message, both at home and abroad, was the fabrication of American history as the fulfilment of Enlightenment humanism. Applying the combined resources of the US industrial and banking cartels, every available mass medium was harnessed to create and disseminate stories about the virtues of the US and the “American way of life”—of course, without Native Americans, Blacks, Chinese or Mexicans and other non-whites. This enormously successful campaign not only persuaded ordinary Americans to work, fight and die for the speculative advantage of the US war machine. It also succeeded in creating the myths which have deceived the peoples of European colonial empires into believing that the US was indeed exceptional, a potential ally in the fight for freedom and dignity being waged from Ireland to India.

Without acknowledgement of this campaign and its combination of propaganda and terror (the “five minute men”, “the war to make the world safe for democracy”, the Palmer raids, and the Klan), no one can begin to comprehend how something like Phoenix could arise.⁵ Nor is it possible to grasp how, despite revelations in the Church and Pike committees of the 1970s,⁶ this vicious system not only remained in tact but has been growing exponentially, largely unknown and unchecked to this day.

Propaganda and terror: the business of America is business⁷

The greatest mystery—or better said, mystification—to be overcome is the apparent contradiction between America’s proclaimed principles and the intensity of its covert operations practices. Philip Agee once called the CIA, “capitalism’s invisible army.” He recalled that one of his first tasks as a junior CIA officer had been to conduct background checks on Venezuelan applicants for jobs at the local subsidiary of a major US oil company.⁸ In fact, his conclusion after quitting the “Company” was that capitalism could never be maintained without an extensive military and secret police force to suppress opposition to it.

Officially, US national security means the protection of its territory, fundamental “freedoms” and the interests of the US abroad, including certain allies who are deemed necessary for the aforementioned protection. In practice US national security means guaranteeing the conditions suitable for what US President Calvin Coolidge defined as “America’s business.” Smedley Butler put it more bluntly when describing his career as a member of the US Marine Corps.⁹ The CIA and other covert action agencies (over which the CIA has ultimate control) were founded to protect Business. In the US the collective term for opposition to US Business was “communism”.¹⁰ However this translation of the “Cold War” slogans does not suffice to explain what the US, in particular the CIA, was doing in Vietnam.

The answer has to be sought in the Korean War—one of the best-concealed periods of US history.¹¹When the US conquered Japan in 1945, the military government under General Douglas MacArthur set about rebuilding Japan as an industrial bridgehead by which the US could pursue its domination of the Asia-Pacific basin, including China. When China was “lost” to the People’s Liberation Army under Mao Tse Tung in 1949, the US lost its business bases on the mainland, concentrated in Shanghai. Their fascist ally Chiang Kai-shek was forced to retreat to Formosa. At the same time Korea, which had become a Japanese colony, with US blessing at the beginning of the 20^th century, was dominated in the South by US Forces (USMGK)¹². The US regime had invaded in 1945 in order to preserve it as a strategic resource for the reconstruction of Japan under its suzerainty.

Korea and Vietnam were considered strategic—for Business—because they could both deliver the cheap food (rice) and mineral resources needed to feed Japan’s workers and factories. The defeat of Japan only meant that the US assumed the burden of sustaining the Japanese industrial economy. It immediately aligned itself with the feudal landlord class of both countries as a means of continuing the flow of resources to Japan. In Korea, this provoked massive peasant uprisings, which the USMGK helped to subdue together with fascist gangs under the tutelage of American mission-educated Syngman Rhee.

“The Vietnamese had a strong and heavily armed resistance with mass support, successful in battle against the Japanese and the French.”

However, both Korea and Vietnam had developed strong independence movements, aimed at ending colonialism and battle-hardened in their resistance to the Japanese. These independence movements were committed to land reform for the masses of peasantry, concentrated in the southern parts of each country. Both the Korean and Vietnamese independence movements enjoyed mass support, for economic as well as nationalist motives. Essentially the Korean War was fought by the US to retain the status quo ante while the armies under Kim Il-Sung fought to reunite an independent Korea.¹³

Unlike in Korea however—where war scuttled diplomatic agreement to unite Korea under one national government—the Vietnamese under Hồ Chí Minh had succeeded in forcing France to withdraw and agree to formal reunification processes in Geneva. The US had forced the French government to negotiate by ending its support for the colonial regime. Hence it was diplomatically obliged to proceed with the plans for elections agreed in the Geneva Accords. Nonetheless Vietnam had been an important food supplier to Japan that the US needed to control along with Korea. To maintain this flow of cheap resources from Indochina, it was necessary—as in Korea—to protect the post-colonial elite in Saigon and enforce the land and tax system upon which the hyper-exploitation was based. In that sense Vietnam was no different in the eyes of the US regime than any of its Latin American banana republics.

Unlike Latin America, however, the Vietnamese had a strong and heavily armed resistance with mass support, successful in battle against the Japanese and the French. The challenge of US policy was to suppress the resistance in the South and establish a client regime capable of policing the extractive structures installed by the French and Japanese.

The Geneva Accords constituted a major obstacle since, unlike Korea, where the US was able to prevent international agreement on reunification; the US was legally compelled to permit Vietnamese independence. Hence the necessity for covert operations—enter the CIA. In order to create, stabilise and defend a permanent partition of the country, it was necessary to establish a regime in the South that would be permanently recognised as a separate country. As in Korea the US was faced with an elite compromised by its collaboration with the French and Japanese. Covert action, the deployment of “advisors”, was intended to select and have elected people who would enjoy some credibility as nationalists while complying with the needs of US Asia-Pacific corporate strategy. It is necessary here to recall that the American public was told that South Vietnam was a democracy threatened by “communism” because this is the general term used in the West to define any and all opposition to Western capital. It was impossible to tell the American public that the US was defending the “American Way of Life” in Southeast Asia: a) because endemic US racism did not admit Asians to be entitled to the same life as “white” Americans¹⁴ and b) unlike Europe and Latin America, there were no widely held assumptions justifying US control over Asian territory.¹⁵ In fact until the faked Tonkin Gulf incident, Vietnam remained largely invisible within the United States.

As resistance to the perpetuation of the neo-colonial regime in Saigon increased, along with diplomatic demands from Hanoi for compliance with the Geneva Accords, “advisory” activity was intensified. Meanwhile it had become clear that were elections to be held the government in Hanoi would win and the Saigon regime would collapse. Despite this certainty and the intelligence showing that there was absolutely no popular support for the elite in Saigon, the decision was made to have Ngô Đình Diệm deposed in favour of a regime whose leader might be more marketable. The assassination of Diệm in 1963 only aggravated the crisis on the ground.¹⁶ The US President, Lyndon Johnson, ordered pacification of the peasantry to be intensified. That was and remains the CIA’s remit. However, it became clear that the CIA could not do the job alone. Any day the Hanoi government could decide to oppose Southern (US) procrastination and rightly claim that the Geneva Accords had been breached. In order to pre-empt Hanoi’s actions, Johnson used the Tonkin Gulf incident in August 1964 as a pretext to invade the South and bomb the North.

As Nelson Brickham, the architect of the Phoenix Program, explained in an interview with Valentine, the US military was brought in to “shield” the covert pacification campaign until a stable government could be established permanently with the capacity to rigorously police the peasantry. Brickham’s preferred instrument was the Special Branch of the National Police.¹⁷ The CIA had already been in Vietnam since 1954. But now time was of the essence.

From ashes to ashes

Valentine’s autopsy of the Vietnamese Phoenix Program starts by recognising that the CIA was (and is) central to US corporate policy. In Vietnam the Company developed ICEX aka Phoenix as an intensive corporate management and public relations campaign for what is called “nation-building”.¹⁸The overall aim of “nation-building” is to destroy the indigenous and nationalist infrastructure—what Americans would consider to be their state and local government together with all the social organisations and networks by which communities are organised and maintained—and replace it with one that operates on the same basis as US corporate infrastructure. In a sense the CIA was developing what would later be called—also euphemistically—private-public partnerships. The idea the US regime could install systems like the ones with which it had traditionally controlled local governments and economies in Latin America for the benefit of US corporations. ¹⁹ Like other CIA operations, there was to be a multi-faceted campaign to paint the Hanoi government as puppets of Russia or China, invent a regime in Saigon that would embody “real Vietnamese independence” and create the machinery by which that regime could preserve itself. At the same time this effort had to be sold both in the USA and abroad within the dominant post-war decolonisation discourse. Here the central elements were “revolution” and “development”. Part of the reason for this marketing strategy was a belief fostered in academia, esp. in area studies, that any post-war dispensation would have to take the steam out of revolutionary socialist/ nationalist movements by packaging modernisation as a revolutionary process. Initially the US could benefit from widely held beliefs about the creation of the US as a non-Marxist (pre-Marxist) revolutionary success story, complete with a healthy national spirit. On the other hand it was impossible to retain the rhetoric of the pre-war European colonial powers given the UN Charter and its promise of national self-determination. The US regime was also able to market itself as the ideal development agent. Unscathed by World War II, it had already devoted substantial efforts to “rebuild” Europe and supply food and other economic aid to countries left in distress after the war. US “free trade” policy was sufficiently ambiguous to be sold as a realistic alternative to the constraints imposed by Britain, France, the Netherlands and Belgium on their colonial possessions. In other words, capitalising on the hugely successful propaganda campaigns since 1914, the US was able to profit from good will abroad and naiveté at home to launch what would become Phoenix.

In fact, free trade meant that US corporations deliberately avoided the costs of governing economically profitable territories. Instead, what has been called “an archipelago of empire” was preferred.²⁰ This meant expanding the British principle of indirect rule by creating and supporting nominally independent regimes that bear all the social costs through extortionate taxation, while assuring that labour and natural resources are freely accessible to US corporations—in Vietnam’s case, particularly those operating in Japan.

“The US regime was also able to market itself as the ideal development agent.”

Unlike industrial economies, peasant economies, such as those prevailing in southern Korea and Vietnam, are still structured around land ownership and use. Industrialised populations such as those of Europe and the US already have structures easily manipulated by corporations: employment, housing, entertainment, and mass consumption. Conflicts are reduced largely to issues like wages and working hours, healthcare and pensions—essentially monetary problems. In rural economies conflicts focus on land ownership and access, availability of agricultural inputs, and the maintenance of family and village structures.

Thus the CIA was confronted with a peasantry for whom land reform and peaceful cultivation in villages within families were paramount. In Latin America, the US regime had inherited the colonial latifundia systems imposed by the Spanish centuries ago. Southeast Asia was completely different. Of course this did not prevent the CIA from taking action. Drawing on what they thought were the lessons of US counter-insurgency in the Philippines and Sir Robert Thompson’s model Malayan campaign, a variety of tools were developed on the assumption that there are in essence two Vietnams south of the DMZ.²¹ The task of the CIA was to disaggregate them. The term that emerged was “VCI” or Viet Cong Infrastructure (Vietnamese communist infrastructure). The “real” Vietnamese were to be corralled and branded while the “communists” were to be culled from the herd.

