Should we compare the USA’s 22 USC 1571–1604 and 22 USC 2151?

(20) 22 U.S.C §§ 1571­– 1604 Dec. 23,1950

Foreign Relations of the United States, 1961–1963, Volume II, Vietnam, 1962

108. Letter From the Assistant Secretary of State for Congressional Relations (Dutton) to the Chairman of the Senate Foreign Relations Committee (Fulbright)1

Washington, March 14, 1962.

Dear Mr. Chairman: In Governor Harrimanʼs absence, I am forwarding the Departmentʼs replies to the questions which were presented to him as a result of the executive session of the Foreign Relations Committee concerning Viet-Nam.2 The questions were those put by Senator Morse at the meeting and then by letter subsequently.

The enclosed material is provided with the understanding that those portions which are classified are for the sole information of the Committee.

If I may be of further assistance, I will appreciate you letting me know.

Respectfully,

Frederick G. Dutton3

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[Enclosure]

ANSWERS TO SENATOR WAYNE MORSEʼS QUESTIONS OF FEBRUARY 21, 1962 ON VIET-NAM

Q. №1. (Unclassified) From what provisions of the Constitution or treaty or statute does President Kennedy derive the right to order United States military personnel to transport South Vietnamese troops into combat, to return the fire of North Vietnamese, to patrol the sea approaches to South Viet-Nam and to drop propaganda leaflets over areas held by the guerrillas opposing the Government of South Viet-Nam?

Answer: (Unclassified) Article II of the Constitution makes the President Commander-in-Chief of the Army and Navy of the United States, and vests in him the executive power. Article II has also been interpreted as making the President the “sole organ of the nation” in the field of foreign affairs (United States v. Curtiss-Wright, 299 U.S. 304, 318 ff. (1936)). These constitutional powers give the President authority to deploy United States military personnel abroad.

In addition to the Presidentʼs constitutional powers, the Congress has enacted Section 503 of the Foreign Assistance Act of 1961 which authorizes the President to furnish military assistance abroad, inter alia, by” … assigning or detailing members of the armed forces of the United States … to perform duties of a noncombatant nature, including those related to training or advice.”4

Furthermore, the United States and Viet-Nam are parties to the agreement for Mutual Defense Assistance in Indochina of December 23, 1950 (TIAS 2447; 3 U.S.T. 2756) which was concluded pursuant to P.L. 329, 81st Congress (63 Stat. 714, 22 U.S.C. 1571–1604). This agreement provides for the furnishing by the United States to Viet-Nam, among others, of military assistance in the form of equipment, material and services. Article IV, paragraph 2, of the agreement states that “To facilitate operations under this agreement, each Government agrees … to receive within its territory such personnel of the United States of America as may be required for the purposes of this agreement … .”

Under these provisions the United States has since 1950 provided military assistance to Viet-Nam in the form of training, equipment and logistic support. The activities mentioned in the question are an expansion of this training and logistic support role. The transportation or troops is logistic support. The sea patrols referred to are carefully limited to training operations and the exchange of intelligence with [Page 223]Vietnamese naval units. Our assistance to the Vietnamese in dropping leaflets over isolated parts of Viet-Nam has similarly been confined to training and logistic aspects of the operation.

Given the activities in which they are engaged, and the character of guerrilla warfare, in which hostilities occur sporadically at scattered points throughout the country, we had to face the possibility that United States personnel would come under hostile fire. In these circumstances, it was obvious that they would have to be able to defend themselves, and the President has accordingly authorized them to fire, if fired upon, if necessary for self-defense.

Q. №2. (Unclassified) Would you discuss the differences and similarities between the present use of United States forces in Viet-Nam and their use in Korea in 1950 and in Lebanon in 1958?

Answer: (Unclassified) United States military personnel are presently in Viet-Nam pursuant to a request of the Government of the Republic of Viet-Nam of December 14, 1961 (attached)5 and to an Agreement for Mutual Defense Assistance in Indochina of December 23, 1950. These personnel are engaged in activities of a noncombatant nature, primarily in training, logistic and advisory capacities, designed to assist the Government of the Republic of Viet-Nam to counter the indirect aggression directed against it from the North.

