Senate Select Committee - XVIII

Post-Homecoming Presidential Statements

By March 29, 1973, the most critical period for implementing the PPA had passed. The last of American troops had been withdrawn; the last of the POWs on the lists provided by the DRV and the Viet Cong had been released. But the President had reason to be concerned that live U.S. POWs might well remain in captivity in Indochina. Over a period of several weeks, beginning on February 6, 1973 with a set of talking points provided to Dr. Kissinger by the DIA, and ending on March 28, 1973 with a strongly worded memorandum to Dr. Kissinger from Secretary of Defense Elliot Richardson, the White House had received reports indicating the possibility that the POW release from Indochina had not been complete. As the intelligence community had made clear to the White House, the area of gravest concern was Laos, where it was feared that live U.S. POWs held by the Pathet Lao had been held back despite the DRV's informal promise to arrange their release.

Nevertheless, the President referred only indirectly to these concerns when he told the American people that night:

For the first time in 12 years, no American military forces are in Vietnam. All of our American POWs are on their way home.

A few moments later, the President added that:

There are still some problem areas. The provisions of the agreement requiring an accounting for all missing in action in Indochina, the provisions with regard to Laos and Cambodia, the provisions concerning infiltration from North Vietnam into South Vietnam have not been complied with. . .

We shall insist that North Vietnam comply with the agreement. And the leaders of North Vietnam should have no doubt as to the consequences if they fail to comply with the agreement.

The President did not mention that 73 of the Americans he now referred to as "missing in action" were still officially listed by the DIA as prisoners of war based on information that they were or may have been captured alive. Nor did the President cite the concerns of top Administration officials about the possibility that live Americans remained in captivity in Laos.

It was suggested by some witnesses during the Select Committee's hearings that when the President referred to the return of "all. . . our American POWs," he may have meant to refer simply to the POWs on the DRV and Viet Cong lists and not to downplay the possibility that other U.S. POWs were still being held. That would not explain, however, why the President essentially repeated his March 29 statement several times thereafter. On May 24, 1973, in a speech to returned POWs, for example, he said that "1973. . . saw. . . the return of all our prisoners of war." And in a speech on June 15, he said that "for the first time in 8 years, all of our prisoners of war are home here in America."

Twenty years later, during the Select Committee hearings, two high-level Nixon Administration officials (former Secretary of Defense Melvin Laird and former CIA Director and Defense Secretary James Schlesinger) questioned the wisdom and accuracy of the President's March 29, 1973 statement. It is important to note, however, that the Committee has found no documented evidence to indicate that any senior official in the Nixon Administration--including Mr. Laird or Mr. Schlesinger--publicly or privately questioned the President's statement at the time it was made. In fact, Mr. Laird had left the government in January, 1973 and Mr. Schlesinger told the Committee that he had spent the vast majority of his time during the early months of 1973 defending the CIA against allegations of involvement in the Watergate scandal.

In response to a Committee question about his March 29 statement, former President Nixon wrote:

I firmly believe that the Committe's handling of my statement has been totally unprofessional, calculatedly attempting to create the impression that Dr. Kissinger and I and other members of the Administration knowingly presented false information with respect to the return of all our POWs. As Dr. Kissinger has testified, to leave the impression that any President and his associates would deliberately leave behind live POWs was a lie. For members of the Committee to create such an impression, even for partisan political reasons, is totally unjustifiable. But to convey the impression to the hundreds of families of MIAs that an American President deliberately left behind their loved ones and that some of them might still be alive can only be described as obscene.

The Committee owes to the MIA families and to history an honest statement of the facts with regard to POWs and MIAs. Throughout America's military history, casualties are divided into three categories--those known to be killed in action; those known to be and acknowledged by the enemy to be prisoners of war; and all others who are classified as missing in action. My statement on March 29 was true to my knowledge then and, in view of what I have seen of the Committee's work to date, is true now. Further, the fact that I was not satisfied with the accounting we received for MIAs was true then and is true now.

