LEGAL PROBLEMS AFFECTING ATTACK ON VCI

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000200410001-0
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 29
• Document Creation Date: December 16, 2016
• Document Release Date: January 26, 2005
• Sequence Number: 1
• Publication Date: July 29, 1968
• Content Type: DISP

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L.
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CLASSIFICATION
PROCESSING ACTION
- 1~ , 7 CH
AT
LL.. ,
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S E C R E T
MARKED FOR INDEXING
TO
Chief, Vietnam Operations
_
NO INDEXING REQUIRED
INFO.
ONLY QUALIFIED DESK
CAN JUDGE INDEXING
Chief of Station, Vietnam
?
MICROFILM
S BJ T PHOENIX
(Legal Problems Affecting Attack on VC1
ACTION REQUIRED ? REFERENCES
Reference: FVST-21,151
1. :Forwarded under separate cover are three (3) copies of
final report on National Security Legal
Problems - Summary and Appraisal, and his.memorandum of trans-
:.ittal dated 25 July 1968, subject: Report - National Security
Le--al Problems.
2 Since the compilation of this report, one major,
.. ;z .fnean new factor has begun to loom--that of some sort of
:,v e ,'ettlemont, cease-fire, and with respect to the le al
;, gems affecting the effort to destroy or neutralize the V'CI,
:_e end of the wartime emergency conditions in which the present
opal, security decrees are predicated. This fact recently
been identified and viewed with alarm by general Tran Thien..._.
:. eri, Minister 'of Interior. He strongly believes that new
,a islation is required, under the Constitution, to enable the
,public of Vietnam to deal effectively with the Communist-
sponsored clandestine or covert political action, propaganda and
suiversion,which must inevitably follow an end to open hostilities.
3 We believe this is essentially 4 Vietnamese task, for
which legal assistance is not required. On the other
hand, assistance will be required(i.e. -will continue to
be required , to assist the GVN in countering this expected new
phase of the'-insurgency,
Attachments:
AUb As stated, U.S.C. Datsd~g;__
Distribution:
- Chief , Vie`,i nag Operations Exc- ,!s1 t; ,r F.n+~cn3tiC
,~~urrs'h;,g and
d
dscl.; tlt?:,lion
copy
iY
CROSS REFERENCE TO
DISPATCH SYMBOL AND NUMBER
DATE," q3 1 JUL 196
20 July 1963
NQS FIL NUMBER
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S E C R E `s'
25X1
25X1
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q'1i 1`dl
25 July 1968
MEMORANDUM
SUBJECT: Report - National Security Legal Problems
1. Attached is subject report, dated July 1968,
This is a progress report on the effort to gather
information and data on the legal processing of
Civilian Security Suspects, to correlate and analyze
it, and to make recommendations for improvement. In
addition, it serves as a memorandum for the record
setting fcrth essential background information which
will be useful to those who continue this effort.
