Vietnam War(redirected from The War and U.S. Law)
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The Vietnam War was a 20-year conflict in Southeast Asia (1955–1975) between the government of South Vietnam and the Communist government of North Vietnam. The North Vietnamese sought the reunification of the two countries under its form of rule. The United States, determined to prevent Communist aggression, supported the government of South Vietnam and in the early 1960s became increasingly involved militarily in the conflict. By 1965 U.S. involvement had escalated, and U.S. armed forces had been introduced. Opposition to the war in the United States grew steadily, resulting in one of the most divisive periods in U.S. history. The United States ultimately withdrew its forces in 1973. Within two years the North Vietnamese defeated the South Vietnamese armed forces and took control of the country.
Westmoreland v. Columbia Broadcasting System, Inc.
On January 23, 1982, CBS television broadcast a 90-minute documentary entitled The Uncounted Enemy: A Vietnam Deception. The program was produced by George Crile and based in large part on the reporting of Sam Adams, a Pentagon analyst who had acted as a CBS consultant for the program. Mike Wallace from 60 Minuteswas the narrator. He also conducted some of the interviews.
The documentary reported charges by a number of U.S. Army and Central Intelligence Agency (CIA) intelligence sources, who claimed that prior to the surprise North Vietnamese-Viet Cong led Tet Offensive in January 1968, the U.S. Military Assistance Command in Vietnam, also known as MACV, conspired to mislead President lyndon b. johnson, the American public, and the rest of the military about the enemy's actual strength. The witnesses interviewed for the documentary stated that MACV carried out this deception to make it appear that progress was being made in winning the war of attrition against enemy forces, that the war could be won, and that there was "some light at the end of the tunnel" in what was the longest war in U.S. history.
The documentary made clear that not only was MACV under the control and command of General William C. Westmoreland but that the conspiracy to understate enemy troop strength was carried out at least with Westmoreland's knowledge, Acquiescence, and tacit approval. The documentary then charged that the Tet Offensive might have been less surprising and demoralizing had MACV been providing accurate information. Since many historians and military experts consider the Tet Offensive to be the war's final turning point, the documentary suggested that Westmoreland played a significant role in the U.S. defeat in Vietnam.
In the preface to the broadcast, correspondent Mike Wallace stated: "The fact is that we Americans were misinformed about the nature and the size of the enemy we were facing, and tonight we're going to present evidence of what we have come to believe was a conscious effort—indeed, a conspiracy at the highest levels of American military intelligence—to suppress and alter critical intelligence of the enemy in the year leading up to the Tet Offensive."
Three days later, General Westmoreland held a press conference attended by former CIA special assistant George Carver, former senior CIA officials, a former ambassador to Vietnam, and some of the general's principal intelligence people during the war. Westmoreland and his supporters denounced the program as filled with lies, distortions, fraudulent statements that constituted a hoax on the public. Westmoreland and the others criticized the documentary on four grounds. They alleged that (1) one of the interviews had been rehearsed; (2) one of the witnesses was interviewed after being allowed to see the interviews of the other witnesses; (3) there was insufficient notice to General Westmoreland of the scope of his interview; and (4) certain answers were improperly spliced and edited.
CBS News decided to conduct an internal investigation, appointing senior editor Burton Benjamin to coordinate it. On July 7, 1982, Benjamin submitted his findings to Van Gordon Sauter, the president of CBS News. Eight days later Sauter issued a statement expressing regret that the documentary had failed to comply with certain journalistic standards ordinarily followed by CBS. However, Sauter emphasized that the program contained no falsehoods or distortions of the truth. In September, CBS offered to General Westmoreland 15 minutes of unedited airtime to respond to the documentary, which was to be followed by a 45 minute panel discussion about the criticisms and merits of the broadcast. The general declined the offer.
On September 13, 1982, Westmoreland filed a $120 million lawsuit against CBS, alleging that the Vietnam documentary had made 16 libelous statements against him. But statements that accused the general of having conspired to understate enemy troop strength constituted the centerpiece of the lawsuit. Although Westmoreland filed the lawsuit in his home state of South Carolina, CBS successfully moved the case to a federal district court in New York for trial. Westmoreland's suit was funded in part by the Capital Legal Foundation, a conservative think tank headed by Dan Burt, who also served as the general's lawyer. CBS was represented by the law firm of Cravath, Swaine, & Moore.Discovery began immediately and continued for a year and a half. Hundreds of witnesses were interviewed and deposed throughout the country and the world. It was an exhaustive preparation for both sides. In the summer of 1984, the defense moved for Summary Judgment. Its memorandum of law ran just under 400 pages—not including volumes of exhibits. On September 24, 1984, Judge Pierre Leval denied the motion, concluding that the complaint contained several triable issues for the jury. Leval said it was the jury's province to determine whether certain statements of fact contained in the documentary were true, and, if proven to be false, whether they were made with "actual malice," the two lynch-pins of any libel case involving a public figure.
