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Inquiry ended without justice
Army substantiated numerous charges - then dropped case of Vietnam war crimes
By MICHAEL D. SALLAH and MITCH WEISS
BLADE STAFF WRITERS
c THE BLADE, 2003
Seven years after leaving Vietnam, James Barnett broke down.
Haunted by the killing of civilians, the former Tiger Force sergeant invited Army investigators to his home to offer a surprise confession.
He admitted to shooting a young, unarmed mother. He admitted to his platoon's cruel treatment of villagers.
He asked for immunity from prosecution, but in the end, he never needed the legal protection.
No one would.
Though the Army substantiated 20 war crimes by 18 Tiger Force soldiers committed in 1967 - with numerous eyewitnesses - no charges were filed.
An investigation that should have brought justice to the longest series of atrocities by a U.S. fighting unit in Vietnam reached the Pentagon and White House but never a court of law - or the American public.
Instead, the case was hidden in the Army's archives, and key suspects were allowed to continue their military careers.
By the time the investigation was over, a justice system that promised to prosecute war criminals ended up protecting them.
At every turn, the system failed.
An eight-month investigation by The Blade, based on thousands of military records and interviews, shows:
Commanders knew of the platoon's atrocities in 1967 but refused to investigate.
Soldiers went to Army commanders in 1967 to complain about the killing of civilians, but their pleas were ignored.
Army investigators learned about the atrocities in February, 1971, but took a year to interview witnesses.
Two Army investigators pretended to investigate while encouraging soldiers to keep quiet so they wouldn't be prosecuted.
By the time the investigation was completed in June, 1975, six key suspects were allowed to leave the Army - escaping the reach of military prosecutors.
When the Army's final report reached commanders in 1975 for possible prosecution against four remaining suspects, investigators gave inaccurate and at times, incomplete information.
In three cases in which the final report accused people of "murder," commanders took no action.
Investigators found that five other soldiers carried out atrocities, but their names were never mentioned in the final report.
Four military legal experts who reviewed the report for The Blade questioned why the case was closed so abruptly.
"There should have been a [military grand jury] investigation of some kind done on this," said retired Lt. Col. H. Wayne Elliott, a former Army law professor. "I just can't believe this wasn't a pretty high profile thing in the Pentagon."
41/2 year investigation by Army began in 1971
In a story that has never been told, the elite platoon torched villages, executed prisoners, and slaughtered an untold number of unarmed civilians between May and November, 1967, according to Army records.
In recent interviews with The Blade, former platoon members say hundreds may have been killed - in violation of military law and the 1949 Geneva Conventions.
The volunteer, 45-man unit from the 101st Airborne - created in 1965 to find the enemy in the jungles - was sent to South Vietnam's Central Highlands to help stop the North Vietnamese from taking over the region.
But as the war intensified, soldiers in the platoon began to indiscriminately kill villagers.
The atrocities were kept secret until 1971, when the Army began an investigation that lasted 41/2 years - leading agents to 63 cities in the United States, Germany, Korea, and the Philippines.
More than three decades later, Army spokesman Joe Burlas said he couldn't explain the breakdowns in the longest war-crime case from Vietnam.
But one thing is clear: evidence of the atrocities reached the top levels of government.
Summaries of the Tiger Force case were forwarded in 1973 to President Richard Nixon's White House and the offices of Secretary of Defense James Schlesinger and Secretary of the Army Howard "Bo" Callaway, according to National Archives records.
Through his secretary, Mr. Schlesinger declined to comment. Mr. Callaway said he didn't remember the investigation.
Beyond the military hierarchy, there was another safeguard in place where the case could be heard.
A special U.S. panel was created in the wake of the 1968 My Lai Massacre - the killing of about 500 Vietnamese civilians by an Army unit - to review war-crime cases to prevent cover-ups.
But the panel, known informally as the Working War Crimes Group and consisting of six military officers, never met, according to four members.
More than 2,000 pages of testimony - including the 1974 confession of former platoon Sergeant Barnett - were concealed in the Army's archives for years.
Mr. Barnett, who died in 2001, summed up his platoon's actions to investigators when they visited his Tennessee home: "Most of those incidents could be classified as war crimes today."
Commanders failed to halt the atrocities
Thirty-six years ago, Capt. Carl James paid a surprise visit to the Song Ve Valley.
He expected to meet the new platoon leader to talk about supplies but instead found him standing over the corpse of an elderly farmer.
There were no weapons or enemy fire in the area.
He asked Lt. James Hawkins why he killed the unarmed man, Mr. James recalled in a recent interview.
But the platoon leader could not provide an answer.
Mr. James said he admonished the lieutenant that day in July, 1967, but never filed a complaint as required by military law.
"I thought I took care of the problem by warning him," Mr. James said.
His reluctance to notify Army officials was one of the first known failures by commanders to investigate Tiger Force's practices - and stop the killing.