2. The legal aspects of the problem are fairly
clear now. The principal object of concern and
emphasis should no longer be the judicial system,
but rather the Security Committees and the Special
~~olice,
3. The'setting up of a now Military Field Court
.n IV Corps and advising on matters relating to the
military courts can readily be handled by the :Staff
Judge Advocate, MACV. We have worked with them in
,assembling and organizing original data on the pro-
cessing of CSS's through the military courts,'. They
are in a position to continue. that wo4k and keep the
information up to date,
'1. The principal remaining tasks are (a)', to
strengthen the facilities and performance of the
Special Police in the investigation and documentation
of CSS cases, and (b) to supervise and improve' the per-
formance of the Provincial Security Committees' These
fall within the realm of management, administration and
police techniques, The Ministry of Interior is the
responsible GVN agency. The appropriate U.S. staffs
which work with Interior. should develop and execute
plans to accomplish the objectives outlined,
PO nn
bupy
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5., The most arduous, time consuming and essential _
work to date has been the acquisition and assembly of
meaningful and consistent facts and statistics as to what
is happening (and not happening) to CSS?s.in the legal
processing system. The staffs which work with Interior
have the manpower and will be ina much better position
than a legal consultant to obtain such information,
principally from the Special Police and the Security
Committees. SJA/MACV can obtain needed information on
the military courts from the Directorate of Military
Justice,
6. A full time U.S. legal consultant or employee
is not essential for the further prosecution of this
program.,
25X1
Legal Counsel
ft
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NATIONAL SECURITY
LEGAL PROBLEMS
SUMMARY AND APPRAISAL
COhfItIEN71AL
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SUMMARY AND APPRAISAL
CONTENTS
Page
INTRODUCTION II
FINDINGS AND RECOMMENDATIONS A'
REPORT. 1-17
GENERAL COMMENTS 1
INVESTIGATIVE WORK 2
DETAINEES-IMPROPER RELEASE 4
LEGAL SCREENING 5
SECURITY 'COMMITTEES 7
MILITARY 'COURTS 8
EVIDENCE: 15
RELEASE PROCEDURES 15
CORRUPTION 16
CONCLUDING REMARKS 17
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This report is a sequel to the Handbook-National
Security, prepared last December, which was a first attempt
at summarizing the basic existing laws and procedures in
the Republic of Vietnam connected with the apprehension,
custody, screening, administrative detention, and trial
of civilians whose activities are deemed to endanger the
National security.
An effort has been made during the last. three months
to examine further the operation of the system for legal
processing of Civilian Security Suspects (CSS's), in order
to inform the responsible officials and to make findings
and recommendations for the speeding up. and improvement of
this vital activity.
It is of course impossible to analyze the legal
processing system without knowing what is happening in it.
Most of the past twelve weeks has been consumed in obtaining,
correlating and tabulating such facts. This is a large and
difficult job, as there are no readily available sources.
Statistics are fragmentary, contradictory and often do not
.treat CSS's as a separate category. Conditions vary through-
out the country.
Based on the produce of research to date, it is possible
to identify the key areas of the legal processing system
which need to be improved and to make certain specific
recommendations, particularly as to additional police in-
vestigative resources. and as to the military court system.
No magic solutions have been found and none should be
expected, despite the understandable pressure and desire to
make the problems of.1egal processing disappear. Instead,
a great deal of hard 'slogging lies ahead, in an unexciting
and time consuming effort to improve administration and
management. .
The oft-voiced complaint that the "antiquated judicial
system" of Vietnam is responsible for the inadequacies of the
legal processing of Civilian Security Suspects is not borne
out by this investigation. Nor is the contention that the
judicial system is hopelessly bogged down with CSS cases.
The data obtained in'recentweeks indicates that only a
II
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small percentage of CSS cases are processed through the
judicial system; the great majority are handled by
administrative determination. This appears to be
necessary to a considerable extent in the existing
emergency and is consistent with measures employed
elsewhere with success and substantial justice.
The detainee problem is old and vexing, with many
roots. The frustration of some U.S. officials has led
them to blanket condemnation of the legal processing
system. As will be shown below, this is not a proper
view. The avenues where energetic action should be
channeled are indicated.
. This report does not attempt to devise a compre-
hensive legal program in the field of national security,
to outline a recodification and legislative program, or
to evaluate the constitutional and political issues
which will be involved in such an endeavor. Important
work is being done along those lines by Committees of
the National Assembly and by USAID, Public Administration
(Legal).' The environment for those activities will im-
prove greatly, once the present severe threat to the
national security of the Republic of Vietnam has subsided
and the outlines ofithe future are clearer.
25X1
Attorney at Law
Saigon, Vietnam
July 1968 '
CONFIDENTIAL
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FINDINGS AND RECOMMENDATIONS
I. The existing laws and procedures in Vietnam,if followed,
are generally adequate to deal with the Viet Cong menace.
II. Pressures are being exerted on the GVN, in the National
Assembly and in the media, to make modifications in the
above institutions, for constitutional and political
reasons.
III. The existing special and emergency institutions and pro-
cedures sh
ld
ou
not be doneithl
away w unti clearly
workable alternatives are provided,
IV. The central problem in the legal processing of Civilian
--- -'-A-.- LI t a 1, L VC : duuquaze
qua i ie personne an goo managemen prat ices.
