Senate Select Committee - XX

Status Change Policy

Federal law provides the secretaries of the military services with exclusive authority to determine initially and later change the casualty classifications of personnel captured (POW), killed (KIA) or missing in action (MIA). Although the status classification process is subject to guidelines set forth in the statute and to certain constitutional due process guarantees, it nevertheless remains within the exclusive jurisdiction of the service secretaries.

Throughout the course of the Vietnam War, status changes were made in accordance with the conventional practice. On May 22, 1973, however, acting Secretary of Defense William Clements received a routine memorandum from the DIA concerning Americans unaccounted for after Operation Homecoming. The memo stated that:

The Military Services are not considering any status changes at this time from missing to captured. However, one case involving an American civilian--Mr. Emmet Kay who was lost over Laos on 7 May 1973--is under review by the Department of State and this Agency for possible change of status from missing to captured.

For reasons that remain unclear to the Select Committee, Secretary Clements wrote on the bottom of the memo:

I want a memo sent to all departments (Services-ASD-DIA- JCS) etc. that any reclassification from MIA to POW must first be cleared by me/MIA to KIA ok within each service and no review by me.

The requested memorandum was prepared by Assistant Secretary of Defense Robert Hill and was issued over Secretary Clements' signature on June 8, 1973. As ordered, the memo directed that the service secretaries present to him for his personal review and approval all proposed status changes from MIA to POW. No such requirement was imposed for proposed status changes from POW to MIA or KIA, or from MIA to KIA. The memo, in its entirety, reads:

I request that all actions which recommend reclassification of military personnel from missing in action to captured status be submitted to me for approval. Proposed reclassification actions should be first routed through the Assistant Secretary of defense for International Security Affairs for preliminary review before referral to me.

In his deposition, Mr. Clements said that the service secretaries presented between 50 and 75 cases to him over the next several months pursuant to this directive. In each case, according to Mr. Clements, it was recommended that a serviceman's status be changed from MIA to POW. Mr. Clements recalled that, in his judgment, the intelligence information in every one of these cases fell short of his standards for POW status. Mr. Clements accordingly denied the status change request in each instance.

Mr. Clements' memorandum and testimony during his deposition concerning it were peculiar for a number of reasons.

First, the memo reflected a departure from legally required procedures under which status changes were the exclusive prerogative of the service secretaries.

Second, the policy reflected in the June 8 memo is contrary to another memo, sent by Secretary Clements to President Nixon on July 17, 1973, in which he said that decisions about status changes should continue to be made by the service secretaries "as established by law and experience." The Secretary did not inform the President that he had, himself, ordered the Department to follow a different policy.

Third, Mr. Clements opened his public testimony before the Select Committee on September 24, 1992 by stating that status changes were handled exclusively by the services throughout his tenure at DoD:

Within DoD, the services control classification, in the sense that when you have your POWs or MIAs or KIAs, those classifications are service-classified. The Department of Defense, as you would think of my position in the office of the Secretary of Defense, we do not do that. We did not then do that. Now, exactly what they would do at this time, I don't know. But at that time, those classifications were held within the services. In other words, the Navy classified their people, Army did theirs, and the Air Force did theirs.

I want to make that very clear because it's important that your committee and the public at large understand that the office of the Secretary of Defense and/or the State Department and/or the National Security Council, nor the President. . . had any control whatsoever over classification. That was strictly within the services.

Fourth, during the public hearing, Mr. Clements did not recall or at any rate seem to grasp the significance of the June 8, 1973 memorandum:

Sen. Smith: Why did you, Governor Clements, make a decision to not allow your service secretaries. . . to upgrade an individual from an MIA category to a POW category? Why did you make that decision?

Governor Clements: I don't think that I made such a decision.

Sen. Smith: You did not make that decision. Is that your statement?

Governor Clements: I have no recollection of making a decision of that kind. Let me tell you something, Senator, it is very, very clear that only classification can be changed within the service. And let's don't get that confused.

Sen. Smith: (reads text of June 8 memo aloud) That was June 8th, 1973.

Governor Clements: That's right.

Sen. Smith: With your signature.

Governor Clements: And there's nothing wrong with that. . .

Sen. Smith: Governor, you directed the Secretaries to route it all through you on June 8th. And on July 17th, you wrote to the President of the United States and you said: In my view, the status determination process, as established by law and experience, should be allowed to function as prescribed. . .

Governor Clements: I agree with that.

Sen. Smith: That is what you said to the President, but that is not what you said on June 8th to the service secretaries.

