The Trial of Henry Kissinger (5 page)

Nobody has the figures for Cambodian deaths. The casualties were pointless because the ship's company of the
Mayaguez
were nowhere on Koh Tang, having been released some hours earlier. A subsequent congressional inquiry found that Kissinger could have known of this by listening to Cambodian Broadcasting or by paying attention to a third-party government which had been negotiating a deal for the restitution of the crew and the ship. It was not as if any Cambodians doubted, by that month of 1975, the willingness of the US

government to employ deadly force.

In Washington, DC, there is a famous and hallowed memorial to the American dead of the Vietnam War. Known as the Vietnam Veterans' Memorial, it bears a name that is slightly misleading. I was present for the extremely affecting moment of its dedication in 1982, and noticed that the list of nearly 60,000 names is incised in the wall not by alphabet but by date.

The first few names appear in 1954, and the last few in 1975. The more historically minded visitors can sometimes be heard to say that they didn't know the United States was engaged in Vietnam as early or as late as that. Nor were the public supposed to know. The first names are of the covert operatives sent in by Colonel Lansdale without congressional approval to support French colonialism before Dien Bien Phu. The last names are of those thrown away in the
Mayaguez
fiasco. It took Henry Kissinger to ensure that a war of atrocity, which he had helped prolong, should end as furtively and ignominiously as it had begun.

3

A SAMPLE OF CASES:

KISSINGER'S WAR CRIMES IN INDOCHINA

SOME STATEMENTS ARE
too blunt for everyday, consensual discourse. In national

"debate," it is the smoother pebbles that are customarily gathered from the stream, and used as projectiles. They leave less of a scar, even when they hit. Occasionally, however, a single hard-edged remark will inflict a deep and jagged wound, a gash so ugly that it must be cauterized at once. In January 1971, General Telford Taylor, who had been chief prosecuting counsel at the Nuremberg trials, made a considered statement. Reviewing the legal and moral basis of those hearings, and also the Tokyo trials of Japanese war criminals and the Manila trial of Emperor Hirohito's chief militarist, General Tomoyuki Yamashita, Taylor said that if the standards of Nuremberg and Manila were applied evenly, and applied to the American statesmen and bureaucrats who designed the war in Vietnam, then "there would be a very strong possibility that they would come to the same end he [Yamashita] did." It is not every day that a senior American soldier and jurist delivers the opinion that a large portion of his country's political class should probably be hooded and blindfolded and dropped through a trapdoor on the end of a rope.

In his book
Nuremberg and Vietnam
, General Taylor also anticipated one of the possible objections to this legal and moral conclusion. It might be argued for the defense, he said, that those arraigned did not really know what they were doing; in other words had achieved the foulest results but from the highest and most innocent motives. The notion of Indochina as some
Heart of Darkness
"quagmire" of ignorant armies has been sedulously propagated, then and since, but Taylor had no patience with such a view. American military and intelligence and economic and political missions and teams had been in Vietnam, he wrote, for much too long to attribute anything they did "to lack of information." It might have been possible for soldiers and diplomats to pose as innocents until the middle of the 1960s, but after that time, and especially after the My Lai massacre of 16 March 1968, when serving veterans reported to their superior officers a number of major atrocities, nobody could reasonably claim to have been uninformed and of those who could, the least believable would be those who - far from the confusion of battle - read and discussed and approved the panoptic reports of the war that were delivered to Washington.

General Taylor's book was being written while many of the most reprehensible events of the Indochina war were still taking place, or were still to come. He was unaware of the intensity and extent of, for example, the bombing of Laos and Cambodia. However, enough was known about the conduct of the war, and about the existing matrix of legal and criminal responsibility, for him to arrive at some indisputable conclusions. The first of these concerned the particular obligation of the United States to be aware of, and to respect, the Nuremberg principles:

Military courts and commissions have customarily rendered their judgments stark and unsupported by opinions giving the reason for their decision. The Nuremberg and Tokyo judgments, in contrast, were all based on extensive opinions detailing the evidence and analyzing the factual and legal issues, in the fashion of appellate tribunals generally. Needless to say they were not of uniform quality, and often reflected the logical shortcomings of compromise, the marks of which commonly mar the opinions of multi-member tribunals.