The Administration and the American public had entered into Operation Homecoming with expectations that were only partially satisfied by the time that operation was complete. The families of those still listed as POW or as missing had the greatest cause for anguish because the answers they hoped would be forthcoming from the peace agreement had not materialized.

The Clements/Shields Meeting

In early April, 1973, Deputy Secretary of Defense William Clements summoned Dr. Roger Shields, head of the Defense Department's POW/MIA Task Force, to his office to discuss DOD's need for a new public formulation of its POW/MIA policy. According to Dr. Shields' deposition:

Dr. Shields: He (Mr. Clements) indicated to me that he believed that there were no Americans alive in Indochina. And I said: I don't believe that you could say that. . .

I told him that he could not say that. And he said: you didn't hear what I said. And I said: you can't say that. And I thought he was probably going to fire me. .

Question: What did you interpret that to mean, "you didn't hear me"?

Dr. Shields: That I was fighting the problem. You remember that there were a lot of people at the time who wanted to declare victory, okay. And I think that maybe at that point in time he believed that we had what we had and that was all we were going to get and that there was no one there.

He didn't have the benefit of the long negotiations that I had had, the contact with the communists that I had had, nor did he have the benefit of all the intelligence information with regard to all the specifics on a daily basis that I had.

So I explained to him my own feeling, not sure whether I was going to survive the incident or not, because he's a very strong man, as you know, a very strong individual with respect to his feelings. And he did not insist on holding his point of view. I think that he came around to my point of view.

During his public testimony, Dr. Shields essentially repeated his version of the meeting with Mr. Clements:

Sen. Kerry:. . . You recall going to see (Deputy) Secretary of Defense William Clements in his office in early April, a week before your April news conference, correct?

Dr. Shields: That's correct.

Sen. Kerry: And you heard him tell you, quote, all the American POWs are dead. And you said to him, you cannot say that.

Dr. Shields: That's correct.

Sen. Kerry: And he repeated to you, you did not hear me. They are all dead.

Dr. Shields: That's essentially correct.

Mr. Clements provided the Select Committee with inconsistent testimony on this subject. In his deposition, Mr. Clements denied any recollection of a meeting with Dr. Shields and stated that he and Dr. Shields never would have had such a meeting, because Dr. Shields was too low in the Pentagon hierarchy. Further, Mr. Clements testified, he would not have told anyone in April 1973 that "they're all dead," because it was not until several years later that he reached that conclusion. At the public hearing in September 1992, however, Mr. Clements conceded that he did meet with Dr. Shields in early April 1973. Mr. Clements testified that he told Dr. Shields that "in all likelihood those people over there are probably all dead. [T]here's no way that I could have said they are all dead, because I didn't know that."

The Nixon/Shields Meeting

On April 11, 1973, one day prior to a scheduled DOD press conference at which he was to discuss the results of Operation Homecoming, Dr. Shields met with President Nixon and Gen. Brent Scowcroft, the Deputy National Security Adviser.

A memo prepared for the meeting by Gen. Scowcroft indicated that its purpose was to thank Dr. Shields for his work on the POW/MIA issue and to discuss the results of Operation Homecoming. Among the proposed items for discussion were the following questions:

5. Now that our prisoners are back, how are we progressing in respect for our missing in action?

6. Are there any indications that some of our MIA's might still be alive?

7. Do you believe the other side will cooperate in helping us to account for the missing in action?

The Select Committee has sought to learn as much as possible about this meeting. A Memorandum of conversation concerning the meeting, provided to the Committee by the NSC, contains no reference to any discussion of either Dr. Shields' upcoming press briefing or the question whether any U.S. POW/MIAs might still be alive. Both Dr. Shields and Gen. Scowcroft told the Committee that they did not recall any effort by the President during the meeting to instruct Dr. Shields on what he should say during his press conference the following day. Both also state that they recall the meeting as being primarily congratulatory in nature, for a job well done in organizing and coordinating Operation Homecoming.

In a letter to the Committee, former President Nixon wrote:

My recollection is that I told Mr. Shields we had an equal obligation to find the facts concerning the MIAs as we did to secure the release of the POWs. I also conveyed to him my belief, which I still firmly hold, that it would have been unfair and a disservice to MIA families to raise false hopes without justification.