United States forces were sent into direct combat operations in South Korea to repel the aggressive armed attack launched on June 25, 1950 by North Korea against the Republic of Korea. On the same day the United Nations Security Council adopted a resolution calling upon all members to render every assistance to the United Nations in the situation. The Korean National Assembly, on June 26, appealed both to the United States and the United Nations for assistance. On June 27, 1950 the Security Council adopted a resolution recommending that members of the United Nations furnish such assistance to the Republic of Korea as might be necessary to repel the attack. The Security Council, on July 7, established a United Nations Command under the United States. In these circumstances, the President on the basis of his constitutional authority sent United States forces to Korea.

United States forces were deployed in Lebanon in 1958 pursuant to an urgent request from the Government of Lebanon which felt itself threatened by externally inspired civil strife. These troops were sent to Lebanon under the Presidentʼs constitutional authority as Commander-in-Chief. President Eisenhower stated that United States forces had been sent to Lebanon “to protect American lives and by their presence there to encourage the Lebanese Government in defense of Lebanese sovereignty and integrity.”

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It will be recalled that pursuant to President Eisenhowerʼs request the Congress had on March 9, 1957, passed a joint resolution to promote peace and stability in the Middle East which provided in part, “if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism:” (P.L. 85–7, 85th Congress). In sending United States troops to Lebanon, the President did not make use of this joint resolution since the Lebanon situation did not involve Communist armed aggression as contemplated by the resolution.

In the Lebanon situation, United States forces neither engaged in combat operations as in the Korean conflict nor in training or advisory functions as is the case today in Viet-Nam. Their mere presence in Lebanon had the desired effect of helping to restore order and tranquility there.

Q. №3. (Unclassified) Would it be appropriate under the Constitution for the President to submit to the Congress a resolution covering the situation in Viet-Nam which would be comparable to the Formosa Resolution of 19556 and the Middle East Resolution of 1957?

Answer: (Unclassified) As indicated in question 1 above the President has power under the Constitution to take the actions presently being carried on in Viet-Nam.

It is obviously desirable that the Congress understand the basis for Presidential actions of this character and fully support them. Traditionally these objectives have been achieved by consultation between officers of the Executive Branch and members and Committees of Congress having responsibility in the premises, particularly the Senate Foreign Relations Committee. In the present case the President has asked that the fullest and freest consultation with the Committee and the Congressional leadership be maintained. He has himself met with appropriate members of the Congress on several occasions to discuss the problems in Viet-Nam. The Secretary has frequently testified before this Committee on the same subject, and has discussed it informally on many occasions with the members of the Committee. The Assistant Secretary for Far Eastern Affairs with appropriate members of his staff are and have been available for the purpose of consultation.

On two occasions in the past, where it seemed possible that the President would wish to commit United States forces to combat operations, President Eisenhower decided to invite Congress to associate itself with his exercise of his constitutional functions as Commander-in-Chief, primarily in order to provide a convincing demonstration of United States unity on the issues there involved. We have not thought [Page 225]that such action has been called for to this point. However, should circumstances develop in which a formal expression of Congressional support seems desirable, the President undoubtedly would not hesitate to seek an appropriate resolution.

Q. №4. (Unclassified) To what extent are the actions by United States military personnel in South Viet-Nam considered to be combat actions?

Answer: (Unclassified) As the President said in his Press Conference on February 14, “We have not sent combat troops in the generally understood sense of the word.”7 The United States is assisting Vietnamese combat units with training, logistic, transportation and advisory personnel.

The nature of the activities in which United States military personnel are engaged in Viet-Nam is dictated by the very character of guerrilla war. Hostilities are not concentrated in any well-defined area; rather, fighting is likely to break out sporadically and without warning in any part of the country. The “front” is not fixed as in the classical situation; the front literally is everywhere. In these circumstances, as indicated in Question 1 above, the President has ordered our military personnel in Viet-Nam to fire back in self-defense if fired upon.