But the process was
professional
in a way seldom achieved in military courts, and the records and judgments in these trials provided a much-needed foundation for a corpus of judge-made international penal law. The results of the trials commended themselves to the newly-formed United Nations, and on December 11, 1946, the General Assembly adopted a resolution affirming

"the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal."

However history may ultimately assess the wisdom or unwisdom of the war crimes trials, one thing is indisputable. At their conclusion, the United States Government stood legally, politically and morally committed to the principles enunciated in the charters and judgments of the tribunals. The President of the United States, on the recommendations of the Departments of State, War and Justice, approved the war crimes programs. Thirty or more American judges, drawn from the appellate benches of the states from Massachusetts to Oregon, and Minnesota to Georgia, conducted the later Nuremberg trials and wrote the opinions. General Douglas MacArthur, under authority of the Far Eastern Commission, established the Tokyo tribunal and confirmed the sentences it imposed, and it was under his authority as the highest American military officer in the Far East that the Yamashita and other such proceedings were held. The United States delegation to the United Nations presented the resolution by which the General Assembly endorsed the Nuremberg principles. Thus the integrity of the nation is staked on those principles, and today the question is how they apply to our conduct of the war in Vietnam, and whether the United States Government is prepared to face the consequences of their application.

Facing and cogitating these consequences himself, General Telford Taylor took issue with another United States officer, Colonel William Corson, who had written that "Regardless of the outcome of... the My Lai courts-martial and other legal actions, the point remains that American judgment as to the effective prosecution of the war was faulty from beginning to end and that the atrocities, alleged or otherwise, are a result of failure of judgment, not criminal behavior." To this Telford responded thus:

Colonel Corson overlooks, I fear, that negligent homicide is generally a crime of bad judgment rather than evil intent. Perhaps he is right in the strictly causal sense that if there had been no failure of judgment, the occasion for criminal conduct would not have arisen. The Germans in occupied Europe made gross errors of judgment which no doubt created the conditions in which the slaughter of the inhabitants of Klissura [a Greek village annihilated during the Occupation] occurred, but that did not make the killings any the less criminal.

Referring this question to the chain of command in the field, General Taylor noted further that the senior officer corps had been:

more or less constantly in Vietnam, and splendidly equipped with helicopters and other aircraft, which gave them a degree of mobility unprecedented in earlier wars, and consequently endowed them with every opportunity to keep the course of the fighting and its consequences under close and constant observation. Communications were generally rapid and efficient, so that the flow of information and orders was unimpeded.

These circumstances are in sharp contrast to those that confronted General Yamashita in 1944 and 1945, with his troops reeling back in disarray before the oncoming American military powerhouse. For failure to control his troops so as to prevent the atrocities they committed, Brigadier Generals Egbert F. Bullene and Morris Handwerk and Major Generals James A.

Lester, Leo Donovan and Russel B. Reynolds found him guilty of violating the laws of war and sentenced him to death by hanging.

Nor did General Taylor omit the crucial link between the military command and its political supervision; this was again a much closer and more immediate relation in the American-Vietnamese instance than in the Japanese-Filipino one, as the regular contact between, say, General Creighton Abrams and Henry Kissinger makes clear: How much the President and his close advisors in the White House, Pentagon and Foggy Bottom knew about the volume and cause of civilian casualties in Vietnam, and the physical devastation of the countryside, is speculative. Something was known, for the late John Naughton (then Assistant Secretary of Defense) returned from the White House one day in 1967 with the message that "We seem to be proceeding on the assumption that the way to eradicate the Vietcong is to destroy all the village structures, defoliate all the jungles, and then cover the entire surface of South Vietnam with asphalt."