Shields' Press Conference

On April 12, 1973, Dr. Shields met with the press to discuss the Defense Department's reaction to Operation Homecoming. Although his opening remarks did not deal with the subject, one of the first questions directed at Dr. Shields concerned the possible survival of American POWs in Laos and Cambodia. Dr. Shields responded by saying that:

We have no indications at this time that there are any Americans alive in Indochina. As I said, we do not consider the list of men that we received from Laos, the recovery of 10 individuals, 9 of whom were American and 7 military, to be a complete accounting for all Americans who are lost in Laos. Nor do we consider it to be a complete statement of our information known to the LPF (Pathet Lao) in Laos. With regard to Cambodia, we have a number of men who are missing in action there, some that we carried as captive. We intend to pursue that, too. With regard to these men and these uncertainties which we have, even though we have no indication that there are any Americans still alive, we are going to pursue our efforts through the process of accounting for the missing. This is exactly what this procedure is for. And we anticipate that if any Americans are yet alive for one reason or another, that we would be able to ascertain that through this process of accounting for the missing.

Although Dr. Shields insists that he had no intention of "declaring all U.S. POWs dead," newspaper headlines the following day stressed the pessimistic nature of his response. "POW Unit Boss: No Living GIs Left in Indochina," read one headline. Dr. Shields, himself, told the Committee that:

I was distressed about the way it was reported, because a lot of family members called me on that, my very good friends. And I wanted to tell them and assure them that I was not saying that people were dead. If it had been reported that all Americans were dead, I did not say that.

Despite these concerns, the Department of Defense made no effort to correct or clarify the record by emphasizing in public the evidence that some Americans might still be alive. As Dr. Shields himself wrote in an internal Defense Department memorandum dated May 24, 1973, the one oft-quoted line from his April 12, 1973 press briefing--that DOD had "no indications...that there are any Americans alive in Indochina"-- had become "the basis for all subsequent answers from DOD to questions concerning the possibility that Americans may still be held prisoner in Southeast Asia."

Again, several Nixon Administration officials who appeared before the Select Committee expressed concern about the accuracy of Dr. Shields' "no indications" statement. Admiral Moorer, for example, described the statement as "premature." Lawrence Eagleburger, author of a March 28, 1973 internal Pentagon memorandum discussing the possibility that live Americans remained in Laos, described as "troubling" the juxtaposition of Dr. Shields' statement with the intelligence information on POWs in Laos. Ambassador Winston Lord said he had "no explanation" for Dr. Shields' statement and described it as "puzzling."

It should be stressed, however, that these reactions are made from the perspective of 1992. Despite the contrast between Dr. Shields' statement and information about prisoners possibly being left behind, the Committee has seen no evidence of objections from within the government to Dr. Shields' characterization of the issue at the time it was made.

Memo from Dr. Shields to Ambassador Hill

Dr. Shields expressed concern that his April 12 statement might have been overtaken by events in an internal memorandum written on May 24, 1973 to Ambassador Robert Hill, the new Assistant Secretary of Defense for International Security Affairs:

. . .only 10 persons, nine of whom were U.S., were released by the other side as Laos prisoners. Over 300 personnel remain unaccounted for in Laos. . .we have over 1300 Americans who are unaccounted for, and this means that we have no information to show conclusively that a man is either alive or dead.

In a DoD sponsored press conference held April 12, 1973, I made the statement that DoD had no specific knowledge indicating that any U.S. personnel were still alive and held prisoner in Southeast Asia. This statement has been the basis for all subsequent answers from DoD to questions concerning the possibility that Americans may still be held prisoner in Southeast Asia. It was a totally accurate and factual statement at the time it was made.

In light of more recent events, I believe that answer is no longer fully satisfactory. Specifically, there is reason to believe that the American pilot of an Air America aircraft downed in Laos on May 7 may have been captured along with six Meo passengers, by North Vietnamese forces. The last communication received from the pilot indicated he was landing on a hostile airstrip. A short time after, (intelligence method redacted) indicated that the U.S. pilot and the Meo passengers had been captured. Embassy Vientiane now reports (method redacted) the capture of the American and his passengers. . . .