As noted above, United States military personnel in Viet-Nam are noncombatants. In the seven years since 1955 violence in Viet-Nam has claimed about 26,000 casualties. Of these, fifteen have been American personnel (four killed, ten wounded, one missing). Despite our increased activities in Viet-Nam, we would hope that these casualties can continue to be kept at a minimum.

Q. №5. (Unclassified) Is the action of the United States in Viet-Nam inconsistent with the agreement of July 1954 on the cessation of hostilities in Viet-Nam, having particular reference to Chapter III entitled “Ban on Introduction of Fresh Troops, Military Personnel, Arms and Munitions, Military Bases”? (End Unclassified)

Answer: (Confidential) The United States did not sign the 1954 Geneva Accords and is not a party thereto. At the time of conclusion of the Accords, Under Secretary of State Walter Bedell Smith stated that the United States “would view any renewal of the aggression in violation of the … agreements with grave concern and as seriously threatening international peace and security.” We have maintained the view expressed in General Smithʼs statement, and our present actions in Viet-Nam are fully in accord with that policy.

However, North Viet-Nam which is a party to the Accords has consistently violated the agreements by directing, assisting, supplying, and reinforcing guerrilla forces in South Viet-Nam and by illegal introduction into North Viet-Nam of military personnel and war materials.

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International law recognizes the principle that a material breach of a treaty by one party entitles the other at least to withhold compliance with an equivalent, corresponding or related provision until the other party is prepared to observe its obligations. Both the United States and Viet-Nam have made it clear that if North Viet-Nam would comply with the provisions of the Geneva Accords, increased United States assistance would no longer be necessary. Legally, the actions of the Government of the Republic of Viet-Nam in requesting and receiving additional assistance from the United States are fully consistent with the above principle.

Justification for the application of the principle of law outlined above gains force in the present context from the fact that actions being taken by the Government of Viet-Nam can be related to the requirements of legitimate self-defense necessitated by the breaches of the other party. (End Confidential)

Q. №6. (Unclassified) Section 503 of the Foreign Assistance Act of 1961 authorizes the President to assist a friendly country by providing defense articles and by assigning military personnel “to perform duties of a noncombatant nature”. To what extent are the operations of United States Forces in Viet-Nam being paid for out of appropriations made pursuant to the Foreign Assistance Act of 1961? (End Unclassified)

Answer: (Begin Confidential) As of March 1, 1962, fiscal year 1962 operations in Viet-Nam have been funded to the extent of $151.3 million from appropriations made pursuant to the Foreign Assistance Act of 1961 and $49.6 million from Department of Defense appropriations. These figures are subject to adjustment by the Assistant Secretary of Defense (Comptroller) in accordance with the following guideline issued by the Secretary of Defense:

“Under MAP financing procedures, reimbursement is made to the Military Service for materiel and/or services delivered or furnished to a recipient country against an approved and funded Military Assistance Program. On the other hand, where a Military Service has been assigned a U.S. military mission in a foreign country by the Secretary of Defense through the Joint Chiefs of Staff, all costs involved will be charged to the Military Service Appropriation.”

Salaries of all military personnel are, of course, funded from their Service appropriations and are not included in the above estimates. (End Confidential)

Q. №7. (Unclassified) What are the plans of this Administration, if any, to bring the South Viet-Nam issues before the United Nations?

Answer: (Confidential) The Administration has no present plans to bring the Viet-Nam situation before the United Nations Security Council or General Assembly for debate or action. However, Viet-Namʼs case has been officially brought to the attention of the United [Page 227]Nations and its members. The State Department paper on Viet-Nam entitled “A Threat to the Peace” was transmitted to the Secretary General and all members on December 8, 1961. The Government of the Republic of Viet-Namʼs own presentation of the facts has been made known to the members. The Secretary General, at the request of the Australian Delegation, circulated to all United Nations members copies of Vietnamese Notes to the International Control Commission on January 10, 1962. (End Confidential)

Q. №8. (Unclassified) What do we consider to be our obligation to SEATO in regard to supplying military aid and economic aid to South Viet-Nam?