V. The most overburdened and undermanned component of the
system, and the one most heavily involved in the le
l
ga
processing, is the Special Police. Its proper functioning
is essential to the correct and expeditious consideration
of cases.
VI. A considerable additonal number of investigators must be
y
e pe
e
V11 i ti. voiice. some of these
slow d be detailed to the rovinces, ut an adequate
mobile pool of investigators should be kept in Saigon
or other central .cations , to be sent out temporarily
to points of greatest congestion in order to clear up
backlogs of detainee cases.
VII. Procedures for the preparation, handling and transmittal
of in ormation and, i es , o e use in the ega process-
ing o security suspects, nee o e improve his is a
mat -er o - e icieni an systematic prat ices. A training
program in such techniques should be instituted for super-
visory personnel of the Special Police.
VIII. The Improper Release of detainees can best be combated by
early documentat77' 17 17,
ion of P. case, with dup icate copies o
other concerned echelons or organizations, stan ar ized
and uni orm proce ure or risoner a ainee) Accounta-
bility should be developed. Proper maintenance and
marshalling of information on security suspects is the
necessary basis for any effort to curb Improper Release.
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IX. To accelerate and improve the Legal Screening of
detainees, the Government of Vietnam (Minister of
Interior and Prime Minister) will need to provide
systematic and positive direction to the Province
Chiefs and the police in the Provinces. Periodic
visits by representatives from Saigon will be
needed.
X. The Provincial Security Committees (PSC's) are the
principa an the key e erative body'' ac ive in
the ega1 proces,s ing o C YS_ T s. Their performance
needs to be improved an speeded up. Investigation
should e made to etermine o what extent assignment
of work to assistants and the addition of adminis-
trative staff would assist in their functioning.
XI. The Security Committees should be closely monitored
by the Minister of Interior, to assure that they are
meeting regularly and functioning properly. Periodic
reports should be required. These should be reviewed
carefully, and inspection visits to the Committees
should be made from the Ministry.
XII. The establishment of subsidiary "Security Committees",
to operate at the District level, should be investigated.
XIII. Standardized categories of "Most Wanted" security of-'
fenders should be developed. This will improve and
speed up legal screening.
XIV. The membership and procedures of the Security Committees
should be changed, as conditions in Vietnam permit or
require, to give a larger role to civilians and to afford
more legal safeguards to the accused.
XV. It is preferable, to try a CSS in open court, if poggibie,
and convict him of an offense against the national se-
curity, rather than detain him by Security Committee
procedures; but it is much more difficult and time con-
suming.
XVI. The Military Courts are not presently overburdened with
Civi ian ecurity Suspect cases. This is largely clue
to aci of referral o- cases o the courts, principally
by the Security Committees.
XVII. More referrals to the courts will result from better
police investigative work and rom speeding up of Legal
creeping an ecurity ommlt ee activity.
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XVIII. Important VCI can often be prosecuted in court on
easily proven criminal charges, such as Draft
Evasions This type of approach should be considered
where it will be difficult to prove an offense
against the national security.
XIX. The new Military Field Court established in Saigon
this year is functioning effectively in the trying
of CSS cases.
XX. A new Military Field Court should be organized in
Can Tho, to travel in IV Corps specializing in the
trial of security cases. It will need,to be sup-
ported by an active program aimed at improving and
expediting the: investigation and referral of cases.
XXI. No new Military Field Court should be established at
this time in Iorps. Rather, the of or t ere s ould
be to reha i i.ate and strengthen the existing two
military courts., and to speed up processing by the
Provincial Security Committees.
XXII. The situation should be studied further in II Corps,
to s-Goi su i.cien re errals o security cases to
the military courts can be developed so as to justify
the organization of a new Military Field Court there.
XXIII. Better procedures should be developed for the con-
ditional release of CSS's who are serving sentences
or detention terms and for the monitoring of their
progress. This would be a long range endeavor.