On 4-5 February 1973, a USAF EC-47 carrying a crew of 8 U.S. personnel was downed in Laos. The search and rescue team succeeded in locating and inspecting the wreckage of the aircraft. Because the area was a hostile one, the inspection was not completed. Nevertheless, parts of four bodies were recovered, only one of which was identified. A short time after the shootdown of the EC-47, (method redacted) indicated that four Americans had been captured in an area some forty miles from the EC-47 crash site. . . .

Given these circumstances, I believe that the DoD position regarding the possibility of men still being held prisoner in SEA should be altered slightly. . . .

I am scheduled to testify on the MIA issue. . . With your concurrence, I will maintain the position that we do not know whether those now unaccounted for are alive or dead.

The Select Committee's investigation has yielded no evidence that Dr. Shields ever received a response to his May 24, 1973 memo to the Assistant Secretary of Defense.

Effect of Administration's Statements

In his deposition, Dr. Shields said that the Administration told the Pathet Lao during Operation Homecoming that it had certain knowledge that the LPF was holding American prisoners even though the Administration was, in fact, not certain. The purpose, according to Dr. Shields, was to put as much pressure as possible on the LPF in the event that prisoners were being held.

This was not the approach taken by the Administration in its post-Homecoming statements. The evidence is that the primary purpose of the public statements during this period was not to put pressure on the DRV or LPF, but rather to avoid raising the hopes of POW/MIA families.

During a WSAG meeting, before the Peace accords were signed, one Defense Department official warned against a repetition of the Korean War experience, when all missing Americans not known to be dead were officially presumed to be alive. The DOD official argued that such a policy raised expectations that were unrealistic and painful and impossible to resolve.

Unfortunately, the approach that was adopted may have served neither the purpose of pressuring our former adversaries nor the goal of easing family concerns.

As Ambassador Lord testified:

[O]nce you announce that [all of the POWs are home, and that you have no indications any remain alive in Indochina,] you lose any leverage you have on the Lao and the North Vietnamese. If you're publicly saying we have no indication, how can you press them privately or any other way to release? So it undercuts any leverage you have with them. That's one aspect, leaving aside whether it's a strange reversal of our actual calculations and whether there's any dissembling here, but just in terms of pressing North Vietnam and Laos, you're losing your leverage. They'll say: Well, you announced that you didn't have any. . . . Leaving aside the human and other political dimensions, it's terrible [negotiating strategy]. You lose all your leverage with the other side.

Meanwhile, the Defense Department's effort to keep POW/MIA family expectations in line with its perception of the reality ran into a wall of human emotion. The Administration's optimistic statements about what the peace agreement would produce caused families to expect more answers than actually were forthcoming. Although the Administration's statements seemed designed to help families accept the likelihood that their loved ones would not be returning alive, many families could not--and would not--accept this conclusion without proof.

Neither Dr. Shields nor any other Administration spokesman ever said publicly that "all our POWs are dead." They never ruled out, in public testimony, the possibility that some POWs might have been left behind. They expressed dissatisfaction with the lists received from the DRV, and especially the DRV/Laos list, and stressed the importance of efforts to account for the missing.

But the fact remains that the period for public confrontation with the DRV and Pathet Lao over POW/MIAs ended with Operation Homecoming. The hard questions that the Defense Department had about prisoners were no longer raised at press conferences, but--if at all--in private sessions with the DRV or LPF. The emphasis on Americans known to have been captured was replaced by a far broader and less confrontational search for the "missing." And the ongoing accusations of violations of the agreement and threats of military action directed against the DRV were prompted not by the DRV's failure to comply with the POW/MIA provisions of the agreement, but by issues of infiltration and military re-supply of the South.

Meetings between Dr. Kissinger and Le Duc Tho, May/June, 1973

Due to continued allegations of ceasefire violations by all sides, Dr. Kissinger and Le Duc Tho met in Paris in May and June of 1973 for the purpose of getting the implementation of the peace agreement back on track.