Time and again, battalion leaders knew of the atrocities but failed to end them.
For example:
Harold Austin, the former battalion commander who oversaw Tiger Force, said in a recent interview his headquarters received reports that soldiers were mutilating the bodies of dead Vietnamese in early 1967, but no investigation was conducted.
Lt. Donald Wood and Sgt. Gerald Bruner repeatedly complained to superiors in August, 1967 about Tiger Force soldiers killing civilians, according to witness statements. But there were no investigations.
Capt. Robert Morin told Army officials he attended an officers' party in 1967 where several officers joked about Tiger Force soldiers drowning a farmer in the Song Ve River. But again, no investigation.
Mr. Hawkins said in a recent interview he doesn't recall being reprimanded in the Song Ve Valley for killing an elderly farmer but admitted to shooting civilians who refused to move to relocation camps.
Most commanders didn't want to pursue an investigation of Tiger Force because they feared turning up war crimes, former battalion surgeon Bradford Mutchler told investigators in 1975.
"It was something that you just kept trying to sweep under the rug and forget because you really didn't want to know if it was true or not."
Investigators didn't follow their own rules
It began with a tip in 1971: A Tiger Force soldier had decapitated a Vietnamese baby.
The statement by former Sgt. Gary Coy would spark an Army investigation that would last until 1975.
Led by a field agent in Los Angeles, the case eventually utilized more than 100 agents to interview 137 people. In the years after the 1968 My Lai massacre, military officials promised to take war crimes seriously.
But an inspection of thousands of records of the Tiger Force case shows agents failed to follow their own rules.
They were supposed to investigate as soon as a complaint was filed. They were supposed to monitor key suspects. They were supposed to track down victims.
Those procedures were ignored, seriously undermining an investigation that would turn up some of the worst atrocities of the war.
At least six suspects were allowed to leave the Army during the investigation, escaping possible court-martials. The Army could have stopped their discharges while the case was pending. Three other suspects died in battle.
While suspects were allowed to leave the Army, so were witnesses. Because it took investigators a year to act on Mr. Coy's complaint, 11 soldiers were discharged and could not be forced to testify.
Other witnesses included Vietnamese civilians. But U.S. investigators failed to go to South Vietnam to track down witnesses - a practice in such cases, according to records at the National Archives.
Thirty-six years later, The Blade went to Vietnam and found 11 villagers who knew precise details of three Tiger Force atrocities.
Even when soldiers provided clear details of crimes, investigators failed to pursue the leads.
When Mr. Barnett invited investigators into his home in 1974, the former sergeant admitted to killing a mother of a 6-month-old - but said it was on the orders of his team leader, Sgt. Harold Trout.
He said he shot her with a rifle after she was given a sedative by a medic and escorted into a bunker by Sergeant Trout.
When the sergeant and woman emerged from the shelter, Mr. Barnett said, he was told by his team leader "to grease her," he told investigators.
"I didn't feel right about it," he said, "but I thought I was doing my job when I did it. It was, to me, like any other day in Vietnam."
He identified another witness, but investigators failed to question the soldier about the case, records show. Sergeant Trout refused to talk to investigators in 1973 and declined recently to talk to The Blade. The war "happened a long time ago," he said, "and there's nothing I'd really want to say now."
Beyond the breakdowns, another aspect of the case raises troubling questions about whether Army agents went out of their way to protect soldiers.
Two former Tiger Force soldiers - including a onetime murder suspect - said in recent interviews they were encouraged by investigators not to say anything - clear violations of military law.
Dan Clint, who was not a war-crime suspect, told The Blade he was contacted for a second interview during the investigation by agent Robert DeMario.
"He said, `Hey, just do me a favor. Say that you don't remember anything, so I can get the thing over with,'" Mr. Clint said.
And he obliged the agent. During his interview with Mr. DeMario on Jan. 17, 1974, Mr. Clint said he didn't see any war crimes.
But that wasn't true.
In a recent interview with The Blade, he said a Tiger Force sergeant raped a villager, and soldiers shot civilians and prisoners who posed no threat. "The killings were unrestrained," he said.
Mr. DeMario died in September, 1984.
The other former platoon soldier who said he was told not to report any war crimes was William Doyle. The former sergeant and murder suspect in the investigation said he took the agent's advice.
Records show he was interviewed on Feb. 17, 1975, in St. Petersburg, Fla., and answered "no comment" to the question of whether he knew about crimes by Tiger Force soldiers.
But in a recent interview, he said he not only witnessed the killing of unarmed villagers but committed them.
"If you wanted to pull the trigger, you pulled the trigger. If you wanted to burn a village down, you burned it down. You do whatever you wanted to do. Who's going to say anything to you?"