Governor Clements: I disagree completely.

Sen. Smith: Well. . . I am not going to argue with you, Governor. It is a part of the record.

Governor Clements: Well, you don't have to argue with me, just read it again. . .

Sen. Smith: Governor, I have got it in your own handwriting. . . "I want a memo sent to all departments, services, ASD, DIA, JCS, that any reclassification from MIA to POW must first be cleared by me." That is what you said.

Governor Clements: I want to review--

Sen. Smith: In your own handwriting.

Governor Clements: I want to review every one of them. That's exactly right. This was a very, very delicate issue.

The most peculiar aspect of all this is that the Select Committee has discovered no documentary or testimonial evidence to indicate that Mr. Clements ever actually reviewed any particular status classification cases, let alone the 50 to 75 cases he cited in his deposition. Indeed, Dr. Shields, who would certainly have known if such a review ever occurred, told the Committee:

Mr. Chairman, I don't want to interject here, but. . . I can't recall of a single case where they (the services) wanted to reclassify a missing person to prisoner status.

Finally, the Committee located a July 17, 1973 memorandum from Mr. Clements to the President and an August 17, 1973 memorandum to the Service Secretaries concerning further status changes. The July 17 memorandum stated:

Presently, there are 1,278 military personnel unaccounted for. . .Of this number, 67 are officially listed as prisoner of war based on information that they reached the ground safely and were captured. . . The rest have remained in a missing status. . .In a significant number of cases only faint hope was ever held for the individual's survival. Although our returned prisoners could confirm the death of less than 100 men, they are of the firm opinion that none of the other missing men entered the captivity system. . .

In addition, high level officials from the other side have repeatedly emphasized that none of the missing are still being held captive. Absence of new information indicating a man is alive constitutes implicit confirmation of prior evidence in those cases where chances for survival were deemed small. A determination of death should now be made in those cases.

The August 17 memorandum directed:

the Secretaries of the Military Departments to proceed as prescribed by law with changes in status to deceased, where warranted, of servicemen who did not return from Southeast Asia.

Phase-out of the POW/MIA Task Force

In an internal Pentagon memorandum dated February 13, 1971, Secretary of Defense Melvin Laird established a POW/MIA Task Force to serve as the coordinating body within DOD for all POW/MIA- related issues:

The primary function of the Task Group will be to provide close and continuing coordination of all activities in DOD in the PW/MIA area. In accord with policy guidance, it will ensure that responsible offices and agencies work together in planning, programming, assessing, and carrying out all required actions.

Secretary Laird placed the Task Force under the direction of the Assistant Secretary of Defense for International Security Affairs and appointed Roger Shields as chairman of the Task Force.

In a follow-up memorandum dated December 3, 1971, Secretary Laird reemphasized the importance of coordination within DOD and directed that all POW/MIA issues be forwarded to Dr. Shields:

The best interests of the Defense Department, the men, and their families require the closest and most thorough coordination of every aspect of the conduct of prisoner of war/missing in action affairs. To this end, Dr. Roger Shields, of the office of the Assistant Secretary (ISA), has been tasked with overall Department of Defense coordination responsibility for all PW/MIA matters. I ask that you direct all elements of your organization to coordinate with Dr. Shields, or his staff (PW Task Force), all actions related to prisoners of war or missing in action. I consider this to be the only way in which we can satisfactorily handle this difficult problem, and I earnestly solicit your cooperation to this purpose.

Consistent with Secretary Laird's directives, Dr. Shields acted as DOD's leading policymaker for POW/MIA issues right up through the aftermath of Operation Homecoming. Dr. Shields served as DOD's primary POW/MIA spokesperson with the Congress, the families and the public; as the coordinator of the Department's intelligence assets assigned to the POW/MIA issue; and as coordinator of Operation Homecoming.

Nevertheless, DOD moved to abolish the POW/MIA Task Force almost immediately after the completion of Operation Homecoming. In a memorandum dated April 25, 1973, acting Assistant Secretary of Defense (ISA) Lawrence Eagleburger recommended that the Task Force be phased out over a four-month period:

With the recent ceasefire agreement in both Vietnam and Laos and the return of our servicemen held captive by the Communist side, the PW/MIA situation no longer warrants the retention of the PW/MIA Task Force in its present size or configuration. Accordingly, this Task Force should be phased out over the next four months and those functional areas currently being performed by the Task Force should be reassigned to the Military Departments, Joint Chiefs of Staff, and OSD Component Staff Agencies, as appropriate.