In anticipation of these meetings, Secretary of Defense Richardson sent a memorandum to the White House in April 1973 urging Dr. Kissinger to lean hard on the North Vietnamese on the subject of POWs in Laos. Secretary Richardson remained very concerned about the possibility that live American POWs were still being held captive by the Pathet Lao, and he wanted Dr. Kissinger to do everything he could to obtain additional information concerning that possibility.

In testimony before the Select Committee, Dr. Kissinger said that the POW/MIA issue played an important role in these meetings:

We never accepted the proposition that they (U.S. POWs) are all dead, continued to express our dissatisfaction with respect to the accounting for MIAs, and pressed as hard as we could for an execution of their commitments. Between May and June, 1973, I conducted 12 days of talks with the North Vietnamese. I reviewed in detail the North's violations, incuding the failure to account for all of the MIAs, but Hanoi sensed our leverage was rapidly eroding. A host of Congressional resolutions made it clear that we would have no support for military action. On May 31st, the Senate rejected a Republican sponsored amendment which would have made the cutoff of American military activity in Laos and Cambodia contingent upon the North Vietnamese making a good faith effort to account for the MIAs.

In response to my presentations, Le Duc Tho disdainfully read me editorials from the American press and speeches from the Congressional Record. . .

Despite all these obstacles, strenuous negotiations resulted in a joint communique on June 13th, reaffirming and strengthening all the POW provisions, including those with respect to missing in action of the original agreement. It was again violated and ignored. We made no secret of our outrage with Hanoi's violation. During 1973, we delivered at least 30 separate public statements or private messages to that effect.

The record does, indeed, reflect that the United States protested frequently the DRV's unwillingness to fulfill its obligations under the PPA concerning Americans missing in Vietnam. These protests were ordinarily delivered through the Four Party Joint Military Team and are discussed below.

During his discussions with Le Duc Tho, Dr. Kissinger pressed his view that Article 8(b) of the Paris Peace Accords, dealing with accounting for the missing in action, was applicable not only in Vietnam, but throughout Indochina. Specifically, Dr. Kissinger asked Le Duc Tho for a private pledge that the DRV would assist in obtaining an accounting of Americans missing in Laos. Le Duc Tho replied only that "we have to cooperate with our Lao friends because it is their sovereignty." Le Duc Tho also said that if Dr. Kissinger wished to assert, "for the purpose of public opinion," that article 8(b) is applicable to all of Indochina, the DRV "will say nothing about it."

In addition, the record indicates that during a May 23, 1973, meeting with Le Duc Tho, Dr. Kissinger asked the North Vietnamese to state publicly that there were no more live American POWs in Laos. As part of a "Draft Understanding on Laos," Dr. Kissinger proposed that the following language be made a part of the joint communique: "The DRV side has been informed that there are no U.S. prisoners being held in Laos."

Dr. Kissinger:. . . we would still like a sentence from you which I don't understand why you can't give us--which says that "the DRV has been informed there are no U.S. prisoners being held in Laos--that all the prisoners held in Laos have been released." It would be very important for us.

Le Duc Tho: I have acknowledged to you that all of them have been released.

Dr. Kissinger: Then why can't you write it down?

Despite Dr. Kissinger's request, Le Duc Tho refused to say publicly that no live U.S. POWs remained in Laos. As during the pre-Accords negotiations, Le Duc Tho would not agree to make any public statements which indicated either explicitly or implicitly North Vietnam's control of the Pathet Lao.

Dr. Kissinger was asked about this exchange during a hearing before the Select Committee:

Sen. Kerry:. . . So here you are in May with Le Duc Tho saying not. . . we need an accounting, but saying, give us a sentence that says there's nobody alive in Laos, it will be helpful to us.

Dr. Kissinger: You know, Mr. Chairman, it is a really bizarre situation when the people who were parading and keeping us from doing the things we needed to do are now telling us what sentences we should have used after all our leverage was taken away from us.