This remark had been reported (by Townsend Hoopes, a political antagonist of General Taylor) before that metaphor had been extended into two new countries, Laos and Cambodia, without a declaration of war, a notification to Congress, or a warning to civilians to evacuate.

But Taylor anticipated the Kissinger case in many ways when he recalled the trial of the Japanese statesman Koki Hirota:

who served briefly as Prime Minister and for several years as Foreign Minister between 1933 and May 1938, after which he held no office whatever.

The so-called "Rape of Nanking" by Japanese forces occurred during the winter of 1937-38, when Hirota was Foreign Minister. Upon receiving early reports of the atrocities, he demanded and received assurances from the War Ministry that they would be stopped. But they continued, and the Tokyo tribunal found Hirota guilty because he was "derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities," and "was content to rely on assurances which he knew were not being implemented." On this basis, coupled with his conviction on the aggressive war charge, Hirota was sentenced to be hanged.

Melvin Laird, as Secretary of Defense during the first Nixon administration, was queasy enough about the early bombings of Cambodia, and dubious enough about the legality or prudence of the intervention, to send a memo to the Joint Chiefs of Staff, asking, "Are steps being taken, on a continuing basis, to minimize the risk of striking Cambodian peoples and structures. If so, what are the steps? Are we reasonably sure such steps are effective." There is no evidence of Henry Kissinger, as National Security Advisor or Secretary of State, ever seeking even such modest assurances. Indeed, there is much evidence of his deceiving Congress about the true extent to which such assurances as were offered were deliberately false. Others involved, like Robert McNamara, McGeorge Bundy and William Colby, have since offered varieties of apology or contrition or at least explanation: Henry Kissinger never.

General Taylor described the practise of air strikes against hamlets suspected of "harboring"

Vietnamese guerrillas as "flagrant violations of the Geneva Convention on Civilian Protection, which prohibits 'collective penalties' and 'reprisals against protected persons' and equally in violation of the Rules of Land Warfare." He was writing before this atrocious precedent had been extended to "reprisal raids" that treated two whole countries - Laos and Cambodia - as if they were disposable hamlets.

For Henry Kissinger, no great believer in the boastful claims of the war-makers in the first place, a special degree of responsibility attaches. Not only did he have good reason to know that field commanders were exaggerating successes and claiming all dead bodies as enemy soldiers - a commonplace piece of knowledge after the spring of 1968 - but he also knew that the issue of the war had been settled politically and diplomatically, for all intents and purposes, before he became National Security Advisor. Thus he had to know that every additional casualty, on either side, was not just a death but an avoidable death. And with this knowledge, and with a strong sense of the domestic and personal political profit, he urged the expansion of the war into two neutral countries - violating international law - while persisting in a breathtakingly high level of attrition in Vietnam itself.

From a huge range of possible examples, I have chosen cases which involve Kissinger directly and in which I have myself been able to interview surviving witnesses. The first, as foreshadowed above, is Operation Speedy Express.

My friend and colleague Kevin Buckley, then a much-admired correspondent and Saigon bureau chief for
Newsweek
, became interested in the "pacification" campaign which bore this breezy code name. Designed in the closing days of the Johnson-Humphrey administration, it was put into full effect in the first six months of 1969, when Henry Kissinger had assumed much authority over the conduct of the war. The objective was the disciplining, on behalf of the Thieu government, of the turbulent Mekong Delta province of Kien Hoa.

On 22 January 1968, Defense Secretary Robert McNamara had told the Senate that "no regular North Vietnamese units" were deployed in the Mekong Delta, and no military intelligence documents have surfaced to undermine his claim, so that the cleansing of the area cannot be understood as part of the general argument about resisting Hanoi's unsleeping will to conquest. The announced purpose of the Ninth Division's sweep, indeed, was to redeem many thousands of villagers from political control by the National Liberation Front (NLF) or Viet Cong (VC). As Buckley found, and as his magazine
Newsweek
partially disclosed at the rather late date of 19 June 1972: