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The L.A. Times' Recent War Crimes Reporting: Does It Say What They Claim It Says?

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On August 6, 2006 the Los Angeles Times published a lengthy report on war crimes investigations conducted by the United States Army during the Vietnam War era. And, in late January and early February of 1971, the VVAW held its Winter Soldier Investigation in Detroit. Its product was used by John Kerry to validate his infamous testimony before the Senate Foreign Relations Committee in April of that year.

What new insight into the Winter Soldier Investigation does this so-called "new information," as reported by the Times, provide?

We do know from available sources that all of the Winter Soldier Investigation witnesses' allegations were investigated, or, more exactly, were considered for "probable cause" for criminal action, by the U.S military. These investigations depended on the cooperation of the Winter Soldier witnesses with the Army CID (Criminal Investigation Division) and the NCIS (Navy Criminal Investigative Service, later known as the NIS, or Naval Investigative Service). Besides the witnesses' cooperation, the extent of these investigations also depended upon the credibility of the stories told in Detroit.

We know the Army CID declined to investigate a significant percentage of the allegations. The allegations of only 43 of the 76 witnesses in Detroit who claimed to be Army veterans, according to transcripts in The Congressional Record, were pursued by the CID chief at the time, Col. Henry H. Tufts. A large number of allegations, 33, was dismissed because they were either too preposterous, or because they did not actually allege any criminal violations. Things like "racist attitudes" supposedly prevalent in Vietnam, could not be quantified, proven, or prosecuted . . . but they nonetheless made powerful propaganda, because they were not within the purview of criminal investigators to challenge.

According to the National Archives, freelance reporter Nick Turse had free access to the entire War Crimes Working Group files before anyone at the Archives realized these documents should have been redacted for privacy data in accordance with a Federal Law, the Privacy Act of 1974. The Times article makes a deliberate attempt to create the impression that "the government" (which, granted, the nefarious National Archives is a part of) ordered a belated and unjustified national security withdrawal of previously open files, implying a cover-up. This is exactly opposite to the facts. The National Archives would be happy to let anyone look at this collection in its entirety, in raw form, if it legally could. Instead, the overworked and very limited Archives staff has to undertake a massive, page-by-page, hands-on editing chore. The only bar to full access is a privacy law which requires all personal identifying information to be deleted from all government documents prior to their public release.

It is interesting that the Los Angeles Times does not reveal the incomplete scope of the documents available to it. Did freelance reporter Turse fail to tell the Times' editors of the limited nature of the source documents for his exclusive "scoop?" There are roughly 25,000 pages in the War Crimes Working Group collection at the National Archives, and the Times reports access to less than 40% of the total amount of documents (9,000 pages), of which only 12% (3,000 pages) were copied, before access to this collection was shut down.

It is also worth noting how the Times creates ominous implications about the final outcomes of these investigations, implications which would appear quite different if we were told that the records sourcing this story are incomplete; statements such as, "The records do not say whether the writer [of a soldier's letter to General Westmoreland, concerning alleged war crimes] was located, and there is no evidence in the files that his complaint was investigated further." And such as this statement, concerning the outcome of the article's central case, the Henry allegation, "The War Crimes Working Group records give no indication that action was taken against any of the men named in the report." No indication, that is, in the fraction of the documents examined by the Times, or in the even smaller fraction of the total collection of which it has actual copies.

By depicting James Henry's Winter Soldier Investigation testimony as "substantiated" by the Army's official War Crimes Working Group, the Times attempts to bestow credibility on the entire Winter Soldier Investigation, - but this intellectually dishonest attempt must be seen for what it is: a grossly inappropriate exaggeration, because it is a generalization from just one case.

It is also important to note that by referring to these documents as "a once-secret archive" and in other ways creating the false implication that these records were, and are, being deliberately hidden away in some exceptional government conspiracy of unaccountability, the Times knowingly misrepresents that these documents were, and are, covered by the same government policy as almost all other routine records of internal military operations, regardless of their nature.