Answer: (Confidential) Under Article IV (1) of the Southeast Asia Collective Defense Treaty and the Protocol to the Treaty, the United States is committed, in the event of Communist aggression by means of armed attack against the Republic of Viet-Nam, to act to meet the common danger in accordance with its constitutional processes. In the case of a threat to Viet-Nam other than armed attack, the parties to the Treaty have agreed under Article IV (2) to consult in order to agree on measures which should be taken for the common defense. Under Article IV (3) of the Treaty, no action can be taken on the territory of Viet-Nam except at the invitation or with the consent of the Government of the Republic of Viet-Nam. There has been no request by Viet-Nam for SEATO action.

There is, of course, nothing in the Treaty which prevents the United States from taking action bilaterally with the Republic of Viet-Nam outside the framework of the Treaty.

Several years before the creation of SEATO, the United States began to supply military assistance (1950-TIAS 2447) and Economic Aid (1951-TIAS 2346). A good working relationship for dealing with the fast-moving complexities of a guerrilla war has been established.

We have consulted regularly in the SEATO Council Representatives with our Treaty partners on the situation in Viet-Nam. We have informed them of our efforts there and have urged them to join in helping Viet-Nam. A majority of the members are doing so. (End Confidential)

Q. №9. (Unclassified) What is the Administrationʼs answer to the cumulating evidence that the Government of Viet-Nam is not an effective government, that it is a corrupt government, and that it is a government that will probably fall at some time in the absence of U.S. support? (End Unclassified)

Answer: (Begin Secret) The effectiveness of the Vietnamese Government can only be judged against its circumstances. It is a new country emerging from fifteen years of war and eighty years of colonial control. During half its six years of existence it has fought off the threat of Communist conquest. Its political policy has been to lay the [Page 228]infrastructure of democracy” through education, transportation and communication. Despite the war the number of children in Vietnamese elementary schools has grown in five years to 1,100,000, an increase of 272%, and a far better record than that of Communist North Viet-Nam. The Government of Viet-Nam has also made a proud record in expanding transportation, communication and health services. Its per capita food production and per capita gross national product are growing and are both higher than in North Viet-Nam. This is a good indication that the Government of free Viet-Nam with U.S. help has made more effective progress than has North Viet-Nam under Communist control. Statistical evidence carefully compiled from the best sources available is enclosed.8

On the other hand Government effectiveness in South Viet-Nam has been hampered by over-centralization, overlapping agencies and insufficient understanding between the governing and the governed. While this is partly due to the lack of competent administrators, it is also true that a greater number of competent administrators could have been developed if they had been given more responsibility and authority.

Another fact which has hampered the effectiveness of the Government of Viet-Nam is that President Diem does not possess the magnetic qualities needed to rally his people enthusiastically to his Governmentʼs programs.

There is evidence of corruption in the Government of Viet-Nam. There is no evidence of corruption on the part of President Diem and he has carried on an extensive and well-publicized campaign to punish corrupt officials. Several have been publicly tried and punished.

Some official corruption is endemic in Southeast Asian countries. The amount of corruption in Viet-Nam does not appear to be greater than in neighboring countries. However, it has damaged the prestige of the Government of Viet-Nam because exaggerated stories of official corruption are widely believed. We have checked these stories carefully and find no evidence for many of them. However, the Government of Viet-Nam has not done an effective job setting the record straight with its own people.