The case came to trial on October 9, 1984, and concluded on February 17, 1985. Just as the case was about to go to the jury, the two sides settled their differences, each side claiming it had proven its major points. As part of the settlement, CBS agreed to issue the following written statement: "CBS respects General Westmoreland's long and faithful service to his country and never intended to assert, and does not believe, that General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." CBS then conducted a second internal investigation over the matter. This time it found that the program was "seriously flawed" and out of balance. It admitted that "conspiracy" had not been proven, friendly witnesses had been coddled, and those opposing the program's thesis were treated harshly. Despite these findings, Mike Wallace stood by the program.
Perhaps no other libel case in the twentieth century attained the celebrity of Westmoreland's libel suit. Born in Spartanburg County, South Carolina, and a 1936 graduate of West Point, General Westmore-land gained a reputation for superb staff work and sound battle leadership during World War II, in which he participated in the North Africa, Sicily, and Normandy campaigns. He served as commander of U.S. forces in Vietnam from June of 1964 until June of 1968 and was the primary advocate for escalating U.S. troop involvement in South Vietnam during that period. He was Timemagazine's Man of the Year for 1965.
Adler, Renata. 1988. Reckless Disregard: Westmoreland v. CBS et al., Sharon v. Time. New York: Vintage Books.
Brewin, Bob. 1987. Vietnam on Trial: Westmoreland vs. CBS. New York: Atheneum.
Roth, M. Patricia. 1986. The Juror and the General. New York: Morrow.
The War in Vietnam
During World War II, the Viet Minh, a nationalist party seeking an end to French colonial rule of Vietnam, was organized. After the defeat of the Japanese and their withdrawal from what was then known as French Indochina, the Viet Minh, under the leadership of Ho Chi Minh, formally declared independence. France refused to recognize Vietnamese independence, and war broke out between the French and the Viet Minh. In 1954 the French withdrew after suffering a devastating defeat at the Battle of Dien Bien Phu.
After the French withdrawal, participants at an international conference in Geneva, Switzerland, divided Vietnam at the 17th parallel. The Viet Minh were given control of the north, which became known as North Vietnam, while the non-Communist southern half became South Vietnam. The South Vietnamese government was headed by Prime Minister Ngo Dinh Diem, who refused to allow free elections on reunification in 1956 as agreed by the Geneva Accords. Diem rightly feared that Ho Chi Minh and the Communists would win the election. The United States supported Diem's defiance, which led the North Vietnamese to seek unification through military force.
The Diem regime, which soon proved to be corrupt and ineffective, had difficulty fighting the Viet Cong, a South Vietnamese army of guerrilla soldiers who were trained and armed by the North Vietnamese. The Viet Cong became part of the National Liberation Front (NLF), a Communist-backed insurgent organization. In 1961 President john f. kennedy began to send more U.S. military advisers to South Vietnam, and by the end of 1962, their number had risen from 900 to 11,000. Kennedy,
|Vietnam War Timeline|
|source: Dupuy, R. Ernest and Trevor N. Dupuy, Harper Encyclopedia of Military History. New York Public Library's Book of Chronologies.|
|1954||French Indochina War ends with French defeat at Dien Bien Phu.|
|1955||United States agrees to help train South Vietnamese army.|
|1956||President Eisenhower announces first U.S. advisers sent to Vietnam.|
|1957||North Vietnamese guerrilla (Vietcong) activity directed against South Vietnam begins.|
|1959||First U.S. military advisers killed in Vietcong attack.|
|1961||President Kennedy agrees to increase 685-member military advisory group and to arm and supply 20,000 South Vietnamese troops (June 16); first U.S. aircraft carrier arrives off Vietnam with armed helicopters to aid the South Vietnamese army.|
|1962||President Kennedy states that U.S. military advisers in Vietnam will return fire if fired pon. U.S. noncombat troops number 12,000 by year's end.|
|1963||South Vietnam president Ngo Dinh Diem assassinated (Nov. 2).|
|1964||North Vietnamese patrol boats attack U.S. destroyers in the Gulf of Tonkin. U.S. Congress passes resolution (Aug. 7) that President Johnson uses as basis for later U.S. troop buildup in Vietnam. United States announces massive aid increase to counter Hanoi's support of Vietcong (Dec. 11).|