XXIV. The Special Court, which tries cases in the area of
rrupt
staffing its organization so as to improve and speed
up the processing of CSS's.
itary
men as Judgos and_kfosecutors. ho return of these
exper onco mi a,Py- awyers to the Directorate of
Military Justice will materially assist the DMJ in
XXV. The success of the program to improve legal processing
-
emphasis given-it.- y t e responsible high a icials of
the U.S. and Vietnamese Governments.
will be
directly commensurate wit the priori y and
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REFERENCES TO REPORT
Finding Paragraphs Finding Paragraphs
1.
1-5, 54
XIV.
28
II.
1-5
XV.
39
III
5
1
2
.
-
XVI.
-37
3
IV.
6
XVII.
32, 37, 44
V.
7-10, 55
XVIII.
40
VI.
11, 56
XIX.
30
VII.
12, 47, 48,
56
XX.
42-43
VIII.
14-15:
XXI.
45
IX.
20
XXII.
46
X.
24-25, 32,
33,
35,
XXIII.
48
36,.38
XXIV.
52, 53
XI.
25
XXV.
57
XII.
17
XIII.
19
CSS - Civilian Security Suspect
DMJ - Directorate of Military Justice
PSC - Provincial Security Committee
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1. The system of laws and procedures in the Republic
of Vietnam for dealing with offenses against the National
Security, while naturally far from ideal due to the un-
favorable conditions under which it has had to develop, is
basically adequate to deal with the Viet Cong menace.*
This belief has been reinforced by a study of legal measures
used in Malaya and Singapore during the "Emergency" and
those in force there now.
2. Pursuant to constitutional provisions, the Parlia-
ments of Malaysia and Singapore, having found the existence
of a substantial threat to the national security, have
passed laws to control the danger. Some of the most im-
portant provisions have to do with administrative detention
of subversive elements. As with the Security Committees in
Vietnam, a detention order may be issued, for a maximum
period of two years. 'Also, as in Vietnam, arrests may often
be,made in such circumstances without a warrant, and the
suspect held for as much as a month during investigation,
provided certain approvals are obtained from higher echelons.
In addition, during the time of extreme stress at the end of
the Japanese occupation, military courts were used for the
trial of civilian security offenders. Since that time,
trials have been had in the civilian courts, which were
carefully organized and nurtured by the British and able to
handle the work effectively, especially since the number of
such cases has been relatively small.
3. The above described legal processes for dealing
with insurgency, developed by'the British and carried on by
the new governments, do not appear to constitute an excessive
or oppressive use of the police power of the State in re-
lation to the subversive threat, and have not prevented those
countries from developing in a more democratic manner than
other countries in Asia faced with similar or even lesser
dangers.
4. It_seems that administrative detention, on the
recommendation of Security Committees, and trial of Civilian
Security Suspects (CSS's) by military courts, are measures
which have been justified and?even`'necessitated by the severe
threats to the internal security of Vietnam and the nascent
state of the new civilian court system.
*Handbook-National Security (Dec. 1967), p.9,'para 6a; p.21
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5. The present situation in Vietnam is one of heightened
uncertainty. Change and transition are likely in the legal
field, as the result of political and military developments.
As the National Assembly and the civilian court system improve
their organization and more effectively administer and carry
out their responsibilities under the new Constitution, they
will assume a more authoritative role in the governing of the
country. The Ministries of Interior and of Defense should then,
and with some relief, concede to the aforementioned instrumen-
talities of government more of the responsibilities which the
Ministries have been bearing. This process must be gradual
and can begin with the substitution of civilian for military
personnel in certain institutions and processes, as will be
suggested below. In no event should the GVN make precipitate
or inadequately considered changes which will undermine its
ability to deal promptly and effectively with the menace of
insurrection.
6. While existing legal institutions and processes have
been generally adequate in concept tocbal with the situation
facing the country, the organization, operation and adminis-
tration of them needs substantial improvement. It is the
familiar story of wartime dislocation: Insufficient trained
personnel arid. lack of systematic procedures,, planning and
management. The major effort on the legal front should be in
this area. Some specific suggestions will be made below.