Secretary of Defense Elliot Richardson approved Mr. Eagleburger's recommendation on May 1, 1973 and issued a memorandum ordering the phase-out of the POW/MIA Task Force by August 31, 1973. Secretary Richardson wrote:

The recent peace agreements in Vietnam and Laos, along with the withdrawal of our military forces from Vietnam and the return of our prisoners of war provide a basis for the phase-out of the Prisoner of War/Missing in Action Task Force and the functional reorganization of the DoD PW/MIA program. In this regard, I hasten to add that the phase-out of the Task Force in no way infers that those on-going programs and long-range actions on behalf of our returned servicemen, their families, and the missing in action will be terminated. Instead, a need exists for a redistribution of functional responsibilities currently being accomplished by the PW/MIA Task Force.

The Select Committee looked closely at the rapid phase-out of the Task Force to try to determine whether it was indicative of a larger U.S. Government effort to downplay lingering doubts about the completeness of the release of American POWs from North Vietnam and Laos. Both of the memoranda cited above appear premised on the view that no live American POWs remained behind in Indochina--a premise possibly at odds with information known to the Administration. Yet, Secretary Richardson, Secretary Schlesinger and Dr. Shields all testified that the phase-out order was a mere bureaucratic shuffling of resources within DOD that did not result in any real decrease in the Department's deployment of POW/MIA assets. In fact, Dr. Shields was soon promoted to Deputy Assistant Secretary of Defense, and he remained at DOD in charge of POW/MIA matters through 1976.

Joint Economic Commission

As discussed earlier, the formation of the Joint Economic Commission (JEC) was announced on February 14, 1973 following Dr. Kissinger's visit to Hanoi. Formal meetings began the next month in Paris with Maurice J. Williams heading the American delegation. The public position taken by the Administration was still that no specific dollar figures had been discussed with the North Vietnamese; that the provision of aid would depend on DRV compliance with the ceasefire and other terms of the PPA; and that no assistance would be provided without authorization from the Congress.

By the end of March, although it was not revealed publicly at the time, the two sides had reached tentative agreement on a detailed five year plan for reconstruction. All that was lacking was an agreed mechanism for DRV reporting on how the aid would be used.

On April 5, 1973, the U.S. Senate voted 88-3 to bar the use of any previously-appropriated funds for the purpose of providing assistance to the DRV. Although the amendment did not prohibit the President from proposing a reconstruction program for North Vietnam, the tone of the debate indicated that such a proposal would not have much support.

On April 19, the JEC talks were suspended by the U.S. as a result of alleged violations by the DRV of the ceasefire. Talks did not resume until after the joint U.S.-North Vietnamese communique of June 13, 1973 pledging adherence to the terms of the PPA. Talks were then held from June 19 until July 23, after which they were suspended indefinitely due to the DRV's failure to stop military actions directed against South Vietnam.

Four Party Joint Military Team

The Four Party Joint Military Team (FPJMT), based in Saigon, came into existence immediately after the end of Operation Homecoming and was charged with responsibility for implementing article 8(b) of the PPA. Article 8(b) provides for mutual assistance in obtaining information about those considered missing in action, determining the location of graves and providing for the repatriation of remains.

On April 14, 1973, Ellsworth Bunker, the U.S. Ambassador to South Vietnam, outlined proposed priorities for the FPJMT in a cable to the Secretary of State. Ambassador Bunker said that the first priority would be recovery of the remains of those listed by the DRV and PRG as having died while in captivity. The second priority would be to seek information on the so-called discrepancy cases-- Americans thought by the U.S. to have been captured alive. The third priority would be to negotiate a process for the air and ground search of crash sites.

Although meetings of the FPJMT were held regularly beginning in early April, very little was accomplished. Colonel Laurence Robson, who served as Deputy Chief of the FPJMT, testified that folders describing 104 cases of American POW/MIAs about whom the DRV should have information were turned over to the North Vietnamese. Many of these had previously been brought to the DRV's attention during Dr. Kissinger's visit to Hanoi in February. In April, as in February, however, the U.S. received no response. Despite two visits to purported U.S. POW grave sites in North Vietnam, no remains were repatriated.

According to Col. Robson, part of the DRV's refusal to cooperate may have resulted from the opposition demonstrated in Congress to the provision of reconstruction aid. And in testimony before the House Committee on Foreign Affairs in December, 1973, Assistant Secretary of Defense Roger Shields characterized the actual meetings as consisting of "propaganda speeches, boycotts, walkouts, and general stalling tactics by the Communist delegations."