Since this distinction was an ideological fiction—albeit an indispensible one—two processes were needed: one which would create the real herd of South Vietnamese, identifiable at least by demonstrated loyalty or dependence on the Saigon regime; and one which would continuously cull the “enemy” from the herd. This loyal herd could be led to the elections that would validate the Republic of Vietnam (South). The rest could be “captured, turned, or killed”. This is essentially the way corporations create markets for superfluous products. There was no need for the Saigon government since most Vietnamese were justified in believing that when the French withdrew it was only a matter of time before the country would be unified under one government. However, to create a viable client regime the CIA had to create a market for it.

The term “infrastructure” denoted the fact that Vietnamese society, esp. in the rural areas where the Saigon regime was scarcely present, functioned without any need for the US clients. Although the term is also used as a euphemism for “cadre”, members of the Vietnamese Communist Party in the South, this limited use obscures the strategy underlying Phoenix and the US regime’s presence. In order to create the “Saigon product” so to speak, there had to be a need for it—namely an administrative apparatus reaching into the village level which could make demands on the population and at least nominally satisfy local wishes. It is fair to say that no one who had spent any time in the country believed that there was any demand for “Saigon product” among the peasantry. Hence the only way to create and stimulate that demand was to reach into the depths of rural life and do everything possible to destroy the indigenous structures, both economically and socially. Ideally this vacuum would be filled speedily by US-subsidised Saigon infrastructure. This was the underlying theory of the strategic hamlet program and all the USAID activities.²² Due to the fact that the Saigon regime was and remained unable and unwilling to provide the substitute infrastructure, the nation building (counter-insurgency) programs never acquired the varnish of acceptability that they enjoyed among the middle classes in the West.

“The Company drew on its vast repertoire of propaganda and terror methods, tried and tested throughout the world, and concentrated them in Southeast Asia.”

Of course this did not mean that the programs bundled under ICEX/ Phoenix were to be abandoned. Quite the contrary they were to be refined. Just like corporate marketing and design departments in seemingly innocuous sectors like automobile and electronics are dedicated to producing anything—if there is a promise of reportable profits or increased market share—the corporate propaganda and terror campaign introduced to Vietnam by the CIA became a self-perpetuating system. To meet the need to show that the herd and the culls were being managed effectively—profitably— measurement and reporting systems were borrowed from the leading edge of management and organisational theory. General William Westmoreland was discredited for “accounting fraud” while waging the military side of the campaign.²³ However such fraud was inherent in the overall strategy, both covert and overt. As there were not two Vietnams but only one, it was absurd to try to measure the numbers of the phantom herd, “real Vietnam minus VC”. The only thing that could be measured was the number of victims and no one had an interest in honest reporting there.

In order to invent South Vietnam, it was necessary to fabricate a South Vietnamese population, complete with features that ought to distinguish it from North Vietnam. The US attempt to do this in Korea had failed; leaving it with only one choice—permanent military occupation. The CIA, certainly guided by its numerous successes in Iran, Latin America, and Africa, undertook the ambitious task of manufacturing not only a client regime, but a whole country. The Company drew on its vast repertoire of propaganda and terror methods, tried and tested throughout the world, and concentrated them in Southeast Asia. When it found itself unable to work alone, it brought in massive military cover. It was hoped that MACV would prevent the NVA from attacking and ejecting the Saigon regime and at the same time prevent the “enemy” below the DMZ from deposing the US clients on their own or rendering the South ungovernable from Saigon.²⁴ Meanwhile Saigon’s incompetent, corrupt and generally useless police and civilian administration were to be indoctrinated and trained to maintain this invented herd of South Vietnamese, needed to maintain the fiction of a separate Vietnamese state—a state that was to continue the hyper-exploitation of the South within the overall US Asia-Pacific imperial archipelago.

Douglas Valentine shows in lucid detail how this campaign emerged, who was responsible—both for policy and operations—what actually was done and with what consequences. The Phoenix Program is not a theoretical work but it is more than a case study in the US propaganda-terror system. By carefully refraining from opinions about the actors or actions, he forces the reader to weigh the preponderance of evidence as to the nature of this purely CIA—and hence purely American form of political warfare. He also forces the critical reader to transcend revulsion and examine a complex bureaucratic system, created by the same people who create the management systems used to organise and discipline workers and consumers—short of killing them. The reader needs to pay careful attention to what seem to be technical details such as nomenclature or reporting structures. These details have survived in US political and economic warfare systems to this day. One could say that they were first systematically applied in Vietnam, only to be revised and tapered for future targets of the US regime. Not least the dramatis personae should be studied carefully. Phoenix, like any elite club, produced many alumni who have gone on to make and guide policy and wage political warfare against the targets of the US regime.²⁵ In Western mythology it is not the end of the phoenix that counts but its rebirth from the ashes.

Dr. T P Wilkinson writes, teaches History and English, directs theatre and coaches cricket in Heinrich Heine's birthplace, Düsseldorf. He is also the author of Church Clothes, Land, Mission and the End of Apartheid in South Africa (Maisonneuve Press, 2003). 

1 Valentine alludes here to Malcolm X’s notorious reaction to the assassination of John F. Kennedy. This is by no means hyperbole since meanwhile a wide range of historical literature asserts that Kennedy’s assassination was integrally related to the policies pursued by the US regime in Vietnam.

2 Morley Safer, “Body Count was their most important product”, New York Times, 21 October 1990. Morley Safer was probably one of the most well known TV correspondents in US homes during the war. It was not what he said about Valentine’s book that counted but the fact that this “face” of the Vietnam War said anything at all.

3 T. P. Wilkinson, inter alia “The Moral Equivalence of the Founding Fathers”, Review of Gerald Horne’s The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America, May 2014.

4 Much confusion and consternation arises as to why the Second Amendment to the US Constitutionproclaimed, “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” In fact, the amendment was justified by James Madison to prevent the federal government from passing laws to restrict the slave patrols raised by the governments of the Southern states to maintain slavery. See also Thom Hartmann, “The Second Amendment was ratified to preserve slavery”, Truth Out, 15 January 2013.

5 The „five minute men“ were propagandists trained by the Committee of Public Information to be able to render a seemingly spontaneous speech „within 5 minutes“ at any venue in order to agitate for US war aims. Woodrow Wilson pronounced that the US was entering WWI for this purpose. Wilson’s attorney general A. Mitchell Palmer led the sweeping police raids against political dissidents between 1919-1920. The Ku Klux Klan was re-founded in Georgia in 1915 and became a notorious paramilitary terror organisation directed mainly but not exclusively against African-Americans. With membership reaching to the highest realms of US government, it operated throughout the South and Midwest with impunity for most of the 20^th century. It was glorified in D.W. Griffith’s 1915 film, The Clansman. Although occasionally members have been charged and convicted of serious crimes, the organisation has never been outlawed.

6 Two special committees of the US Congress, named after their respective chairmen, Sen. Frank Church and Rep. Otis Pike. These select committees investigated the illegal activities of the CIA, FBI, and NSA between 1975 and 1976.

7 Calvin Coolidge, “After all, the chief business of the American people is business…” Reported in a speech to the American Society of Newspaper Editors, 25 January 1925.

8 Philip Agee, Inside the Company: CIA Diary, 1975, see also John Stockwell, In Search of Enemies, 1984.

9 Smedley Butler, War is a Racket, 1935.

10 On 11 September 1973 it was still communism but since 1989 and ultimately since 11 September 2001, the ultimate threat has been renamed “global terrorism”.

11 Prior to the Korean War (1950 - ), it was the OSS, with its strong links to the so-called “China Lobby”, that managed US covert action in Asia. For a detailed discussion of this major US war, to date only subject to a ceasefire from 1953, see Bruce Cumings, The Origins of the Korean War, Vol. 1 (1981), Vol. II (1992). For a summary of its relevance to US imperial history see T. P. Wilkinson, “Is a New Cold War Coming?”, Lobster, (Winter 2014).

12 USMGK = US Military Government in Korea, established ostensibly to disarm the Japanese forces, the military government became the backbone of the Rhee regime.

13 Food and natural resources, esp. Korea’s enormous tungsten reserves, were both deemed essential for US heavy industry, whether in Japan or at home.

14 Any doubt as to this can be removed by examining the history of US laws against Asians as well as the notorious mass internment of Japanese-American citizens from 1942 until 1946. This was not only a landmark for “white” abuse of Asians but, generated windfall profits for those who acquired the homes and property of the incarcerated.

15 The US had finally recognised Philippines independence in 1946 and made Hawai’i a state in 1959, ending formal colonial rule in the Pacific—for the most part.

16 Diệm was assassinated on 2 November 1963. John F. Kennedy was assassinated on 22 November 1963, leaving Lyndon Johnson with the consequences.

17 Special Branch is the name given to the political police/ intelligence branch of the regular (usually) civilian force in Britain, the Empire and Commonwealth countries. First organised as the Special Irish Branch of the Metropolitan Police in 1883, this form became the model for British secret police units throughout the empire, e.g. in India (1888) and Palestine (1937), the security branch in South Africa. The Malaysian Special Branch was a preferred instrument of Sir Robert Thompson in his successful efforts to suppress the Malayan insurgency (1948 – 1960). The importance of Special Branch cannot be overestimated. Brickham felt it essential that civilian policing, not military repression, be used to maintain control in Vietnam.

18 ICEX = Intelligence Coordination and Exploitation, the name first given to the project to coordinate all the CIA and other covert activities in Vietnam, also called ICEX-SIDE. “Nation-building” is a term in US imperial vernacular used to imply that there are peoples in the world who occupy territory but have no mature political, social and economic institutions with which to live (like the US wants them to live, that is). It is a descendent of the “white man’s burden” and the British myth about educating peoples for self-rule. The term survives today in US foreign policy language. Its real meaning is the creation of Phoenix-like structures, often with the support of NGOs and so-called “civil society” organisations in places where the US has or is attempting to destroy indigenous institutions, e.g. in Iraq or Afghanistan. That is why it has been rightly said that the US National Endowment for Democracy has simply absorbed a range of functions and technologies developed in the CIA.

19 In 1954, the CIA had very successfully returned Guatemala to United Fruit. Its unsuccessful campaign against Cuba notwithstanding, the Company was confident in its capacity to create and manage Business-friendly regimes.

20 Bruce Cumings, Dominion from Sea to Sea, 2009.

21 DMZ = demilitarised zone, created under the Geneva Accords of 1954 to separate North and South Vietnam. The most frequently cited source for Thompson’s campaign is his Defeating Communist Insurgency: Experiences in Malaya and Vietnam, 1966.

22 US Agency for International Development, an organisation under the US State Department with the mission to execute “development aid” type projects around the world. In Vietnam it was responsible for “revolutionary development” programs, mainly through CORDS, Civil Operations and Revolutionary Development Support. This was also part of what was called euphemistically “winning hearts and minds” (WHAM) or civic action in rural areas. In addition, USIS, the US Information Service, was the State Department psychological operations arm, also active in Vietnam during the war.