INVESTIGATIVE WORK
7. The sine qua non for efficient legal processing of
Civilian Security Suspects, and the key to prompt and proper
handling of their cases by Security Committees or military
courts, is good investi ative work and preparation of the
legal case'f ile. Without this, no committee or individual,
no matter how high level'or competent, can promptly and
properly screen suspects in jails and detention camps or
intelligently and justly decide cases brought before Security
Committees, military courts, or Special Committees (para 21
below).
8. The vital importance of this police work is being
further underscored by. the reports.now coming in from the
Provinces in answer to, our requests for facts and statistics
on legal processing. These initial reports indicate that the
great majority of detainees are released by the District or
Province Chief and only a relatively small proportion of cases
are referred to the Sect-Lrity Committees or military courts.
The collection, collation, preservation and presentation of the
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evidence on which these releases or referrals is made are
largely a police responsibility.
9. The release of a detainee as an Innocent Civilian,
or the holding of him for further legal action, and the
final disposition of his matter, all depend on developing
and marshalling facts and information. Our research in-
dicates that there are weaknesses in investigation and in
the preparation and transmittal of the files on cases, With
Civilian Security Suspects, it is normally the duty of the
Special Police to do this initial investigation and to make
out a preliminary case, or show the lack thereof. If the
case is referred to a military court for trial, the Military
Judicial Police then perform needed additional investigative
work for the court,
10. Apparently, the Special Police are very short of
qualified investigative personnel. From this situation
flows a series of undesirable consequences; failure to
identify VC Infrastructure (VCI) members, improper release
of detainees, inability to identify and release Innocent
Civilians, slowness in referring cases for further legal
action, overcrowding of detention facilities, and general
congestion and stagnation .of the detention and legal pro-
cessing system,
11. There is urgent need to provide additonal trained
Special Po ice invest~ga ors an suppor i.ng c erica e p,
ome o t ese s ou sen a then rovinces o rein orce the
staffs there, but a substantial pool of investigators should
be maintained centrally, probably in Saigon. These men would
be sent out to help clear up backlogs as they develop, such
as where military operations or sweeps have produced large
numbers of detainees, Naturally, the program must also be
given priority and strong direction and impetus from Saigon,
so that the investigators (not synonymous with Interrogators)
will prosecute their work diligently and be responsive to the
needs of the committees and courts Which handle the cases. It
has been reported that the Special Police recently instituted
a requirement for weekly radio and monthly written activity
reports from the field. Inspection teams are also to be sent
out periodically,. These are moves in the right direction.
12. In addition to the provision of more trained inves-
tigators, emphasis must be placed on systematic and orderly
preparation, handling and tran,smittAl of information and files -
in a word, good management and: office practices. Naturally,
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all this will not come about overnight, but the ship must
be steered promptly in that direction. A training and
management program in such techniques should be carried on
for supervisory personnel-of the Special Police.
13. The military judicial police have the responsi-
bility to perform investigative work on cases which have
been referred to the military courts. If the volume of
civilian security cases referred for trial should be sub-
stantially increased, this body would need to be augmented.
In the meantime, there is the question whether they should
continue to be under the direction of the Joint General
Staff or should be put under the Directorate of Military
Justice (DMJ), as the latter office desires; This would
make them more responsive to the DMJ. The making of any
recommendation on this subject is left to the Staff Judge
Advocate, MACV.
DETAINEES -- IMPROPER RELEASE
14. A particularly grievous problem has been the
reported improper release of security suspects by District
and Provincial authorities, To put this matter in proper
perspective, one must recognize that a certain amount of
evidence need exist in order to support the continued
custody of an individual. At times, too, the capturing
authority has made a mistake and taken in its net some fish
that should be thrown back into the sea. Honest differences
of opinion may arise as to the importance or practicality of
holding certain individuals, particularly where adequate
detention facilities do not exist. But withal, there are
undoubtedly.' numerous cases of improper release, due to admin-
istrative inefficiency, or motivated by fear or favor.