He refused to give the name of the investigator who told him to stay quiet. "He tipped me off to what was going on, what they were after, and what they were trying to do,'' said Mr. Doyle, now 70 and living in Missouri.
Final report cast doubt on key cases
Despite problems in the investigation, Army agents substantiated 20 war crimes, including murders.
That means there was enough evidence to show probable cause in those cases - critical to prosecution.
But investigators gave a different version of events to commanders.
In the 1975 final report for possible prosecution, lead investigator Gustav Apsey presented incomplete or inaccurate information about the crimes - casting doubt on key cases.
For example, no one disputed that Tiger Force soldiers fired on 10 elderly farmers in the Song Ve Valley in July, 1967.
The only debate among the four soldiers who talked to investigators was how many farmers were struck by bullets.
But in the report, Mr. Apsey inexplicably said he couldn't prove the atrocity took place.
Missing from his report were the sworn statements of four soldiers who were eyewitnesses to the event.
Spec. William Carpenter: "We killed about 10 of the farmers, then stopped firing."
Sgt. Forrest Miller: "We had received no incoming fire from the village and the people in the field, about 10 persons both male and females, were shot."
The statements of the other two were basically the same: The farmers were shot without warning.
In another major flaw in the case, Mr. Apsey concluded that unidentified soldiers were involved in the attack. But that was incorrect: Lt. James Hawkins was identified by two soldiers as leading the assault.
In fact, one said the lieutenant gave the order to fire on the farmers.
In a recent interview with The Blade, Mr. Hawkins admitted he ordered the shootings.
He claimed the farmers should have been in a relocation camp and not a farm field.
"Anything in [that area] was game. If it was living, it was subject to be eliminated."
Other cases in the final report contained inaccurate information.
Investigators interviewed four soldiers who witnessed the slaughter of women and children in three underground bunkers near Chu Lai, but the final report provided misleading information.
In that report, Mr. Apsey wrote that he didn't know whether those people killed were combatants.
But every soldier who witnessed the event told investigators the people hiding in the bunkers included women and children, and no one was carrying weapons.
One witness, former platoon Pvt. Ken Kerney, said in a sworn statement there "were no signs the people killed were linked to the enemy."
He said he watched as the children ran into the bunkers but never brought an interpreter to the entrances to order them out.
In Army records of the incident - not mentioned in the final report - Private Kerney told investigators that Tiger Force was ordered to go to the village.
As platoon members arrived, "all the people ran into the bunkers. No interpreter was available to talk to the people. But Tiger Force knew what to do."
They hurled grenades in the openings.
A search later of the bunkers "failed to show any sign of Viet Cong" activities or other links with the enemy.
Two other war-crime allegations substantiated by Army investigators were never mentioned in the final report: a shooting attack on several unarmed villagers near Chu Lai, and the killing of two partially blind men in the Song Ve Valley.
In a recent interview, Mr. Apsey said he couldn't explain why the report contained inaccurate information.
"When I think about it now, it bothers me. I screwed up. I don't know what else to say," he said. The killing of women and children in the bunkers was "a war crime. There's no doubt about it. I don't know why I wrote what I did."
He said he didn't try to compromise the investigation. "I would never have done that," he said.
He said prosecutors would have had difficulty pressing charges in most of the war crimes because too much time had lapsed and the statute of limitations had expired in some cases.
But records show that witnesses were still available to testify in 1975, and in murder cases, there is no statute of limitations.
'Political timing' cited in breakdown of probe
Though the final report contained inaccuracies, Mr. Apsey presented three murder cases to commanders for possible prosecution - one naming Tiger Force commander James Hawkins.
But even then, no charges were filed.
Not even an Article 32 hearing - the equivalent of a military grand jury - was held, the first step toward a court marital.
In the final report, Mr. Apsey wrote:
Platoon leader Lt. James Hawkins "murdered an unarmed elderly Vietnamese man by shooting him in the head."
Team leader Sgt. Harold Trout "murdered an unarmed wounded Vietnamese male by shooting him several times with a caliber .45 pistol."
Former platoon Pvt. James Cogan "executed an old unarmed Vietnamese male by shooting him twice in the head with a caliber .45."
Mr. Cogan was discharged from the military by the time the final report was filed in 1975, and like so many other suspects, he was outside the jurisdiction of a military court.
Under military rules, it's up to commanding generals of each soldier to decide whether to prosecute.
Army spokesman Joe Burlas said that's what happened in this case. Commanders chose not to press charges based on the evidence.
But Mr. Hawkins said that's not what happened to him.
He said his case was decided by powers far beyond his commander, Maj. Gen. William Maddox.
In a recent interview, Mr. Hawkins said he was summoned to the Pentagon in November, 1975 - five months after the final report was completed. By his side was General Maddox.
He said they were presented a legal "brief" that stated the case was closed. He doesn't remember who showed him the document but said he recalled the contents.