23 General William Westmoreland filed a libel suit in 1982 against CBS News for alleging that he had manipulated intelligence and estimates of enemy strength, in part contributing to near military disaster during the surprise Tet Offensive in 1968. The case was settled out of court.

24 MACV= Military Assistance Command Vietnam, the unified command structure for the US military invasion of Vietnam. NVA = North Vietnamese Army, the regular land forces of the government in Hanoi.

25 The late Richard Holbrooke began his “foreign service” career at USAID in “rural pacification” in Vietnam, spending his formative years in the Phoenix program. It should not surprise anyone therefore that he was assigned to help bring Serbia to submission or that his last assignment was coordination of the US wars in South Central Asia. Before John Negroponte acquired his Honduran notoriety, he had also served in Vietnam with Holbrooke.

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The Ir-Af-Pak War -ASSASSINATION INC. -another PHOENIX PROGRAM - Obama Looses the Manhunters Charisma and the Imperial Presidency

By Tom Engelhardt

Let's face it, even Bo is photogenic, charismatic. He's a camera hound. And as for Barack, Michelle, Sasha, and Malia -- keep in mind that we're now in a first name culture -- they all glow on screen.

Before a camera they can do no wrong. And the president himself, well, if you didn't watch his speech in Cairo, you should have. The guy's impressive. Truly. He can speak to multiple audiences -- Arabs, Jews, Muslims, Christians, as well as a staggering range of Americans -- and somehow just about everyone comes away hearing something they like, feeling he's somehow on their side. And it doesn't even feel like pandering. It feels like thoughtfulness. It feels like intelligence.

For all I know -- and the test of this is still a long, treacherous way off -- Barack Obama may turn out to be the best pure politician we've seen since at least Ronald Reagan, if not Franklin Delano Roosevelt. He seems to have Roosevelt's same unreadable ability to listen and make you believe he's with you (no matter what he's actually going to do), which is a skill not to be whistled at.

Right now, he and his people are picking off the last Republican moderates via a little party-switching and some well-crafted appointments, and so driving that party and its conservative base absolutely nuts, if not into extreme southern isolation. In this sense, his first Supreme Court pick was little short of a political stroke of brilliance, whatever she turns out to do on the bench. Whether the opposition "wins" (which they won't) or loses in any attempt to block her nomination, they stand to further alienate a key voting bloc, Hispanics. Now 9% of voters, Hispanics went for Obama in the last election by a staggering 35-point margin. Next time their heft might even bring solidly red-state Texas closer to in-play status in the two-party system. In other words, the president has left his opponents in a situation where they can't win for losing.

Mix Roosevelt, Kennedy, and Reagan...

All this is little short of amazing, particularly if put into even the most modest historical context.

If, in a Star-Trekkian mode -- hand me the "red matter," Mr. Spock! -- you could transport yourself back to early 2003 and tell just about any American what's coming, you might have found yourself institutionalized. If you had said that the new norm would be a black president with Reagan-like popularity, Kennedy-like charisma, and Roosevelt-like skills in the political arena, leading a majority Democratic Congress in search of universal health care, solutions to global warming, energy conservation, and bullet trains, your listener might, at best, have responded with his or her own joke: "A priest, a rabbi, and a penguin walk into a bar..."

After all, back then, before two "hurricanes" -- the invasion of Iraq and Katrina -- began the process of turning our American world upside down, the Bush administration seemed to be riding ever higher globally and the Republican Party even higher than that at home. Back then, the neocons were consumed with imperial dreams of shock-and-awe-style eternal global conquest and domination ("Everyone wants to go to Baghdad. Real men want to go to Tehran"); and the President's "brain," Karl Rove, now exiled to the opinion pages of the Wall Street Journal, was convinced that he was nailing down a domestic Pax Republicana for generations to come.

And at that moment, who would have denied that things would turn out just that way? So don't let anyone tell you that history doesn't have its surprises. A black guy with the middle name of "Hussein," a liberal Chicago politician from -- in a phrase Republicans then regularly spit out, as if saying "Democratic" was too much effort -- the "Democrat Party"? I don't think so.

And yet, in mid-June 2009, less than five months into the Obama presidency, can you even remember that era before the dawn of time when people were wondering what it would be like for an African-American family to inhabit the White House? Would American voters allow it? Could Americans take it?

You betcha!

Being President

All that said, let's not forget reality. Barack Obama did not win an election to be president of Goodwill Industries, or the YMCA, or the Ford Foundation. He may be remarkable in many ways, but he is also president of the United States which means that he is head honcho for the globe's single great garrison state which now, to a significant extent, lives off war and the preparations for future war.

He is today the proprietor of -- to speak only of the region extending from North Africa to the Chinese border that the Bush loyalists used to call "the Greater Middle East" -- American bases, or facilities, or prepositioned military material (or all of the above) at Djibouti in the Horn of Africa, in Bahrain, Oman, the United Arab Emirates, Qatar, Kuwait, Iraq (and Iraqi Kurdistan), Turkey, Afghanistan, Pakistan (where the U.S. military and the CIA share Pakistani military facilities), and a major Air Force facility on the British-controlled Indian Ocean island of Diego Garcia.

Some U.S. bases in these countries are microscopic and solitary, but others like Camp Victory or Balad Air Base, both in Iraq, are gigantic installations in a web of embedded bases. According to an expert on the subject, Chalmers Johnson, the Pentagon's most recent official count of U.S. "sites" (i.e. bases) abroad is 761, but that does not include "espionage bases, those located in war zones, including Iraq and Afghanistan, and miscellaneous facilities in places considered too sensitive to discuss or which the Pentagon for its own reasons chooses to exclude -- e.g. in Israel, Kosovo, or Jordan."

In January when he entered the Oval Office, Barack Obama also inherited the largest embassy on Earth, built in Baghdad by the Bush administration to imperial proportions as a regional command center. It now houses what are politely referred to as 1,000 "diplomats." Recent news reports indicate that such a project wasn't just an aberration of the Bush era. Another embassy, just as gigantic, expected to house "a large military and intelligence contingent," will be constructed by the Obama administration in its new war capital, Islamabad, Pakistan. Once the usual cost overruns are added in, it may turn out be the first billion-dollar embassy. Each of these command centers will, assumedly, anchor the American presence in the Greater Middle East.

Barack Obama is also now the commander-in-chief of 11 aircraft carrier strike groups, which regularly patrol the planet's sea lanes. He sits atop a U.S. Intelligence Community (yes, that's what our intelligence crew like to call themselves) of at least 16 squabbling, overlapping agencies, heavily Pentagonized, and often at each other's throats. They have a cumulative hush-hush budget of perhaps $50 billion or more. (Imagine a power so obsessively consumed by the very idea of "intelligence" that it is willing to support 16 sizeable separate outfits doing such work, and that's not even counting various smaller offices dedicated to intelligence activities.)

The new president will preside over a country which now ponies up almost half the world's total military expenditures. His 2010 estimated Pentagon budget will be marginally higher than the last staggering one from the Bush years at $664 billion. (The real figure, once military funds stowed away in places like the Department of Energy are included, is actually significantly larger.)

He now inhabits a Washington in which deep-thinking consists of a pundit like Michael O'Hanlon of the Brookings Institution whining that these bloated sums are, in fact, too little to "maintain" U.S. forces (a budgetary increase of 7-8% per year for the next decade would, he claims, be just adequate); in which forward-looking means Secretary of Defense Robert Gates reorienting military spending toward preparations for fighting one, two, many Afghanistans; and in which out-of-the-box, futuristic thinking means letting the blue-skies crew at DARPA (the Defense Advanced Research Projects Agency) loose on far-out problems like how to turn "programmable matter" into future Transformer-like weapons of war.

While Obama enthusiasts can take pride in the appointment of some out-of-the-box thinkers in domestic areas, including energy, health, and the science of the environment, in two crucial areas his appointments are pure old-line Washington and have been so from the first post-election transitional moments. His key economic players and advisors are largely a crew of former Clintonistas, or Clintonista wannabes or protégés like Secretary of the Treasury Tim Geithner. They are distinctly inside-the-boxers, some of them responsible for the thinking that, in the 1990s, led directly to this catastrophic economic moment.

As for foreign policy, had the November election results been reversed, Obama's top team of today could just as easily have been appointed by Senator John McCain. National Security Advisor James Jones was actually a McCain friend, Gates someone he admired, and Hillary Clinton a figure he could well have picked for a top post after a narrow election victory, had he decided to reach out to the Democrats. As a group, Obama's key foreign policy figures and advisors are traditional players in the national security state and pre-Bush-style Washington guardians of American power, thinking globally in familiar ways.

General Manhunter

And let's be careful not to put all of this in the passive voice either when it comes to the new president. In both of these areas, he may have felt somewhat unsure of himself and so slotted in the old guard around him as a kind of political protection. Nonetheless, this hasn't just happened to him. He didn't just inherit the presidency. He went for it. And he isn't just sitting atop it. He's actively using it. He's wielding power. In foreign policy terms, he's settling in -- and despite his Cairo speech and various hints of change on subjects like relations with Iran, in largely predictable ways.

He may, for example, have declared a sunshine policy when it comes to transparency in government, but in his war policies in Afghanistan and Pakistan, his imperial avatar is already plunging deep into the dark, distinctly opaque valley of death. He's just appointed a general, Stanley A. McChrystal, as his Afghan commander. From 2003-2008, McChrystal ran a special operations outfit in Iraq (and then Afghanistan) so secret that the Pentagon avoided mention of it. In those years, its operatives were torturing, abusing, and killing Iraqis as part of a systematic targeted assassination program on a large scale. It was, for those who remember the Vietnam era, a mini-Phoenix program in which possibly hundreds of enemies were assassinated: al-Qaeda-in-Iraq types, but also Sunni insurgents, and Sadrists (not to speak of others, since informers always settle scores and turn over their own personal enemies as well).

Although he's now being touted in the press as the man to bring the real deal in counterinsurgency to Afghanistan (and "protect" the Afghan population in the bargain), his actual field is "counter-terrorism." He spoke the right words to Congress during his recent confirmation hearings, but pay no attention.

The team he's now assembling in Washington to lead his operations in Afghanistan (and someday maybe Pakistan) tells you what you really need to know. It's filled with special operations types. The expertise of his chosen key lieutenants is, above all, in special ops work. At the same time, reports Rowan Scarborough at Fox News, an extra 1,000 special operations troops are now being "quietly" dispatched to Afghanistan, bringing the total number there to about 5,000. Keep in mind that it's been the special operations forces, with their kick-down-the-door night raids and air strikes, who have been involved in the most notorious incidents of civilian slaughter, which continue to enrage Afghans.

Note, by the way, that while the president is surging into Afghanistan 21,000 troops and advisors (as well as those special ops forces), ever more civilian diplomats and advisors, and ever larger infusions of money, there is now to be a command surge as well. General McChrystal, according to a recent New York Times article, has "been given carte blanche to handpick a dream team of subordinates, including many Special Operations veterans... [He] is assembling a corps of 400 officers and soldiers who will rotate between the United States and Afghanistan for a minimum of three years. That kind of commitment to one theater of combat is unknown in the military today outside Special Operations, but reflects an approach being imported by General McChrystal, who spent five years in charge of secret commando teams in Iraq and Afghanistan."