15. Improper release of detainees is greatest in the
early stages of detention, shortly after the individual is
received by the civil authorities. BAs a file develops on him
and is disseminated, and as he is passed on to higher au-
thority at Province and Region level{, it becomes more difficult
for him to be released without considered and documented
official action. It is important, therefore, to make an
official record of his case at the moment he is received by
the civil authorities and to report the custody promptly to
higher.''authority. There should be a system for maintaining
central records of detainees, so that releases will not go
unknown or unexplained. Periodic reports should be required.
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The better investigative resources and procedures discussed
above, and the continued development of the Provincial In-
terrogation Centers (PIC's) and District Intelligence and
Operations Coordinating Centers (DIOCC's), will also con-
tribute importantly to:the effort to curb wrongful release
of detainees, Important VCI will be identified correctly
and early and can then~be removed to a secure location for
further processing. The general problem of Prisoner Ac-
countability is being studied and more detailed recommen-
dations will be forthcoming. The creation and maintenance
of adequate records is the essence of such a system.
LEGAL SCREENING
16, Civilian Security Suspects received into the hands
of the civil authorities should be expeditiously processed
and either released as Innocent Civilians or referred to the'
Provincial Security Committee for action, (Clear cases may
reportedly be forwarded directly to a military court.) The
District and Province Chiefs are.charged with these responsi-
bilities. The processing has often been inordinately slow
and backlogs have developed, particularly where investigative
and review facilities are overburdened with large numbers of
detainees produced by military operations.
17. Provincial Security Committees (PSC's) review cases
referred to them and decide on the detainee's release, de-
tention, or referral to a military court. To assist in legal
screening, it might be desirable to have a small "District
Security Committee" operating at the District level, either
as an autonomous local. body or'as a~sub-committee of the
Provincial Security Committee, It could give him a brief
hearing anddecide on his release or recommend continued
dotention for further investigation or for action by the
Security Committee. The Province Judge, in his capacity as
a member of'the PSC, might be in charge of this program. The
Judge, or one of his assistants or Prosecutors, would parti-
cipate in the "District Committee" deliberations. This would
introduce a'legal presence at the first stage of legal
processing. "Security. Committees" at the District level have
been reported to be functioning in the processing of security
suspects, particularly in II Corps,"but we have little in-
formation as to their actual operations or effectiveness.
This should be investigated further-rand reported on.
18. Some have suggested that a magistrate do the first
legal screenings; however, perhaps a committee-is better
suited for the purpose. Often an individual official hesi-
tates to release a person who has been captured4or arrested by
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high authority; an individual may also be more subject to
pressure than a committee.
19. The conduct of legal screening will be aided by
the creation and standardization of certain categories of
Most-Wanted security offenders. This is now being worked
on by the Ministry of Interior and cooperating U.S. elements.
There could be these lists: individuals (by name), positions
(by title), and functions (by description). A person holding
a position of importance in the PRP or the NLF, thus, could
be sent automatically to the Security Committee for action.
In this connection, it should be noted that Ministry of
Interior regulations concerning the operation of Security
Committees lay down the following rules for detention of
security suspects:
Maximum of six months: Light offenders - Communist
sympathizers and dupes
Maximum of 18 months : Communist Party members active
after 1954 and at the present
Maximum of 24 months : Communist Party members active
before 1954, leaders and high
level members.
20. In addition to proper organization and administra-
tion of the effort in the Provinces and Districts, Saigon
(Offices of Prime Minister and Minister of Interior) must
periodically look into legal processing in each Province and
also examine the situation at known major points of congestion.
21. Recently, the Prime Minister ordered the creation of
"Special Committees" in all the Provinces and autonomous cities
of the country. (Circular No. 102/TT/Th.T/PCL, of 18 June 1968).
Those committees are to review the current backlogs of security
suspects awaiting legal processing.' Where a person has been
in custody for more than one month without his case being prose-
cuted before a court or brought before a Security Committee,
and prima facie evidence has not been developed against him,
the 9p c al_Zommittee may release him provisionally under
certain stated conditions. The committees are to report the
results of their work to the office.'of the Prime Minister.