These documents were classified neither "Top Secret," "Secret" nor "Confidential." The War Crimes Working Group documents, strictly speaking, were not "classified" at all, but carried the administrative restriction "For Official Use Only," a much less restrictive access designation, but one which would prevent access by news media and historical researchers, until the expiration period mandated by law, as the Times admits, very late in the article: "The records were declassified in 1994, after 20 years as required by law, and moved to the National Archives in College Park, Md., where they went largely unnoticed."

According to Texas A&M University's "Employees' Guide to Security Responsibilities:"

"For Official Use Only (FOUO) is a document designation, not a classification. This designation is used by Department of Defense and a number of other federal agencies to identify information or material which, although unclassified, may not be appropriate for public release."

So, the current access status of these documents is controlled by privacy laws administered by the National Archives, and never was controlled by any self-serving, or unusual national security concern created by any political or policy making agency, as implied by the Times.

It is noteworthy that the Times would devote so much prominent space to this particular old news at this particular time, and in such misrepresented ways. Turse first saw this collection in 2002, and first published his findings in The Village Voice nearly two years ago. There is a stated attempt to create a Vietnam-Iraq connection, and an unstated attempt to produce (or bolster) the same kind of public opinion outcome for the Iraq war as was done for the Vietnam War, which outcome was a disaster for Vietnam, then and now, and for the United States, then and ever since; and, an outcome that was damaging to the national security interests of the United States of America then, and would be again, now. An outcome largely denied (in the psychiatric sense) by the Left in this country. This story arrives just in time to bolster anti-war sentiment for the 2006 Congressional elections, and to pre-sanitize a history that contains a dangerous vulnerability for the re-emerging Presidential ambitions of the recent Democratic nominee for President.

What America's enemies in the 1970s and now, both foreign and domestic, knew about all wars, and what they sought to exploit through their Winter Soldier Investigation, was that such criminal events do happen in all wars, whether they be individual acts, or group acts which could appropriately be called "war crimes." And what they try to evade is the fact that not all crimes committed by individual soldiers in war zones are properly designated as "war crimes." So, what they needed was a mechanism to create the impression that such acts were of the very essence of this particular war, of our country's character, and of its military culture. Cases investigated and prosecuted by the military itself would not make that case, but, on the contrary, would undermine it, because the military could not be both institutionally responsible for atrocious conduct on the battlefield, and simultaneously be taking legal steps to investigate, punish and stop such conduct. So, the "anti" movement had to have its own war crimes vehicle, whose outcome could be manipulated to create a predetermined public relations effect . . . thus the Winter Soldier Investigation, which was a clone of numerous like tribunals in Europe, which were organized and funded by Soviet intelligence fronts and operatives, starting in the early 1960s.

It is ironic that now, thirty five years later, the official Army investigation, which the "Winter Soldiers" felt they had to pre-empt, obstruct and bypass in the 1970s, is now being used to bolster their besieged credibility, presumably on behalf of the once-and-future tarnished candidacy of their former primary spokesman.

The complaint of the VVAW, echoed in this story, that no one paid much attention to their Winter Soldier Investigation, was always somewhat amazing. By any journalistic or legal standard of that time, the Winter Soldier Investigation "testimony" was not anything that could be published as fact. Such mishmashes of mostly uncorroborated rumor, hearsay, hyperbole, etc., could not be responsibly published in the 1970s, and the contamination of some allegations, that had the appearance of credibility, by those that were self-evidently preposterous, created an almost impossible tangle for any military, legal or journalistic investigator. This was probably an intentional component of the Winter Soldier Investigation, preventing its easy delegitimization by maximizing its internal inconsistencies, consistent with Marxist disinformation doctrine. However, such 1970's-style journalistic restraints of decency, judgment and fairness, not to mention full disclosure of source limitations, no longer seem to inhibit journalists, even at our once most respected media outlets.