Like the new mega-embassy in Pakistan, this figure -- the Spartans, after all, only needed 300 warriors at Thermopylae -- tells us a great deal about the top-heavy manner in which the planet's super-garrison state fights its wars.

So, this is now truly Obama's war, about to be run by his chosen general, a figure from the dark side. Expect, then, from our sunshine president's men an ever bloodier secret campaign of so-called counter-terror (though it's essence is likely to be terror, pure and simple), as befits an imperial power trying to hang on to the Eastern reaches of the Greater Middle East.

The new crew aren't counterinsurgency warriors, but -- a term that has only recently entered our press -- "manhunters." And don't forget, President Obama is now presiding over an expanding war in which "manhunters" engaging in systematic assassination programs will not only be on the ground but, thanks to the CIA's escalating program of targeted assassination by robot aircraft, in the skies over the Pakistani tribal borderlands.

For those who care to remember, it was into counter-terrorism and an orgy of manhunting, abuse, and killing that the Vietnam era version of "counterinsurgency" dissolved as well.

Into the Charnel House of History

A neologism coined for the expanding Afghan war has recently come into widespread use: Af-Pak (for Afghanistan-Pakistan Theater of Operations). But the coining of neologisms shouldn't just be left to those in Washington, so let me suggest one that hints at one possible new world over which our newest president may unexpectedly preside: Ir-Af-Pak. Let it stand, conveniently, for the Iraq-Iran-Afghanistan-Pakistan Theater of Operations -- a neologism that catches the perilously expansionist and devolutionary possibilities of our moment.

Media organizations in increasingly tight financial straits sense the explosive nature of this expansionist moment and, even as they are fleeing Iraq (and former bureaus in so many other places), like the president, they are doubling down and piling into Afghanistan and Pakistan. But don't count Iraq pacified yet. It remains an uneasy, dangerous, explosive place as, in fact, does the Greater Middle East. Worse yet, the Af-Pak War may not itself be done expanding. It could still, for instance, seep into one or more of the Central Asian 'stans, among other places, and already has made it into catastrophic Somalia, while a shaky Yemen could be swept into the grim festivities.

Finally, let's return to that "dream team" being put together by Obama's man in Afghanistan. That team of Spartans, according to the New York Times, is being formed with, minimally, a three-year horizon. This in itself is striking. After all, the Afghan War started in November 2001. So when the shortest possible Afghan tour of duty of the 400 is over, it will have been going on for more than 10½ years -- and no one dares to predict that, three years from now, the war will actually be at an end.

Looked at another way, the figure cited should probably not be one decade, but three. After all, our Afghan adventure began in 1980, when, in the jihad against the Soviets, we were supporting some of the very same fundamentalist figures now allied with the Taliban and fighting us in Afghanistan -- just as, once upon a time, we looked positively upon the Taliban; just as, once, we looked positively upon Saddam Hussein, who was for a while seen as our potential bulwark in the Middle East against the fundamentalist Islamic Republic of Iran. (Remarkably enough, only Iran has, until this moment, retained its position as our regional enemy over these decades.)

What a record, then, of blood and war, of great power politics and imperial hubris, of support for the heinous (including various fundamentalist groups and grim, authoritarian Middle Eastern regimes who remain our allies to this day). What a tale of imperial power frittered away and treasure squandered. Truly, Rudyard Kipling would have been able to do something with this.

As for me, I find myself in awe of these decades of folly. Thirty years in Afghanistan, it staggers the imagination. What tricks does that land play with the minds of imperial Great-Gamers? Maybe it has something to do with those poppies. Who knows? I'm no Kipling, but I am aware that this sorry tale has taken up almost half of my lifetime with no end in sight.

In the meantime, our new president has loosed the manhunters. His manhunters. This is where charisma disappears into the charnel house of history. Watch out.

Tom Engelhardt, co-founder of the American Empire Project, runs the Nation Institute's TomDispatch.com. He is the author of The End of Victory Culture, a history of the Cold War and beyond, as well as of a novel, The Last Days of Publishing. He also edited The World According to TomDispatch: America in the New Age of Empire (Verso, 2008), an alternative history of the mad Bush years.

[Note for readers: Credit where credit's due: the neologism, "Ir-Af-Pak," is actually the invention of Jonathan Schell. A small bow of appreciation to him for handing it off to me and another bow to Jim Peck for some inspired suggestions. Thanks as well to Alfred McCoy for helping to bring me up to speed on the meaning of General McChrystal's Iraq activities. In addition, the filmmaker Robert Greenwald's website Rethink Afghanistan (also the name of his new film) is starting to post clips about Afghan casualties of the U.S. air war. These will be incorporated into part four of his Afghan War film, being released part by part on-line. Because we see so little of this, these initial clips are sobering and well worth viewing. To do so, click here, here, and here.]

Copyright 2009 Tom Engelhardt

From Vietnam to Abu Ghraib - The Dangerous World of Indefinite Detentions

By JENNIFER VAN BERGEN
and DOUGLAS VALENTINE

Where you find administrative detentions, you are likely to find torture. The reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal legal guarantees such as due process, habeas corpus, fair trial, confidential legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and the involvement of the Central Intelligence Agency (“CIA”) or other secret, thus unaccountable, Executive Branch agencies .

Without such protections, justice does not work and human rights are jeopardized. As William F. Schultz, Executive Director of Amnesty International, put it:

“…we are witnessing the orchestrated destruction by the United States of the very basis, the fragile scaffolding, upon which international human rights have been built, painstakingly, bit y bit by bit, since the end of World War II.”

The system was been intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnam War.

Few legal scholars or government officials have discussed the historically established connection between administrative detentions and torture. The subject only came into public consciousness with the revelation that U.S. soldiers were torturing terrorist suspects at Abu Ghraib Prison in Iraq, Bagram Airbase in Afghanistan, and the detention facilities at the U.S. Naval Base in Guantanamo, Cuba. Since then, American and foreign journalists and human rights activists began to raise suspicions, subsequently borne out, that U.S. soldiers and CIA officers were routinely torturing terrorist suspects at numerous detention centers around the world.

The Vietnam detention procedures provide a clear and compelling flow chart of the web of connections between administrative detentions, intelligence laws, national security courts (i.e. courts intended to deal exclusively with national security concerns), violations of international law (particularly the Geneva Conventions), and torture. These components now also appear in U.S. law and policies in the War on Terror.

The Phoenix Program and the War on Terror

In June 1967, the CIA launched a screening, detention, and interrogation program in Vietnam that was a major building block of what eventually became known as “the Phoenix Program.” By the end of the Vietnam War, Phoenix had become notorious for its paramilitary death squads, which claimed between 20,000 (according to the CIA) and 40,000 (according to the South Vietnamese) lives.

Seldom, however, has Phoenix been recognized for the huge detention and interrogation facet that enabled the CIA to compile computerized blacklists of suspected terrorists. As in Iraq (and the unknown “black sites” where so-called “ghost detainees” are held), where the U.S. does not keep track of civilian deaths, it is not known how many innocent people were caught in the Phoenix dragnet. It is only known that Phoenix led to the torture and murder of many, possibly thousands of innocent Vietnamese people.

The basis for the screening, interrogation, and detention aspect of Phoenix was established in 1956, when the fledgling Government of Vietnam issued Ordinance 6, which provided for the administrative detention of “security offenders.” Ordinance 6 was succeeded by several Decree-Laws and Ministerial orders, the most significant being the 1965 “Emergency Decree Law 3/65.” This law provided for “administrative detention of persons considered dangerous to the national security, without court hearing.” The detention orders were referred to as “An Tri.”

Today, the War on Terror has engendered three American detention “laws” to deal with the new enemy of the twenty-first century. These resemble An Tri detentions in numerous and various ways as discussed in the next section and the remainder of this paper. These “laws” are: Section 412 of the PATRIOT Act, which provides for mandatory indefinite detention of aliens considered dangerous to national security, the presidential Military Order of November 13, 2001 (and the accompanying Military Commissions procedures), and the presidential designations of so-called “unlawful enemy combatants.”

Through his Military Order, Bush granted himself extraordinary powers to identify al Qaeda members and those who harbor them, and to detain these people without review by the judicial or legislative branches of government. The subsequent Department of Defense Military Commissions Order No. 1 (“MCO”) was the “enabling law” that put the Military Order into effect. Finally, there came Bush’s “unlawful enemy combatant” (“UEC”) designations of United States citizens, designations not based on his Military Order but potentially triable under the MCO.

In addition to the lack of due process, the main theme of these laws is overarching executive power. In none of them are the incarcerations judicially imposed or based on proof of criminal activity that would be admissible in a court of law. In each, an official of the Executive Branch has near-complete unilateral authority to determine who is detained and for how long. Those held under Section 412 are subject to periodic review by the Attorney General and his determinations are appealable only to the United States Court of Appeals for the District of Columbia. Those subject to the Military Order may not appeal to any court of law, including international courts. The Administration claimed that those held under Bush’s unlawful enemy combatant designations had neither due process nor habeas corpus rights.

More than anything else, it is this theme of near-absolute, unreviewable executive authority that has the potential to bring Phoenix home to roost.

During the Vietnam War, the Phoenix Program coordinated the paramilitary and intelligence components of some two-dozen counterinsurgency programs in an attempt to "neutralize" the “Vietcong infrastructure” (“VCI”). The euphemism "neutralize" meant to kill, capture, make to defect, or turn members of the “infrastructure” into double agents. The word "infrastructure" referred to civilian members of the “shadow government” that was managing the insurgency in South Vietnam. In other words, the Vietcong or VCI.

Members of the infrastructure were referred to as “national security offenders” no matter what their ideology; but if they were members of the Communist Party, they were also referred to as “Communist Criminals,” insofar as Communism had been outlawed and was a separate crime of status. Screening virtually everyone in South Vietnam, and then detaining and interrogating suspects, was the systematic way the CIA sought to identify members of the VCI.
While no extant copy of Emergency Decree 3/65 has been located, a later renewal of the law, issuing from the State Department’s Agency for International Development, “continues the emergency power of the Executive [of Vietnam] to temporarily detain people considered to constitute a danger to the National Security by publicizing or carrying out Communism in any form.” Temporarily meant two years, renewable “if the offender is considered still to constitute a danger.”

Screening, detaining, and interrogating suspects was also how the CIA produced informants, defectors, and double agents. Capture of VCI was the object. But VCI of “high value” (a Phoenix term recently exhumed by the CIA and used in the War on Terror and in Iraq), were usually accompanied by bodyguards, so midnight assassinations and ambushes of high value VCI was the most common form of exploitation of the intelligence gathered through informants, defectors, double agents, and interrogations.

Under the An Tri administrative detention emergency decree, due process was totally non-existent for suspected members of the VCI . People whose names appeared on Phoenix blacklists were subject to midnight arrest, kidnapping, torture, indefinite detention, or assassination, simply on the word of an anonymous informer. After capture and interrogation, if they were still alive, they were tried by “special courts” or military tribunals not unlike those proposed by Bush that were not staffed by legally trained judges. As one official document noted: “In the Special Courts which act in terms of special laws, criminal procedures are reduced to a strict minimum.” There was “no preliminary investigation although the offense is of a criminal nature” and no appeal. The judges could not “pronounce extenuating circumstances, suspend action, nor punishment under the set minimum.” As a result, “the principle of individualization of punishment cannot apply, which is in flagrant contradiction with the concept of justice and responsibility.”

Legally unobstructed by the concepts of justice and legal responsibility, the CIA was the hidden force behind Decree 3/65 and its special courts, just as it was the hidden force behind the Phoenix Program. Likewise, the CIA is one of the hidden forces behind the reconstruction of Iraq’s Ministry of Interior, secret police forces, and judicial system, and the interrogations of detainees at various detention centers.

To escape responsibility and ensure “plausible deniability,” the CIA in Vietnam concealed the detention aspect of Phoenix under cover of the U.S. military/civilian administration in charge of the reconstruction of South Vietnam. The Vietnamese army and police Special Branch, along with U.S. military forces, provided the bulk of manpower and facilities used to “screen” detainees for the CIA, in the same way the CIA and military intelligence today train locals to apply Pentagon-mandated procedures to screen terrorist suspects abroad and maintain military control of prisons in Iraq and Afghanistan.

The CIA built Phoenix operations centers in each of South Vietnam’s 240 districts, in order to secretly identify and neutralize VCI. Often, the CIA relied on the type of heavy-handed military sweeps now being conducted in Iraq. These sweeps invariably filled makeshift detention centers (barbed wire cages with tin roofs) with innocent old men, women and children, since the actual VCI had penetrated the government’s military and police security services and often knew when the sweeps were coming. As in Iraq today, active insurgents were often better able to evade capture than innocent persons.
By its own admission, the CIA had no effective procedure of distinguishing actual “national security violators” from innocent people—an innocent person perhaps being, for example, a rival businessmen being blackmailed by the local Province Chief.

In all, the interrogation and detention centers there had substandard living conditions and indiscriminate crowding of POWs, common criminals, and VCI suspects. There was no way of knowing who should be interrogated, jailed, or released.

Like the administrative detentions under the PATRIOT Act and Bush’s Military Order, the Vietnamese-staffed military tribunals and security committees that heard cases could repeatedly delay someone's “trial.” An Tri hearings could be delayed for up to two years or more—usually until the proper bribe was paid. When brought to trial, a person was unlikely to have a lawyer, which did not really matter, as there was no due process, no habeas corpus, and no need of evidence to convict.
The CIA’s abuses could not be hidden forever and eventually pressure from the Red Cross and liberal American Congresspersons forced the CIA to confront the same legal questions about detainees and “enemy combatants” (a designation that implies guilt before any is proven) that are now finally being raised.

Detentions Under Present-Day Federal Law

The detention provision of the PATRIOT Act added a provision to the Immigration and Nationality Act (INA), mandating that the Attorney General “shall take into custody any alien who is certified” by him. Earlier immigration law allowed for continued detention only when an alien was a danger to the community or flight risk.

An alien may be certified if the Attorney General “has reasonable grounds to believe” that the alien has engaged in any one of a great number of listed prohibited activities. The problem, of course, is that here, just as in the An Tri procedures, there is only limited judicial review of these certifications.

Once an alien is certified, “the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. . . . irrespective of any relief from removal for which the alien may be eligible.” While Section 412 requires that an alien who has not been removed or charged with a crime within seven days “shall [be] release[d],” a person “whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months . . . if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” The Attorney General “shall review” the certification every six months.

The result, of course, as with the An Tri detentions, is that “[b]y the use of repeated extensions a suspect can be detained indefinitely” without ever having any sort of genuine due process hearing.

What we do not yet realize is that the precedents set by the PATRIOT Act administrative detentions of aliens not only could be expanded to include citizens, but already have been—by the President’s unlawful enemy combatant designations. The concern is not that a few innocent aliens may be indefinitely detained but that this could lead to the indefinite administrative detention of anyone who criticizes the government.

The crimes under the national security laws of the Republic of Vietnam during U.S. occupation are ominously similar to those under the alien terrorism provisions of the PATRIOT Act. Both sets of laws were intended to address acts that threaten the public safety and/or national security but neither provided for criminal prosecution, procedural due process, or Sixth Amendment-type protections. Both involved indefinite detentions.

National security and foreign intelligence concepts are central to the rationale for indefinite administrative detentions. It is these concepts that prompt or even compel the creation of detention programs that, by definition, must evade constitutional and human rights requirements. Administrative detentions are national security detentions.

Proponents of administrative detentions claim that administrative detentions are the humane alternative to dealing with national security and foreign intelligence issues—the other way being assassination. Criminal trials are viewed as inadequate. Thus, it is important to look at the definitions of these concepts.

Provisions of the PATRIOT Act, other than Section 412, where national security is a key concept are those that relate to foreign intelligence. The concept of foreign intelligence is the bridge that has permitted national security detentions to be written into our federal law. Where in South Vietnam such detentions were permitted due to insurgency, national emergency, and war fought within that nation’s borders, now they are permitted in the United States because of an amorphous (congressionally undeclared) “War on Terror” fought everywhere.

U.S. officials since 9/11 have repeatedly stated that terrorism is an utterly new animal, that we are fighting a new kind of war, but this is exactly what officials said about Vietnam. The U.S. has always perceived a need for foreign intelligence, and the two (terrorism and foreign intelligence) have now become inextricably intertwined in our laws. Where foreign intelligence used to be gathered by spying overseas (or on foreign powers and their agents who were here in the U.S.), which was exclusively an Executive Branch function, foreign intelligence investigations since 1978 have been regulated by the Foreign Intelligence Surveillance Act, or FISA, and a special, secret federal court called the FISA Court or FISC, that reviews applications to spy domestically.

While FISA was enacted in order to curb indiscriminate and unreviewable Executive Branch surveillance, the law has led gradually to the very dangerous mixing of criminal law (which provides for the usual constitutional protections) and foreign intelligence law—i.e. FISA (which does not). It has also led to the interchangeability of the terms foreign intelligence investigation, terrorism investigation, and national security investigation. In other words, anything that can be linked to a terrorism investigation is a national security investigation, which naturally involves foreign intelligence. A national security investigation may or may not involve terrorism, but will likely involve application of FISA.

Just about anything can be linked to national security. And once linked, the lowered constitutional standards of FISA kick in. This opens the door for almost anybody to be investigated and, when considered alongside the detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions are intended to permit detentions of only aliens who are thought to be national security risks, it is clear that these provisions set a precedent for government detentions of innocent dissenting citizens and can be extended to those who merely disagree with the government. Indeed, with police actions and prosecutions against grass roots activists increasing, some might argue it is already happening.

A closer look at the definitions of foreign intelligence and national security reveals some ominous threads. Oddly, national security is not defined in FISA (which is, of course, the law that most deals with issues of national security). Rather, it is defined in the immigration laws relating to excludable and removable aliens. National security is there defined as “the national defense, foreign relations, or economic interests of the United States.” Something as routine and legally permissible as a workers strike at a Coca Cola plant in Colombia could be construed as a threat under this definition.

Although national security is not defined in FISA, “threats to national security” are set forth in FISA in provisions which establish the basis for coordination between intelligence and law enforcement. These provisions use the identical language as that used in defining foreign intelligence information, discussed in the next paragraph.

Foreign intelligence information (and therefore a “threat to national security”) is:

[I]nformation that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

This type of foreign intelligence information is sometimes called “protective” or “counterintelligence” information. It requires the type of activity we usually think of spies engaging in.

A second definition of foreign intelligence information in FISA includes information relevant or necessary “to the national defense or the security of the United States” or “the conduct of the foreign affairs of the United States.” According to the FISA Review Court: “This definition generally involves information referred to as ‘affirmative’ or ‘positive’ foreign intelligence information rather than the ‘protective’ or ‘counterintelligence’ information . . . .” This type of intelligence is a much vaguer, more expansive type of information. Just about anything could be relevant to the national defense or conduct of foreign affairs. Indeed, by this definition, the Phoenix Program was a foreign intelligence operation, designed ultimately to identify the managers of the insurgency in North Vietnam.

With either type of intelligence, it is important to remember that such information is gathered for the purpose of protecting the interests of the nation, not for bringing criminal prosecutions. This distinction is important when you consider that intelligence information is not protected by the Fourth Amendment probable cause requirement. In other words, those gathering information under a foreign intelligence investigation do not have to provide a judge with evidence of probable cause of criminal activity in order to obtain a warrant, although information obtained via a FISA warrant can nonetheless be used in a criminal prosecution.

The FISA Review Court, convened for the first time in history in 2002 to review a FISA Court decision on the interpretation of the PATRIOT Act provision relating to the proper standard for FISA warrants, noted that certain FISA definitions do require criminal activity. While FISA does not require probable cause of criminal activity, it does require probable cause that the target is a foreign power or an agent of a foreign power. Thus, the FISA Review Court noted:

The definition of an agent of a foreign power, if it pertains to a U.S. person . . . is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor [sic].”

While the Court draws much of its subsequent analysis from its observation that foreign intelligence warrants do, after all, relate to criminal activity, it nonetheless notes that: “The term ‘foreign power,’ . . . is not defined [in FISA] solely in terms of criminal activity. For example, although the term includes a group engaged in international terrorism, which would involve criminal activity, it also includes any foreign government.” Thus, even if criminal activity does underlie some FISA warrants, FISA does not require proof of such activity (rather it assumes it), and the predetermined underlying criminal activity inherent in the definition is no justification for allowing a lack of probable cause of criminal activity standard in cases that eventually become criminal prosecutions. Exactly the opposite, one would think.

Astonishingly, the FISA Review Court itself acknowledged that the constitutional question of whether FISA strikes the right balance “has no definitive jurisprudential answer” and that “to the extent a FISA order comes close to meeting [the requirements of federal criminal law], that certainly bears on its reasonableness under the Fourth Amendment.” In any case, they declined to decide the issue. The Court concluded that “the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.”

Military Commissions and Unlawful Enemy Combatants

Bush cited Congress’ September 18, 2001, Authorization for Use of Military Force (“AUMF”) and his authority as Commander-in-Chief to justify his Military Order of November 13, 2001.

The AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

It took the Department of Defense four months to establish procedures for military tribunals. On March 21, 2002, it issued Military Commission Order No. 1 (“MCO”) providing “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism.”

However, in the meantime hundreds of men had already been held in indefinite detention at Guantanamo, Abu Ghraib and other locations, and, as has become increasingly clear from news reports, untold numbers had already been tortured and in some cases murdered at the hands of their captors.