|1965||First U.S. air attacks in North Vietnam begin (Feb. 24); first major deployment of U.S. ground troops (March 7–9). U.S. troops number 184,300 at year's end.|
|1966||Bombing of Hanoi begins (June 29). U.S. troops number 389,000 at year's end.|
|1967||U.S. troops number 480,000 at year's end.|
|1968||"Tet" offensive by North Vietnamese (Jan. 30 to Feb. 29); My Lai massacre by U.S. troops (March 16). Start of Paris peace talks.|
|1969||U.S. troop deployment reaches highest point of the war in April: 543,000. President Nixon begins U.S. troop withdrawal on May 14.|
|1970||U.S. and South Vietnamese forces cross Cambodian border to get at enemy bases (April 30).|
|1971||U.S. bombers strike massively in North Vietnam for alleged violations of 1968 bombing halt agreement (Dec. 26 to 30). U.S. troops number 140,000 at year's end.|
|1972||North Vietnamese launch bombing offensive across demilitarized zone (March 30). U.S. resumes bombing of Hanoi (April 15); U.S. announces mining of North Vietnam ports. Last U.S. combat troops leave (Aug. 11).|
|1973||Cease-fire accord signed (Jan. 27); last non-combat U.S. troops withdraw from Vietnam (March 29); last U.S. prisoners of war released (April 1). Some U.S. civilians remain.|
|1975||President Theu's government of South Vietnam surrenders to Communists April 30; United States abandons embassy. All U.S. civilians leave Vietnam. 140,000 South Vietnamese refugees flown to United States.|
|1976||Vietnam reunified; large-scale resettlement and reeducation programs started.|
however, was dissatisfied with the Diem regime and allowed a military coup to occur on November 1, 1963. Diem was assassinated during the coup, but none of the lackluster military leaders who followed him was able to stop the Communists from gaining more ground.
Direct U.S. military involvement in Vietnam began in 1964. On August 2, 1964, President lyndon b. johnson announced that North Vietnamese ships had attacked U.S. naval vessels in the Gulf of Tonkin. Johnson asked Congress for the authority to employ any necessary course of action to safeguard U.S. troops. Based on what turned out to be inaccurate information supplied by the Johnson administration, Congress gave the president this authority in the Tonkin Gulf Resolution (78 Stat. 384).
Johnson used this resolution to justify military escalation in the absence of a congressional declaration of war. Following attacks on U.S. forces in February 1965, he authorized the bombing of North Vietnam. To continue the protection of the South Vietnamese government, Johnson increased the number of U.S. soldiers fighting in South Vietnam from 20,000 to 500,000 during the next three years.
U.S. military leaders had difficulty fighting a guerrilla army, yet repeatedly claimed that Viet Cong and North Vietnamese forces were losing the war. On January 30, 1968, the Viet Cong and the North Vietnamese made a surprise attack on 36 major cities and towns during the Tet (lunar new year) festival. Though U.S. troops repelled these attacks, the Tet offensive undermined the credibility of U.S. military leaders and of Johnson himself, who had claimed the war was close to being won. Antiwar sentiment in the United States grew after Tet as the public became skeptical about whether the war could be won and, if it could, how many years it would take to achieve victory.
The 1968 presidential campaign of Minnesota antiwar senator eugene mccarthy gained popularity after Tet. On March 31, 1968, Johnson announced that the United States would stop bombing North Vietnam above the 20th parallel and that he would not seek reelection to the presidency. Johnson ordered a total bombing halt in October, when North Vietnam agreed to begin preliminary peace talks in Paris. These discussions dragged on during the fall election campaign, which saw Republican richard m. nixon elected president.
Nixon sought to preserve the South Vietnamese government while withdrawing U.S. troops. He began a policy of "Vietnamization," which promised to gradually transfer all military operations to the South Vietnamese. During this process the United States would provide massive amounts of military aid. In 1969, when the number of U.S. military personnel in South Vietnam had reached 540,000, Nixon announced a modest troop withdrawal. During 1969 the Paris peace talks continued with the NLF, North Vietnamese, and South Vietnamese, but little progress was made.
In the spring of 1970, Nixon expanded the war as U.S. and South Vietnamese forces invaded Cambodia to destroy North Vietnamese military sanctuaries there. The Cambodian action created a firestorm on U.S. college and university campuses, where antiwar protests led to the closing of many institutions for the remainder of the spring. Nevertheless, Nixon persevered with his policies. He authorized the bombing of Cambodia and Laos by B-52 bombers, destabilizing the Cambodian government and destroying large sections of both countries. By late 1970 the number of U.S. military personnel in South Vietnam had declined to 335,000. A year later the number had dropped to 160,000 military personnel.
In March 1972 the North Vietnamese invaded the northern section of South Vietnam and the central highlands. Nixon responded by ordering the mining of Haiphong and other North Vietnamese ports and large-scale bombing of North Vietnam. In the fall of 1972, a peace treaty appeared likely, but the talks broke off in mid-December. Nixon then ordered intense bombing of Hanoi and other North Vietnamese cities. The "Christmas bombing" lasted 11 days.
The peace talks then resumed, and on January 27, 1973, the parties agreed to a cease-fire the following day, the withdrawal of all U.S. forces, the release of all prisoners of war, and the creation of an international force to keep the peace. The South Vietnamese were to have the right to determine their own future, but North Vietnamese troops stationed in the south could remain. By the end of 1973, almost all U.S. military personnel had left South Vietnam.
The conflict in the south continued in 1974. The United States cut military aid to South Vietnam in August 1974, resulting in the demoralization of the South Vietnamese army. The North Vietnamese, sensing that the end was near, attacked a provincial capital 60 miles north of Saigon in December 1974. After the city of Phouc Binh fell in early January 1975, the North Vietnamese launched a full-scale offensive in the central highlands in March. The South Vietnamese army fell apart and a general panic ensued. On April 30 the South Vietnamese government surrendered. On July 2, 1976, the country was officially united as the Socialist Republic of Vietnam.
More than 47,000 U.S. military personnel were killed in action during the war and nearly 11,000 died of other causes. Approximately 200,000 South Vietnamese military personnel were killed, and 900,000 North Vietnamese and Viet Cong soldiers lost their lives. The civilian population was devastated by the war. An estimated 1 million North and South Vietnamese civilians were killed during the war. Large parts of the countryside were destroyed through bombing and the U.S. spraying of chemical defoliants such as agent orange.
The War and U.S. Law
The war provoked many legal and constitutional controversies in the United States. Though the U.S. Supreme Court refused to decide whether the war was constitutional, it did rule on several war-related issues. In United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the Court upheld the conviction of David Paul O'Brien for violating a 1965 amendment to the Selective Service Act (50 U.S.C.A. App. § 451 et seq.) prohibiting any draft registrant from knowingly destroying or mutilating his draft card. The Court rejected O'Brien's contention that his burning of his draft card was Symbolic Speech protected by the First Amendment. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), however, the Court ruled that high school students had the First Amendment right to wear black armbands to school to protest U.S. involvement in Vietnam.
In welsh v. united states, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970), the Court held that a person could be exempted from compulsory military service based on purely moral or ethical beliefs against war.
One of the most significant Court decisions of the Vietnam War period involved the publication of the Pentagon Papers, a highly classified government report on the history of U.S. involvement in Vietnam. The Nixon administration sought to prevent the New York Times and the Washington Post from publishing excerpts from the study on the ground that publication would hurt national security interests. In new york times v. united states, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), the Supreme Court, by a 6–3 vote, held that the government's efforts to block publication amounted to an unconstitutional Prior Restraint.
Belknap, Michal R. 2002. The Vietnam War on Trial: The My Lai Massacre and the Court-Martial of Lieutenant Calley. Lawrence: Univ. Press of Kansas.
Caputo, Philip. 1987. A Rumor of War. New York: Ballantine Books.
FitzGerald, Frances. 1973. Fire in the Lake: The Vietnamese and the Americans in Vietnam. New York: Random House.
Hawley, Thomas M. 2003. "Accounting for Absent Bodies: The Politics and Jurisprudence of the Missing Persons Act." Studies in Law, Politics, and Society 28 (spring).
Solis, Gary D. 2000. "Military Justice, Civilian Clemency: The Sentences of Marine Corps War Crimes in South Vietnam." Transnational Law & Contemporary Problems 10 (spring).