Two attempts have been made against President Diem. Both were military in origin and seem to have been motivated by the feeling that the government was not giving them the authority to press on vigorously with the anti-Communist struggle. The attempts failed. President Diem is clearly in control as the legitimate and elected head of the government. No other group has any appreciable degree of popular support. In the circumstances of war and tension existing in Viet-Nam, [Page 229]some discontent must be expected. Also the trouble lies partly with Diemʼs inability to project adequately his own many good qualities of leadership to his people. (End Secret)

Q. №10. (Unclassified) What actions has President Diem taken in regard to the 9 points for reform which he and Ambassador Nolting agreed to in December?9

Answer: (Unclassified) Varying progress has been made on all the points on which President Diem and Ambassador Nolting reached agreement in early December. Since their understanding intimately affects the interests of both governments and the prosecution of Viet-Namʼs defense effort, it cannot be spelled out in detail.

However, the following has clearly emerged in the intervening three months:

1.

There is a much closer and more effective working relationship between the United States Government and the Government of Viet-Nam.

2.

American military advisers have been accepted and listened to in a variety of roles.

3.

The Vietnamese National Internal Security Council (War Cabinet) has met more frequently and is playing a somewhat greater role.

4.

There has been increased freedom of debate in the National Assembly.

5.

The military command structure has been strengthened, but considerable improvement is still needed.

6.

U.S. and Vietnamese officials have embarked on joint studies of local conditions.

7.

Civic action and plans for village and hamlet defense are being made. Further coordination and better implementation are needed.

8.

Provincial Councils are being created. It is too soon to judge their usefulness.

9.

There have been increases in military salaries and benefits.

10.

A wide range of sound measures have put the economy on a sounder basis.

11.

A National Economic Council has been formed and has commenced examination of government development plans. Its activities will be slow and cautious.

12.

The effectiveness of military intelligence has been greatly increased.

13.

Flood relief and rehabilitation have been carried out with good effect.

14.

The President has increased his travels to the provinces.

15.

Public information has definitely improved.

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Q. №11. (Unclassified) Do the Attorney Generalʼs remarks10 at the Saigon Airport represent the policy of the Administration? Were they cleared by the President or the Department of State in advance?

Answer: (Unclassified) The Attorney General received intensive briefings on the situation in Viet-Nam before his departure for the Far East. He made a stop in Viet-Nam at the Saigon Airport only for purposes of refueling his aircraft. His remarks there were informal and consisted largely of answers to questions from the press. In these circumstances there was no formal clearance of his statements. However, his remarks reflect the policy of the Administration toward Viet-Nam.

Q. №12. (Unclassified) To what extent are our allies and other non-Communist states contributing to and supporting the combined U.S.-Vietnamese effort to preserve the independence of the Republic of Viet-Nam?

Answer: (Unclassified) Since it became independent Japan, France, Germany and Australia have made available to Viet-Nam various forms of aid whose total value is about $100 million. In addition there have been other programs involving students, teachers, technicians, commodities and equipment from these countries as well as from Canada, the United Kingdom, New Zealand, China, Malaya, India, FAO, WHO, ILO, ICAO, UNESCO and UNTAO.

The United States is, moreover, presently trying to stimulate expanded Free World aid to Viet-Nam as evidence of financial and political solidarity with Viet-Nam in its struggle.

Q. №13. (Unclassified) What precisely is the present attitude of the Indian Government toward the conflict in Viet-Nam? Heretofore, India has appeared to observe a strict and uncritically neutral role in its function as Chairman of the International Control Commission for Viet-Nam. I would like to know whether this continues to be the case.

Answer: (Unclassified) India, as Chairman of the International Control Commission for Viet-Nam, has, according to its lights, sought to play an impartial role dealing with the problems of Viet-Nam as they relate to the Geneva Accords of 1954. (End Unclassified)

Q. №14. (Unclassified) What is our intelligence estimate of the possibility that the Communist bloc will escalate the conflict in Viet-Nam above the level of subversion and guerrilla warfare? (End Unclassified)

Answer: (Secret) The Communist objective remains that of eliminating United States influence and presence from Viet-Nam and of replacing it by Communism. They have so far maintained coordination [Page 231]within the Communist bloc in their attempts to attain this objective. While the tempo of Viet Cong activity is likely to increase in Viet-Nam, there seems little prospect at present that the pattern of this activity will change quickly and drastically.