In any case, certification under the Military Order did not work well enough. Although it provided for written certification of al Qaida terrorists, by the time the MCO was issued, Defense Department officials “indicated they would hold the Guantanamo prisoners indefinitely and on different legal grounds” than the Military Order provided for—“as ‘enemy combatants’ in a war against the United States.”

The reason was apparently that “intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most prisoners to even complete the [certification] forms” required by the Military Order. Thus, where there was not enough evidence to detain under the Presidential Military Order certification process or for that matter to detain on pending criminal charges, new, different legal grounds, based solely on the President’s determination—the unlawful enemy combatant designations—were simply substituted.

The enemy combatant designations have been applied to both non-citizen detainees at Guantanamo and to several American citizens being detained at military brigs in the United States. The Administration argued that enemy combatants had no due process or habeas corpus rights whatsoever. The Supreme Court disagreed, handing down its landmark decision in Hamdi v. Rumsfeld, in which the Court ruled that a U.S. citizen enemy combatant captured on a battlefield abroad in combat against U.S. forces was entitled to have his status determined by a neutral decision maker. The same day the Hamdi decision was handed down, the Court also decided in Rasul v. Bush that Guantanamo detainees also had some due process rights and a habeas corpus right to file in any U.S. federal court. The Rasul decision led to the Defense Department establishing the “Combatant Status Review Tribunals” (“CSRT”), which some feel fail to satisfy even the minimum standards of due process required either by Rasul or Hamdi.

Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (also called the Third Geneva Convention and often abbreviated “GPW”), states: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” are POW’s, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Until after the Supreme Court decision in Rasul, President Bush refused to accord detainees the protections of POW status or even to afford them any status hearing at all. Similarly, in Vietnam, officials declared that Geneva Common Article 3, common to all four of the Geneva Conventions, applied “only to sentencing for crimes and [did] not prohibit a state from interning civilians or subjecting them to emergency detention when such measures are necessary for the security or safety of the state.”

Common Article 3 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.” Article 3 has, according to one commentator, “been described as ‘a convention within a convention’ to provide a general formula covering respect for intrinsic human values that would always be in force, without regard to the characterization the parties to a conflict might give it.”

However, as with the Bush Administration, so during Vietnam, “the United States and South Vietnamese Governments . . . agreed that humanitarian treatment must be accorded to all persons,” and ultimately, when its hand was forced, the U.S. acknowledged that there were “aspects of the ‘an tri’ procedure [that] raise[d] some problems which give us concern.” Officials testified, however, that the procedures were being improved to “accord with fundamental concepts of due process, and to improve the conditions of internment.”

By 1971 the United States Military Assistance Command in Vietnam (“MACV”) had instituted screening procedures to precede the detention proceedings. Like the screening procedures in use now at Guantanamo, it is doubtful whether these procedures satisfied Geneva’s requirements.

In 1966, MACV first issued a directive pertaining to the determination of POW status. Under this directive, identifiable North Vietnamese Army and Vietcong fighters were accorded POW status upon capture. For all others, a screening procedure was employed. So-called “Combined Tactical Screening Centers” were “activated.” Screenings were to be conducted at the “lowest echelon of command practical.”

According to Congressional Research Service attorney Jennifer Elsea, “the first implementation of written procedures for . . . tribunals” under Article 5 of the Third Geneva Convention since Geneva’s signing in 1949, was set forth in this 1966 MACV directive. However, it is clear that, in fact, the directive grew out of official intent to evade Geneva’s requirements while satisfying Congress that the U.S. was trying to comply “despite the anomalies created by attempting to apply rules essentially designed for a World War II situation to one involving a political, subversive infrastructure.”

All detainees were to be classified as either prisoners of war or non-prisoners of war. Non-POW’s were either civil defendants, returnees, or innocent civilians. Returnees were persons who, regardless of past membership in any combat force, voluntarily submitted to the “control” of the Government of Vietnam. Civil defendants were not entitled to POW status but were subject to trial for offenses against Vietnamese laws. These included spies, saboteurs, and terrorists.

Detainees were defined as “[p]ersons who have been detained but whose final status has not yet been determined.” This rule, as Valentine’s book reveals, did not describe reality, as persons who might meet any of the classifications, including POWs, could be and routinely were detained indefinitely and tortured during that detention.

The directive declared that “[s]uch persons are entitled to humane treatment in accordance with the provisions of the Geneva Conventions” as if the declaration brought the U.S. fully into compliance with Geneva and made further compliance unnecessary. Those who were not regular North Vietnamese or Vietcong soldiers—in other words, “irregulars”—were accorded POW status, if caught in combat and not engaging in terrorism, sabotage, or spying. Such irregulars included: guerrillas, self-defense forces, and secret self-defense forces.

Although the MACV directive does not so state, evidently those who were not obviously POWs were given a status determination hearing. According to Elsea, “those not treated as POWs were treated as civil defendants, and were accorded the substantive and procedural protections” of Geneva. Again, however, we know that many of these civilian defendants languished interminably in the An Tri prisons.

In determining status, “[e]xploitation of human sources, documents, materiel [sic], and other intelligence requirements incident to the effective screening and classification of detainees will normally be accomplished by intelligence personnel of the participating elements” and “[m]aximum use must be made of interrogators and interpreters to conduct initial screening and segregation at the lowest possible level.”

These threshold procedures appear to resemble those used by the Bush Administration since Rasul. The MACV directive notes that the “detaining unit” was to “insure that the proper documentation [was] initiated and maintained on every individual” and that “data reflect circumstances of capture and whether documents o[r] weapons were found on the detainee.” The hearings were clearly one-sided, weighted in favor of detention, and assumed accuracy of intelligence and the detaining unit’s documentation. No provision appears to have been made at these screening hearings for the detainee to present evidence in his favor, for legal representation, proper standards of proof, or other traditional due process protections.

Combatants in War on Terror

Guantanamo screening procedures came about, like those in Vietnam, only after public clamor and two Supreme Court decisions: Hamdi and Rasul. But, despite these two rulings, government attorneys continued to argue that although detainees may have a right to some due process in challenging their detentions, all the process that was due was “a right to appear before a panel set up entirely within the military, run by officers, under rules that allow the detainee no lawyer and no assurance of access to all the facts about their capture and detention.” The combatant status review tribunals (“CSRTs”) were purportedly erected to satisfy the Supreme Court’s dictates, but Amnesty International expressed its opinion that “the CSRT process may have been devised as an attempt by the government to narrow the scope of any judicial review.”

Senator Patrick Leahy noted that the Administration established the CSRTs “only after being rebuked by the Supreme Court in Rasul v. Bush,” and the procedures only “affirmed the ‘enemy combatant’ status of the Guantanamo detainees based on secret evidence to which the detainees were denied access, raising serious questions about the fairness of the process.”
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Although news reports revealed a massive lack of adequate procedures and guidance for interrogations at Abu Ghraib, little has been reported about the screening, detention, or trial procedures. Some of the procedures used in the Iraq war theater are detailed in documents obtained from the Department of Defense by the American Civil Liberties Union via a Freedom of Information Act request.

According to one undated (ca. 2003-04) document titled “Detainee Process,” if a detainee was determined (by what method, the documents do not say) to have high “intelligence value,” he would immediately be transferred to the “Division Central Collection Point” in Tikrit, Iraq. If he was determined to have no intelligence value “from and/or through interrogations,” he would be “tried for the violations listed,” apparently at the regional “collection point.” Proceedings were conducted “based on a summary courts martial model.” If the detainee had no intelligence value and was not found to have committed any other violations, he was released. Reasons for delay in a detainees transfer or release was generally missing or incomplete information.
A flow chart for “Detainee Processing” at Tikrit, Iraq, lists the steps to be followed: individual detained, capturing unit complete paperwork, detainee arrives at one of the regional collection point detention facilities, detainee is screened “by CI,” packet is completed. If a detainee had “intel value” or otherwise warranted further detention, he was sent to the Division Central Collection Point in Tikrit.

At Tikrit, detainee screening was conducted only at “three designated interrogation tents.” One side was to be kept open at all times unless there was a military police officer inside.

One officer explained to superiors that detainees are most susceptible during the first few hours after capture:

The prisoners are captured by Soldiers, taken from their familiar surroundings, blindfolded and put into a truck and brought to this place (Abu Ghraib); and then they are pushed down a hall with guards barking orders and thrown into a cell, naked; and that not knowing what was going to happen or what the guards might do caused them extreme fear.

Detainee categories in the Iraq theatre are very similar to those in Vietnam. Category I is high level enemy prisoners of war (“EPWs”), detained persons, civilian internees, including “black list individuals,” suspected war criminals, and “violators of UN Resolutions whose broad or specific knowledge makes it necessary for them to be questioned without delay by specially qualified interrogators or debriefers.” Category IA are mid-level EPWs, detained persons, civilian internees, including:

[G]rey list individuals whose broad or specific knowledge of regional and national level Ba’ath Party and Fedayeen activities, leadership and cell structure, identities of members, recruiting, intelligence capabilities, financing, training, planning, communications and/or locations, makes it necessary for them to be questioned without delay by operationally focused interrogators. Also includes persons suspected of affiliation with terrorist organizations, foreign intelligence services and foreign fighters.

Both Category A and A1 detainees are transferred immediately to the Task Force Central Collection Point in Tikrit. Category A1 detainees are processed and thereafter transferred to the Coalition Interrogation Facility at Baghdad Airport.

According to one army investigation: “At first, at Abu Ghraib and elsewhere in Iraq, the handling of detainees, appropriately documenting their capture, and identifying and accounting for them, were all dysfunctional processes, using little or no automation tools.” The senior investigating officer, Anthony Jones, noted, “When policies, SOPs [standard operating procedures], or doctrine were available, Soldiers [sic] were inconsistently following them. In addition, in some units, training on standard procedures or mission tasks was inadequate.” However, Jones added, “In my assessment, I do not believe that multiple policies resulted in the violent or sexual abuses discovered at Abu Ghraib. However, confusion over policies contributed to some of the non-violent and non-sexual abuses.”

Finally, Jones pointed out several additional pertinent elements of the Abu Ghraib detention situation. First were the detainees that “were accepted from other agencies and services without proper in-processing, accountability, and documentation,” who were referred to as “ghost detainees.” Second, Jones remarked about the “systemic lack of accountability for interrogator actions and detainees [that] plagued detainee operations in Abu Ghraib.” Finally, Jones noted:

Although the FBI, JTF-121, Criminal Investigative Task Force, [Iraq Survey Group], and the [Central Intelligence Agency] (CIA) were all present at Abu Ghraib, the acronym “Other Government Agency” (OGA) referred almost exclusively to the CIA. CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib.

Most importantly, “local CIA officers convinced military leaders that they should be allowed to operate outside the established local rules and procedures.”

It is doubtful whether CSRTs have been applied to citizen detainees, but as of July 2005, they were completed at Guantanamo for all detainees.

The CSRTs are administrative rather than adversarial, but each detainee may present “‘reasonably available’ evidence and witnesses to a panel of three commissioned officers to try to demonstrate that the detainee does not meet the criteria to be designated.”