Nonetheless, our military branches did in fact investigate all such allegations, to the extent indicated by the available facts, and to the extent possible at the time.

The Times' version of the outcomes of these investigations is very interesting in itself. While the article begins by stating that "The documents detail 320 alleged incidents that were substantiated (emphasis added) by Army investigators . . ." it later states, "Investigators determined that evidence against 203 soldiers accused of harming Vietnamese civilians or prisoners was strong enough to warrant formal charges. These 'founded' cases were referred to the soldiers' superiors for action."

So, there is a difference between what the article claims are "substantiated cases" and cases that are actually [well] "founded." And that difference is: 320 - 203 = 117. Thus, of the 320 "substantiated" cases, 117 were not so "substantiated" after all. And then, finally, the Times tells us that, "Ultimately, 57 of them were court-martialed and just 23 convicted, the records show."

Of the 320 "substantiated" cases, only 203 were "founded" and of these, only 57 court-martials resulted, with only 23 convictions - in 12 years of war that involved over 2.5 million troops. So this new math somehow converts 23 legal convictions into 320 "substantiated" cases. And this story converts the good faith, real-time efforts of our best military police and legal authorities into a second-guessed, 35-years-late splash of innuendo and misrepresentation.

And, are all of these cases actually "war crimes," implicating the whole government and its entire military, or are any of these cases just the aberrant criminal acts of individuals, apt to occur in any such large population of young males armed with deadly weapons and living in a violent environment? The Times does not care to reveal if it found the distinction, nor does it care to encourage us to think that there may be such a distinction revealed in these documents.

So just what, exactly, does "substantiated" mean in this context? Army investigators were not empowered to "substantiate" any allegation, and the fact that there was an investigation in any given case does not substantiate the allegation behind it. All of the following are inter-related terms used in these documents: were these 320 "alleged incidents" merely "allegations" 1) " . . . which may (or may not) 'warrant investigation' . . .;" or, 2) were they actually "investigated;" or, 3) were they "investigated" and found to be "credible" (or not); or, 4) were they then finally "prosecuted" and did that result in: a) "convictions;" or, b) other exonerating outcomes? Because only outcome 4a is actually a "substantiated allegation" under our Constitution and legal system; but not under the Times' rubric of fair and factual reporting.

All secondary media reports of this story treat the 320 cases as confirmed events, just as the Times would have expected. This is the power of propaganda.

The real issue is a political one, both thirty-five years ago and now. It seems abundantly clear now that the Winter Soldier Investigation was a manufactured attempt to exploit a limited number of presumed likely, but for the most part factually unknown events, in order to create propaganda to effect the outcome of the war, and to directly compromise the morale, credibility and moral position of the United States, its people and its military. The real issue is not what happened in Vietnam during the war, but what was done in Detroit in early 1971.

It is telling that, of all these documented cases, only one allegation repeated at the Winter Soldier Investigation can, so far, be reported as conditionally "verified." Except that the legal outcome of even that one investigation is unknown to the Times, as it admits in its story. What the Times does not admit is that its trove of source documents is incomplete, and lacking another 16,000 extant but unavailable pages which may, or may not, provide a different conclusion for even this one case; because allowing the possibility of such other conclusion would be inconvenient to the agenda of the Los Angeles Times and its propagandist turned "freelance reporter," Nick Turse.

There has been a debate and counter debate for thirty-five years that can be summed up in these two competing questions: "How many Winter Soldier Investigation witnesses have been proven to be fraudulent? How many have been proven to be truthful?"

What this Times story provides is a fairly good preliminary answer to that debate.

How many Winter Soldier witnesses have been proven to be truthful?

The answer is, so far, "only one." Yet even that answer is still provisional, subject to further revelations from official documents yet to be opened to public view.

But you'd never know that from reading the Los Angeles Times.

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John Boyle
19th Combat Engineers
RVN 11/66 - 2/68


Last Updated Thursday, April 19 2007 @ 12:58 PM MDT; 5,320 Hits View Printable Version