"What they said was, `Yep, there's wrongdoing there, and we know about it. But basically it's not ... in the best interest of this, that, and the other to try to pursue this.' It seemed like that was the conclusion of the thing," he said.
He said the Tiger Force investigation was "a big deal, but it was kept awful quiet. This was a hot potato. See, this was after [My Lai], and the Army certainly didn't want to go through the publicity thing."
General Maddox died in 2001.
Former Sergeant Trout refused to comment on his case.
Regardless of who decided not to press charges, Mr. Burlas said the murder cases would have been difficult to prosecute for several reasons, including a lack of access to crime scenes and physical evidence.
But for several years leading to the final report, investigators could have traveled to the crime scenes in South Vietnam and interviewed witnesses.
In addition, physical evidence, such as a corpse or weapon, is not essential in these types of cases, according to military legal experts.
The lead investigator, Mr. Apsey, now retired and living in Washington state, said he doesn't know why commanders never filed charges against Mr. Trout and Mr. Hawkins.
He said part of the reason may have been because the final report was filed two years after the peace treaty was signed between the United States and North Vietnam. The report was also completed two months after the collapse of South Vietnam.
"I knew this damn thing wasn't going to go anywhere," he said. "The point is, the political timing was wrong."
Mr. Apsey said throughout his investigation his superiors were concerned about the media discovering the Tiger Force case.
"Let me tell you this: At the time, it was considered a class-one urgency," said Mr. Apsey, who added that field agents were required to interview witnesses within 24 hours of being notified.
The four experts who reviewed the final report for The Blade said the Army may have been able to successfully press charges in some allegations that were substantiated, but others would have been difficult.
William Eckhardt, the lead prosecutor in the My Lai case, said the Army may have been reluctant to bring such a case to court because of the publicity.
"Maybe their thinking was they didn't want any more My Lais," he said, adding that even that case was a challenge to prosecute because of reluctance of soldiers to testify.
"If you look at the incredible struggle that the government went through with My Lai, the fact that some of this wasn't pursued doesn't surprise me.''
But it didn't stop the Army from pressing charges in other atrocities.
Of the Army's 242 war-crimes investigations in Vietnam, a third were substantiated, leading to 21 convictions of charges ranging from beating prisoners to murdering civilians, according to a review of records at the National Archives.
Ten soldiers received prison terms ranging from 30 days to 20 years, though many sentences were later reduced.
But in the case of Tiger Force, there was no punishment. In fact, three suspects were later promoted.
Captain James, who was accused of failing to report a war crime, became a major. Mr. Trout left the Army in 1985 as a sergeant major.
Mr. Hawkins was promoted to major and went on to serve as a civilian flight instructor at Fort Rucker, Ala., after retiring in 1978.
White House kept tabs on investigation
Much is still unknown about the Tiger Force investigation.
Dozens of case records are missing from the National Archives, and the Army refuses to release its own reports, citing privacy rights of the former soldiers.
What is known is that summaries of the investigation were sent to the White House between 1971 and 1973, records show.
While President Nixon was in office, his chief counsel, John Dean, ordered the Army in May, 1971, to file weekly updates on the status of war-crime investigations - 10 cases including Tiger Force. By 1973, the reports were sent monthly.
A memo on March 2, 1973, gives a description of the case, with five suspects and other "unidentified members of Tiger Force" under investigation for crimes ranging from murder to body mutilation.
The same document was routed to the secretary of defense's office from the secretary of the Army's office.
But in June, 1973 - five months after the U.S. pullout - the Army stopped sending updates of cases to the White House.
A memo from Maj. Gen. DeWitt Smith to other Army officials noted the "news media and public interest in the subject have waned with the U.S. disengagement in Vietnam."
He went on to state the regular sending of reports "unnecessarily continues to highlight the problem monthly."
Mr. Dean, who left the White House in April, 1973, said in a recent interview he didn't recall the Tiger Force case but was not surprised the investigation was dropped. "The government doesn't like ugly stories," he said.
Former Secretary of the Army Howard "Bo" Callaway also said he did not recall the case but said he would have taken the allegations "very seriously."
"I guarantee you there'd be no sweeping under the rug."
With the Tiger Force investigation still in progress, Gerald Ford took over the presidency after the resignation of Richard Nixon in August, 1974.
Within five months, there was only one ongoing war-crime case: Tiger Force.
At the time, President Ford was urging the American public to "heal the wounds of Vietnam."
In April, 1975, North Vietnam captured Saigon, reuniting the country. By November, the Tiger Force case was closed.
A spokesman for former President Ford said he declined to comment on atrocities in the Vietnam War.
Dr. David Anderson, a Vietnam veteran who edited the book, Facing My Lai, said a new political era had begun by 1975, with economic issues overshadowing the war. "No one wanted to hear about war crimes then," he said. "It would have been embarrassing."