“CSRT procedures are modeled on the procedures of Army Regulation (AR) 190-8.” The AR divides captives into four classes: enemy prisoners of war, retained personnel (chaplains, medical personnel, Red Cross), civilian internees, and other detainees. Under AR, the preliminary determination of status is made on the battlefield; those made under CSRT procedures clearly are not.

AR provides that the reviewing panel decides by a majority vote on the preponderance of evidence whether an individual should be detained.
According to Human Rights First, the “tribunals that will conduct detainees’ status hearings are not neutral” and fail to satisfy the Supreme Court’s rulings in either Rasul or Hamdi. Human Rights First notes:

While tribunal officers are to have had no previous connection with the apprehension, detention, or interrogation of the detainees, this condition is no guarantee of neutrality. A finding in favor of the detainee would require the officer to challenge determinations made by his or her entire chain of command, including the President, who, in an “order” issued February 7, 2002, “determine[d] that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war . . . [and likewise] note[d] that . . . al-Qaida detainees also do not qualify as prisoner[s] of war.” Moreover, the tribunals may only affirm the original “enemy combatant” designation, or determination, and they do not have the option to declare a detainee a “lawful combatant/prisoner of war.”

Human Rights First claims that the status hearings “do not even measure up to the military regulation they claim to mirror,” which established, by contrast, “no institutional interest . . . in the outcome of any particular individual’s hearing” even in battlefield hearings.

The CSRTs are not bound by rules of evidence that would apply in federal court, or even in a court martial. The government’s evidence is presumed to be “genuine and accurate.” The government is required to present all of its relevant evidence. The detainee’s “personal representative,” who is assigned to him, may view classified information but does not act as legal counsel, since the representative need not possess any professional training and communications are not confidential—a fact of which detainees are apparently not informed.

Human Rights First points out that the fact that if status hearings had been “held at the time of capture [and] determined that an individual was a noncombatant, his deportation to Guantanamo . . . would have been a grave breach of the [Geneva] Convention.”

All in all, the War on Terror screening procedures share many, if not most, of the features of the Vietnam screenings; these can be most easily summed up as violating Articles 3 and 4 of the Third Geneva Convention. The rationales for the structure of these screening procedures also seems to be similar: that fighting a new and vicious enemy who does not follow the laws of war himself excuses us from following those laws ourselves, in particular the so-called “Geneva law” that emphasizes human rights and responsibilities.

An Tri Tribunal Procedures

A contemporary Department of State handbook of Vietnamese national security laws sets forth the An Tri procedures in detail. The An Tri detention system permitted the rounding up of “Civilian Security Suspects”—those who were thought to be a “[d]anger to National Security”—on the basis of nothing more than “simply . . . the word of an anonymous informer.” The U.S. puppet Vietnamese “Security Committee” could “take action on a case even though a criminal act cannot be proven.” Members of “infrastructure, various associations, and political cadre, draft evaders, deserters, and those suspected of having violated the laws of the [Republic of Vietnam] will normally be classified as civil defendants and not [prisoners of war].” The procedures for administrative detention were “far less exacting and technical than those of the [regular Vietnamese] courts.”

Similar to designated war on terror “unlawful enemy combatant” detainees, “Civilian Security Suspects” could be detained initially for a maximum period of two years, with the potential of renewed periods upon review. Proceedings were closed to the public; the detainee had no right to counsel or right to appear personally at his hearing. Civilian security offenders were tried by Special Courts, Security Committees or Military Courts, “in accordance with the emergency Decrees and Decree-Laws which define security offenses and specific the forum.”

The rules of evidence were “relatively lenient,” although an accused, in theory if not in practice, could “rebut such evidence and . . . demand that witnesses whose statements are in the dossier appear personally in court.” Evidence had apparently merely to be “sufficient” to “support the arrest, custody, trial and conviction of the suspect,” but classified information could be “[brought] to the attention of the court . . . [but] not be incorporated in the official record of the case.” Confessions were accepted in evidence, “signed by the accused,” and “a substantial number of convictions” were “obtained through confessions.”

The procedures in a fourth venue, Military Field Courts—whose “operation . . . received considerable public attention due to the sensational nature of some of the [Vietcong] cases tried there and the gravity of the penalties involved”—were “considerably simplified and abbreviated, particularly as regards the pre-trial investigations.” The decisions of such courts were final, without any right of appeal. The compiler of these statistics noted that the “laws and procedures for dealing with security offenders are far from perfect and eventually must be replaced” but “for the present, the emphasis must continue to be on winning the war.”

The Bush Military Commission Procedures

While the Military Order and the Military Commissions Order provide for trials of enemy combatants, nowhere do these orders require that every detainee be tried, and, in fact, as we have seen, the Administration has made it clear that it does not intend to try most detainees, emphasizing that the purpose of these detentions is to keep people off the battlefield. The procedures established for military tribunals, however, presently contain the greatest degree of procedure most detainees will be granted. They also contain a similar mishmash of civil and war “crimes” as the An Tri trial procedures

The lower standards of proof, expanded secrecy provisions, denial of judicial review, and the lack of independence from the executive branch go hand-in-hand with and form part of the infrastructure for administrative detentions.

The Military Order, in anticipation of the MCO, stipulates a “full and fair trial” but, as the Congressional Research Service notes, it “contains few specific safeguards that appear to address the issue of impartiality.” The military commission panel sits “as triers of both fact and law.” Evidence may be admitted if, in the opinion of the presiding officer, it has “probative value to a reasonable person.”

An individual subject to the order may be tried only by the commission and “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in any court of the United States, any court of any foreign nation, or any international tribunal.” Jennifer Elsea notes that “[t]he President appears to have complete control over the proceedings.” She continues:

He or his designee decide which charges to press, select the members of the panel, the prosecution and the defense counsel, select the members of the review panel, and approve and implement the final outcome. The procedural rules are entirely under the control of the President or his designees, who write them, interpret them, enforce them, and may amend them at any time.

Procedural safeguards include the right to be informed of charges sufficiently in advance of trial to prepare for defense, presumption of innocence, guilt beyond a reasonable doubt, open hearings (with exceptions), right to counsel (with restrictions, including monitoring of communications and supervision), and right to discovery to the extent necessary and reasonably available, subject to secrecy determinations. There appear to be no exclusionary rules for admissibility of evidence and no authentication requirements for depositions. The main concern appears to be the need for secrecy rather than fairness of process.

According to Judge Evan J. Wallach, Bush’s Military Order “and subsequent statements by the President, Vice President, Attorney General, Secretary of Defense, and the White House Counsel made it clear that the tribunals were intended to follow procedural and evidentiary rules similar to those used to try spies and war criminals during and after the Second World War,” which were applied in World War Two and in the post-war tribunals [were] repeatedly used to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts martial conducted by the armed forces of the United States.

Wallach points out further that: “None of the screening processes applied to the Guantanamo detainees, either pre-shipment from Afghanistan, during incarceration, or following the Supreme Court’s mandate in Hamdi, meets the requisites of Article 5” of the Third Geneva Convention relating to prisoners of war.

Indeed, the MCO procedures were considered inadequate by many, including human rights organizations and even by some of the military officers assigned to prosecute Guantanamo suspects. Three retired military officers, each formerly either a Judge Advocate General or senior legal advisor for a branch of the United States military, jointly filed an amicus curiae brief in the consolidated case of Rasul v. Bush, stating: “The government should not be permitted, through Executive fiat, to imprison persons indefinitely when no charges have been brought against them and the prisoners are barred from all access to courts and other tribunals to determine their status.”

Several military defense lawyers filed challenges to the impartiality of the commission judges, three of whom were subsequently removed. The lawyers also filed in federal court challenging the military tribunals. The suit, Hamdan v. Rumsfeld, resulted in a November 2004 District of Columbia Circuit Court decision declaring that unless and until the rules for Military Commissions (Department of Defense Military Commission Order No. 1) are amended so that they are consistent with and not contrary to Uniform Code of Military Justice Article 39, 10 U.S.C. 839, petitioner may not be tried by Military Commission for the offenses with which he is charged [and] unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-of-war under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, he may not be tried by Military Commission for the offenses with which he is charged.

However, on July 15, 2005, the Court of Appeals for the D.C. Circuit overturned the D.C. District Court decision, ruling that Hamdan has no individual right to assert a Geneva violation and that the CSRT, which determined that Hamdan is an enemy combatant subject to indefinite detention, satisfies Geneva’s hearing requirement. Hamdan has appealed to the Supreme Court. Neil Katyal, Hamdan’s attorney, writes:

The court of appeals, by rejecting longstanding constitutional, international law, and statutory constraints on military commissions, has given the President that power in tribunals that impose life imprisonment and death. Its decision vests the President with the ability to circumvent the federal courts and time-tested limits on the Executive.

He notes that: “This case challenges (1) a commission without explicit Congressional authorization, (2) in a place far removed from hostilities, (3) to try an offense unknown to the laws of war, (4) under procedures that flout basic tenets of military justice, (5) against a civilian who contests his unlawful combatancy.” And: “The essence of the court of appeals’ contrary position is that while Petitioner has no rights under the Constitution, treaties, common law, and statutes, he is subject to the penalties and pains of each.”

On a somewhat analogous question, on October 5, 2005, the Senate voted 90-9 in favor of an anti-torture statute that would require all interrogations to comply with the Uniform Code of Military Justice. The D.C. Circuit Court of Appeals did not require that the Military Tribunals adhere to the Uniform Code, as the D.C. Circuit Court itself had, but Congress defied the White House’s threatened veto to pass the anti-torture law that requires such adherence.

The Bush detention scheme, like An-Tri, is designed to screen and detain without a regular trial those who are merely suspected of being dangerous to national security. Again like An-Tri, it was set up with the primary purpose of gathering intelligence, or as White House Counsel Alberto Gonzales said, with “a high premium on . . . the ability to quickly obtain information from captured terrorists.”

The Law of War & Determination of Detainee Status

Where the U.S. eventually acknowledged residual responsibility under the Geneva Conventions for the Phoenix detentions in Vietnam (originally having denied all responsibility, saying it was not in charge), the Bush Administration, while stating it would follow the spirit of Geneva, from the start claimed that Geneva does not apply to most of the detainees, and in any case, that no tribunal other than its own executive decision was needed to determine a detainee’s status.

Bush refused to acknowledge the application of Geneva to terrorist suspects, but White House counsel Alberto Gonzales advised him that “even if [the Geneva Convention] is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel.” This sort of incongruity calls for judicial and congressional scrutiny.

There are two branches of the laws of war: the older one is sometimes called the “Hague law,” after the Hague Conventions of 1899 and 1907, which prescribes the rules of engagement during combat and is based on the key principles of military necessity and proportionality, and the newer “Geneva law,” after the Geneva Conventions of 1929 and 1949, which emphasizes human rights and responsibilities, including the humane treatment of prisoners.

