US News & World Report: The War Over War Crimes in Vietnam

Dan Gilgoff, in US News & World Report (Sept. 6, 2004):

... Claiming that they killed for sport and cut the ears off Viet Cong, the Winter Soldier vets gave testimony that is difficult to prove. "There was this feeling that you had to shock the country into paying attention," says David Thorne, who attended Winter Soldier with Kerry."You wondered whether some [of the vets] were who they said they were." But in Home to War , Kerry told historian Gerald Nicosia that the vets' testimonials were "shattering . . . you could cut through what was bull and what wasn't." O'Neill says most of those who testified were frauds, noting that they declined to cooperate with the Naval Investigative Service and that one, Al Hubbard, was later found to be lying about his Vietnam service.

Kerry appeared on Meet the Press less than three months after Winter Soldier and testified before the Foreign Relations Committee later that same week. (He debated O'Neill, who'd been handpicked to defend Vietnam by the Nixon administration, on the Dick Cavett Show that June.) Some of Kerry's testimony summarized what he'd heard in Detroit, but many Vietnam experts say that even Kerry's more egregious charges before the committee--for example, that soldiers had taped "wires from portable telephones to human genitals and turned up the power" --are backed by accounts of other vets and by military documents. "The wiring of guys to field telephones was routine" in the course of interrogations, says Karnow, who covered Vietnam for the Washington Post . A Pulitzer Prize-winning series in the Toledo Blade last year found that one elite Army unit slaughtered more than 100 civilians in 1967, taking scalps and ears as souvenirs. An Army investigation in the 1970s found 18 of the so-called Tiger Force soldiers had committed war crimes, but the probe was terminated before anyone was charged.

While the Army court-martialed at least 200 soldiers for serious offenses against the Vietnamese, a Columbia University Ph.D. candidate who is cataloging atrocities committed in Vietnam says hundreds of other Army investigations produced few courts-martial. "Other than issuing and reissuing regulations," says Nick Turse, who plans to defend his dissertation next spring, "there was no initiative to stop atrocities occurring on a regular basis."

Almost all of Kerry's public statements in 1971 attempted to show that U.S. policies in Vietnam were atrocities in themselves. Many Vietnam scholars agree. "There was a policy directive that said, 'Don't burn down villages,' but it was a pious law," says Edwin Moise, author of Tonkin Gulf and the Escalation of the Vietnam War . "The real policy endorsed burning down villages. The shelling of some villages was so commonplace that people no longer lived there." Kerry especially loathed Vietnam's free-fire zones, where any humans could be considered an enemy threat and where soldiers were exempted from getting command clearance to fire. "[T]he men who designed the free-fire zone . . . are war criminals," Kerry said on Meet the Press shortly before his Senate appearance.

While there is wide agreement that free-fire zones and the use of napalm unleashed frequent atrocities on civilians--estimates of civilian deaths in Vietnam begin at 500,000--there is debate over whether those policies constituted war crimes. Kerry backed away from the phrase earlier this year, calling it "excessive." But he stood by the substance of his 1971 allegations: "There were policies in place that were not acceptable according to the laws of warfare . . . I'm not going to walk away from that." Because international law deals largely with civilians--who, in Vietnam, were interspersed with and often indistinguishable from guerrilla VC troops--the war crimes issue is murky. "People think it's only a war crime if it's on the level of the Bataan Death March," says the University of Michigan Law School's Steven Ratner. But in combat, a simple "failure to distinguish between civilians and combatants is a violation of the laws of war."