Sen. Kerry: Sir, this is a filibuster. I mean, I am not doing that. I am asking you why it is that you did not present the case but said just give us a sentence that there is no one alive.

Dr. Kissinger: I presented the case, Mr. Chairman, in February. We--

Sen. Kerry: Why would you have been satisfied with a sentence?

Dr. Kissinger: I wasn't satisfied, Mr. Chairman. I was dealing here with a man who knew reality. I had no means of pressure left. I had no economic aid left. The Congress was in the process of passing a series of resolutions that banned military action, and all I could do was bluff my way through this due to the actions that were taken by the Congress of the United States, and as I said in my statement, it does not behoove the Senate to blame me for what sentences I may or may not have used in circumstances which would have been totally--

Sen. Kerry: But this goes to the gravamen of the issue, Mr. Secretary. It really does. If you were to be satisfied with a sentence that says no one is alive, it'll help us, rather than to suggest to him that if you don't tell us what happened we can resume the bombing, there's a difference about what was being done about POWs, and the fact is that subsequent to this, despite the fact that you sit here and now say to me, our leverage is being taken away, you recommended bombing after this meeting to enforce other elements of the ceasefire, but not POWs.

Dr. Kissinger: Mr. Chairman, you're just playing with documents.

Sen. Kerry: I'm playing with the facts.

Dr. Kissinger: Of course, you take the position that people who were meeting with families all during the war, who had every incentive to get these--to want these--and every obligation to get these prisoners returned were bombing for one reason rather than another reason.

I tell you, Mr. Chairman, if we had had the authority, we would have had another major negotiation. In the context where every newspaper, where every Congressional Committee was preventing us from exercising the leverage, I -- it is very easy to second-guess 20 years (later). .. things taken out of the whole stream in which you don't even know what I said to Le Duc Tho in private conversations because the record will--well, the record won't show it, because generally when I threatened Le Duc Tho I did not do it on the record.

The legal adviser to Dr. Kissinger during the May/June talks with Le Duc Tho was George Aldrich. His recollections indicate that, although the question of missing Americans was discussed, the possibility that some POWs might still be alive was not. Mr. Aldrich: My memories and my notes on those meetings indicate that the principal discussions of nonreturn of prisoners related to the nonreturn of prisoners between the Vietnamese parties, not ours. Our concern as expressed was about the accounting in Laos. It was not a concern about nonreturn.

Mr. Aldrich: My memories and my notes on those meetings indicate that the principal discussions of nonreturn of prisoners related to the nonreturn of prisoners between the Vietnamese parties, not ours. Our concern as expressed was about the accounting in Laos. It was not a concern about nonreturn.

Sen. Kerry: But at that time there was an issue of nonreturn.

Mr. Aldrich: Not in my view. I was not told there was any issue, sir.

Sen. Kerry: You had no recollection of any issue at that time, then, and no one had put in front of you at that time in May a question about people not accounted for in Laos.

Mr. Aldrich: It was not, as far as I can recall, ever suggested to me that prisoners in Laos had not been returned.

On June 13, 1973, the United States and the DRV signed a joint communique pledging mutual support for full implementation of the Paris Accords. Point 8 of the communique states that:

In conformity with article 8 of the Agreement, (a) any captured personnel covered by Article 8(a) of the Agreement who have not been returned shall be returned without delay, and in any event within no more than 30 days from the date of signature of this Joint Communique.. .

in conformity with Article 8(b) of the agreement, the parties shall help each other to get infornmation about those military personnel and foreign civilians of the parties missing in action to determine the location and take care of the graves of the dead so as to facilitate the exhumation and repatriation of remains, and to take any such other measures as may be required to get information about those still considered missing in action.

In his statement to the press, Dr. Kissinger interpreted the communique as requiring both sides to make "major efforts to help each other to account for the missing in action throughout Indochina." As promised, Le Duc Tho said nothing to contradict Dr. Kissinger's statement. Unfortunately, the Committee found no evidence that the DRV undertook the "major efforts" hoped for by Dr. Kissinger.