The law of war is based on the idea of reciprocity—you treat your enemies the way you want them to treat you. Derogation from the rules by one party, however, does not excuse breaches by another. “Were this not the case, any deviation from the letter of the law could be invoked to justify wholesale abandonment of the law of war, causing the conflict to degenerate into the kind of barbarity the law of war aims to mitigate.”

Further, parties to an armed conflict retain the same rights and obligations without regard to whether they initiated the hostilities or whether their conduct is justifiable under international law.

Thus, President Bush coud not excuse the United States from honoring (or applying) the Geneva Conventions or other international treaties applicable in the war on terror on the grounds that the 9/11 attacks were unprovoked or violated the laws of war.

Intentional Violations of the Geneva Conventions

One of the darkest truths about both the An Tri detentions and the current administrative detentions of unlawful enemy combatants is that not only did both violate international and domestic laws, but instead that in both cases the U.S. government officials clearly did so intentionally.

With respect to Bush Administration policies, two respected law professors, both of whom served in the military, independently concluded that the January 2002 memo by White House Counsel Alberto R. Gonzales and subsequent presidential decisions and authorizations are “evidence of the initiation of a Common Plan to violate the 1949 Geneva Conventions.”

The Phoenix Program was from the start an unlawful program. It began as a CIA covert operation, ultimately evolving into a program of detentions of dangerous persons, purportedly run by the Vietnamese, but in fact always managed by Americans. Eventually, those in charge—an “old-boy network, a group of guys at highest level . . . who thought they were Lawrence of Arabia”—were required to answer to Congress and conform the program more closely to Geneva requirements. But there was never a full accounting of American transgressions against the Vietnamese.

Similarly, Bush administration rationales and justifications for violating established, time-tested international protections are the same as those used by American officials during Vietnam. Indeed, what one Vietnamese scholar presciently wrote in 1982 could be echoed today: “American politicians have not yet changed their policy . . . . Almost the same people [are applying] the same policy with the same principles and the same spirit.”

As noted earlier, American officials in Vietnam decided that Geneva did not apply to security detainees. Their argument that either the individuals were not “protected persons” under Article 4 of the Fourth Geneva Convention (for protection of civilians) or that Article 3 (common to all the four Geneva Conventions, mandating humanitarian treatment to all persons, even if not protected persons, and forbidding “‘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’”) did not apply to those who were not charged with a crime and did “not prohibit a state from interning civilians or subjecting them to emergency detention when such measures are necessary for the security or safety of the state,” is ominously similar to the reasoning applied by the Bush Administration.

Based on the argument that the President has the constitutional authority to suspend treaties in certain circumstances or to interpret them to mean that they do not apply to certain persons, President Bush initially decreed that the Geneva Conventions did not apply to al Qaeda (because they were not party to the Conventions) or the Taliban (because they were unlawful enemy combatants not qualifying as prisoners of war).

Judge Wallach notes, “it [is] clear that by the end of January [2002], at least, consideration was being given to conduct which might violate [the Third Geneva Convention’s] strictures regarding the detention and interrogation of prisoners of war.” Former White House Counsel Alberto Gonzales —now Attorney General, with all the powers that position entails—advised the President on January 25, 2002 that if the President determined that Geneva did not apply, his decision would render “obsolete Geneva’s strict limitations on questioning of enemy prisoners,” thus “eliminat[ing] any argument regarding the need for case-by-case determinations of POW status,” and insulating the Administration against domestic prosecution for war crimes.

Wallach points out: “Any such approach is incompatible with the core concepts of rule of law, coequal branches of government and separation of powers,” “would fly in the face of every concept of rule of law and regulation of armed conflict developed over the past two hundred years . . . [and] would also be a direct and criminal violation of the standards for minimal conflict in war time developed at Nuremburg.” Wallach also notes, these violations could constitute grave breaches of Geneva, which would constitute a violation of the War Crimes Act of 1996.

The An-Tri detentions arose out of a desperate climate. In Vietnam, American involvement began in the early 1950s, with American soldiers fighting alongside the French. By 1952, American advisers began training Vietnamese units. By 1954, the United States had installed Ngo Dinh Diem, and the CIA was operating a brutal psychological warfare program which later evolved and was incorporated into Phoenix. Arrests and executions of Vietnamese Communists began in 1956 with the notorious Denunciation campaign under Diem. “The campaign was managed by security committees, which were chaired by CIA advised security officers who had authority to arrest, confiscate land from, and summarily execute Communists.”
A State of National Emergency was declared by the Vietnamese puppet government in August 1964 and a State of War in June 1965. A 1972 memo by Ray A. Meyer, an American legal adviser in Vietnam, making recommendations for An-Tri reforms, noted: “It must be recognized that, in Vietnam . . . preventive detention is a substitute for killing people.”

But even when “reforms” of the An-Tri system were considered, the U.S. embassy decided to defer making them because of “intractable CIA internal security considerations . . .” and the system was then permanently solidified into “a system of indeterminate terms of detention.” Although many of Meyer’s recommendations (hearings open to the public, gradual phasing out of An-Tri), were not adopted, the indefinite detention program was retained.

These facts illustrate the original, albeit ex post facto, rationale for the indefinite detentions: an alternative to battlefield killing, but it was always a means of gaining and exploiting intelligence. This rationale has now been extended to the global “War on Terror,” justifying indefinite detentions of any terrorist suspect, without trial, without any sort of due process or habeas corpus protections, and, prior to the Supreme Court decision in Hamdi, without even a legitimate status determination.

The dilemma now, as during Vietnam, is genuine. How to identify and what to do with persons who plan to sabotage and murder civilians? Is this a war or is it an insurgency? What do you do when civilians may be the enemy? Outright assassination of masses of suspect civilians is not only morally repugnant and wrong, but against the laws of war. But, then, what do you do when the insurgency is civilian based? The easy answer is: you “administratively” (but not quite legally) detain.

But indefinite administrative detentions are not the answer, since the reader may recall that the Phoenix Program was not only about detentions—and this is the real crux of the problem with administrative detention programs—Phoenix was in fact originally an assassination program, so that the culture of what came to be known as guerilla or “unconventional warfare,” bled into the detention program, leading to egregious abuses, torture and killing of detainees, exactly what has now been discovered in our treatment of prisoners at Abu Ghraib and other combatant detention centers.

In both cases the justification was identical: these are dangerous terrorists who want to kill us; therefore, the humane alternative to killing them is to indefinitely detain them. The justification makes sense until one realizes that without an adequate screening process, there is no way to tell who is and who is not a dangerous terrorist. American governments and presidents have relied for centuries on intelligence to make such decisions – and that is the underlying basis for making such determinations up to now: i.e., that the President has the authority to determine who is and who is not a dangerous terrorist because the President has access to intelligence. However, unquestioning reliance on the President has throughout history been repeatedly shown to have been misplaced. Intelligence is often based on hearsay, innuendo, and rumor. It is therefore problematic to rely exclusively on intelligence as the means of determining who is dangerous and who is not.

How Did We Get Here?

Although Vietnam may be and often is seen as a shameful episode in our history, it is clear that we are now repeating that history. Yale Law Professor Harold H. Koh wrote in 1990 about the Iran-Contra Affair:

“If the Iran-contra committees had looked past Watergate to the Vietnam era, they would have seen that the Iran-contra affair was only the tip of a much larger iceberg that crystallized during the Vietnam War. All of the congressional-executive struggles that surrounded the affair merely replicated battles that transpired during that earlier period. That history should have repeated itself across so many spheres of foreign affairs, even after Congress has passed so many statutes to avoid repetition of the Vietnam-era evasions, suggests that the Iran-contra affair exposed systemic, rather than localized, problems in the American foreign-policy process.”

According to Koh, executive seizure of the initiative in foreign affairs can be said to arise from the fact that under our Constitution, the president may more easily do so than may Congress. Koh notes that, beginning with President Franklin Roosevelt’s initiation of “extrovert” foreign policy, “[a]n entire generation of Americans grew up and came to power believing in the wisdom of the muscular presidential leadership of foreign policy.”

“Yet,” Koh notes, “Vietnam caused an entire generation to rethink its attitude toward foreign policy. National elites became less willing to intervene to defend other nations and to bear the costs of world leadership.” “Why, then, have presidential initiatives not only continued, but appeared to accelerate, during the post-Vietnam era?” Koh believes that “America’s declining role as world hegemon has forced changes in the postwar structure of international institutions, which have in turn stimulated further presidential initiatives.”

A shift has also taken place in the public mind. “The rise of new and unanticipated problems not subject to the control of any nation-state, such as global terrorism and the debt crisis, have increasingly forced the United States into a reactive international posture. Given the president’s superior institutional capacity to initiate governmental action, the burden of generating reactive responses to external challenges has almost invariably fallen on him.” According to Koh, “[t]he same public opinion that has empowered the plebiscitary president has simultaneously subjected him to almost irresistible pressures to act quickly in times of real or imagined crisis.” Koh attributed what he saw in 1990 as “the recent wave of treaty breaking and bending” as a reflection of a “reactive presidential role in leading both America’s flight from international organizations and its movement toward alternative mechanisms of multilateral cooperation.”

Koh cites “President Reagan’s use of short-term military strikes and emergency economic powers (to respond to terrorism); longer-term military commitments in Lebanon and the Persian Gulf (to respond to requests for peacekeeping); arms sales (to respond to military tensions in the Middle East); and covert actions (to effectuate neo-containment policies in Central America and Angola) [as reflections of] the modern American perception that crisis situations uniquely demand a presidential response.”

Whatever the reasons for “presidential initiative,” it is clear that such initiative is at the bottom of the abuses found behind the present detentions of combatants. It is clear that, whether or not we should require presidents rather than Congress to be responsible for creating and carrying out foreign policy, the President now is responsible for those things and thus cannot claim both to lead the nation and simultaneously evade responsibility for the egregious acts of subordinates who follow his policies. Having issued orders that intentionally evade and violate the central international laws relating to detention and status determination of belligerents, having sanctioned indefinite detentions and interrogations that violate those same laws, which ultimately led to torture and murder committed by soldiers and military intelligence personnel, the President and his advisers are ultimately responsible for the consequences of those violations. They may not evade such responsibility merely by stating that laws do not apply, or as Charles B. Gittings of the Project to Enforce the Geneva Conventions put it recently in an amicus curiae brief in the Guantanamo Bay Detainee Cases, they may not “commit war crimes with impunity [simply] because they are responsible for enforcing the laws.”

We have reached a critical point in our history, a point which has ramifications as far-reaching as the Civil War or World War II.

This is is a considerably shorted version of an article (without the footnotes) by Jennifer van Bergen and Douglas Valentine in the Case Western Reserve Journal of Internatiomal Law, Vol. 37, nos 2 and 3, 2006. The original, with footnotes and appendices, may be viewed at: www.jvbline.org/dangerousworld.pdf.

Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004) and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007). She can be reached at jvbxyz@earthlink.net.

Douglas Valentine is the author of four books, including The Phoneix Program, which are available at his websites http://www.members.authorsguild.net/valentine/ and http://www.douglasvalentine.com/index.html