In looking further it must be remembered that Hanoi and Peking are more militantly revolutionary than Russia and consider their interests to be more directly involved in Viet-Nam than Russiaʼs.

If Viet-Namʼs efforts to defend itself are more successful, Hanoi, with military forces of 300,000 available, will be strongly tempted to increase the strength of its attacks. To Hanoi the struggle is at least as much a struggle for national reunification as an ideological struggle. It has largely committed its prestige to this struggle.

However, the following factors are likely to deter an overt escalation by North Viet-Nam in a situation where South Viet-Nam is defending itself with increasing success:

1.

Hanoi would not welcome the presence of a large number of Chinese Communist troops in North Viet-Nam. China is the traditional enemy. North Viet-Nam does not want to become another Chinese sphere of influence.

2.

North Viet-Nam fears Free World retaliation.

3.

Hanoi desires to retain some latitude of action by playing off Moscow and Peking.

4.

Moscow might increase its military aid to Hanoi, but would probably prefer to see a conference on Viet-Nam rather than a full scale war m Viet-Nam, an area which Russia probably does not consider vital to its interests.

5.

There appears to be some Communist belief, particularly in Moscow, that even if South Viet-Nam is able to resist temporarily, it will, in the long run, fall to Communism.

If Viet Cong success increases, the present guerrilla struggle will be likely to move up the scale, in the pattern of Communist wars of “national liberation”, towards open war involving increasingly large troop formations. A “liberated” area and “liberation government” would probably be established. However, the formation of a “liberation government” would not be an automatic signal for Communist military escalation.

It appears more likely that the present pattern, a long, wearing struggle, will continue. The South Vietnamese effort, with U.S. support is designed to meet this challenge. Time is not necessarily on the side of the guerrilla, as shown in Greece, the Philippines and Malaya. The Viet Cong probably must escalate their guerrilla war to open war in order to conquer the country. If they should decide to escalate to larger, open formations, it will be a particularly dangerous time for them. On the other hand continuation of present guerrilla destruction risks angering the peasant without winning the war. Since Communist propaganda carries limited conviction in Viet-Nam, where so many [Page 232]have already lived under their domination, the Viet Cong guerrillas must operate through fear and coercion as well as through propaganda and persuasion to obtain men and food. The South Vietnamese counter-guerrilla strategy seeks to save the peasant, conserve his property and deprive the Viet Cong of their needs so that they will have to take increasingly cruel measures to obtain food, arms and men. (End Secret)

Q. №15. (Unclassified) I find myself unclear as to the Soviet Unionʼs attitude toward and role in the Viet-Nam conflict. I would like an assessment of that question. More specifically, I would like to know whether Russian and Czech arms are being made available to the Viet Cong-if so, whether the levels of such assistance are appreciable or token.

Answer: (Begin Secret) As indicated above the Soviet Union for the present probably desires to avoid an enlargement of the struggle in Viet-Nam to the point which would increase the likelihood of a major war. If, however, South Viet-Namʼs defensive efforts become more successful, the USSR might feel constrained to redress the balance by increased aid to North Viet-Nam in order to reduce the likelihood of a large scale Chinese Communist intervention. Moscow cannot appear to oppose Communist expansion in underdeveloped areas.

While the Soviet attitude towards Viet-Nam will be largely influenced by developments in Laos, as well as by its own relations with Communist China and by developments on disarmament and in Berlin, it seems probable that at present Moscow does not want any major escalation in Viet-Nam. This attitude will not prevent the continuation of Russian and Communist bloc military aid to North Viet-Nam.

Communist bloc military aid to North Viet-Nam has been large and effective. However, the Viet Cong have sought to avoid the use of Communist manufactured arms in South Viet-Nam. (End Secret)

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