22. Officials of the Interior Ministry have assured U.S.
officials that persons on whom'there is substantial evidence,
or who are on Blacklists or Most Wanted lists, will not be
released by the committees. The following steps should also
be taken with'those who are subject to release-by the com-
mittees:. careful review of the file, if any; opportunity for
cp1FIbENTIAt.
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the capturing authority to produce, more evidence; creation
of a permanent record on the suspect, with identifying
details, including photograph and fingerprints; and the making
of a written disposition of the case. Subsequent monitoring
of the conduct of the released detainee would also be highly
desirable, but probably little substantial progress can be
expected at present in this regard,
23. Apparently, the Special Committees were planned
only to make a one-shot review of detainee backlogs, and
political advantages to the GVN are expected to flow there-
from. However, their operation should be observed, and if
their work has been useful, the experience gained should be
used in future planning. These committees have the advantage
of a legal man as chairman and substantial civilian repre-
sentation. The composition is:
Judge -- Chairman
'Provincial Council or City Council Member
Province or City Official
Sector Command Representative
Police Representative
SECURITY COMMITTEES
24. The Security Committees, which function in the
Provincial capitals and the autonomous Cities of Vietnam,
are the core of the legal and administrative machinery for
control of the Viet Cong insurgency, Means must be found to
retain them for the forseeable future, despite technical
legal arguments being made against them, based on the new
Constitution.
25, Provincial Security Committee (PSC) operations
should be improved from an administrative standpoint. The
members of the PSC's are very important and busy Province
officials, As a result, they often do not devote enough time
to assure speedy and proper disposition of Committee business.
Further study needs to be made of PSC operations, to determine
to what extent assignment of work to assistants and the
addition of administrative staff would assist in their
functioning. Legal screening :of security suspects by
committee at the District level should also be considered.
As suggested above (para. 17), an adjunct of the PSC might
carry on such work. The organizational form this should take
needs to be worked out,
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26. Available statistics showing case loads and
action taken by Security Committees in II Corps and IV
Corps are set out and discussed below in paragraphs 33-
35. A special effort should be made in I Corps and IV
Corps to expedite processing by PSC's because of the
current program to remove substantial numbers of detainees
from those areas to safe detention facilities in Con Son
and elsewhere.
27. We have just obtained copies of the detailed
regulations and instructions of the Ministry of Interior
governing the organization and functioning of Security
Committees and the procedures for arrest, temporary custody,
detention, search and seizure in cases involving Civilian
Security Suspects. These have been translated and will be
studied carefully. Additional reports or recommendations
may be made as a result of that study. This is a delicate
area of inquiry and disseminations on the subject should
bear the proper.secur'ity classification.
28. As circumstances permit,?the procedures of the
Security Committees should be liberalized to give the
accused more of the safeguards he would have in a civilian
court of law. For example, the Ministry of Interior might
issue an instruction that, unless clearly impractical, the
accused be given an opportunity to appear before the Security
Committee. Also, he should not be denied the right to be
represented by counsel provided by himself. It does not
appear practical, at this stage of events, for the government
to provide counsel for detainees or to turn Committee
sessions into adversary proceedings. At some later date, it
may be feasible to alter the composition of the Security
Committees, to increase the representation of civilians thereon.
This would happen automatically if,'for example, more new
Province Chiefs should be civilians. In Malaysia, where the
Communist insurgency has been'brought under control, the
Advisory Board, which reviews-:cases and makes recommendations
as to detention of Civilian Security Suspects, is composed
entirely of civilians. The present three members are retired
pensioners.who have no.other occupation.
MILITARY COURTS
29. In order to increase' the capability of the military
court system to try Civilian Security Suspects, Decree-Law
No. 49/67 was signed 30 October 1967 by the Chief of State,
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authorizing creating of four additional Military Field
Courts. General Thieu was sworn in as President under
the new Constitution on 31. October
1967,
since which
date
he has not had the constitutional
courts.
power
to create new
30. A new Military Field Court has been organized
in III Corps and began hearing cases on 6 May 1968. It
has been active in the tr1al of Civilian Security Suspects
and has heard some 61 cases* in III Corps during the
period May-June, 1968. At the end of June there was a
backlog of 254 cases, The court will travel to Con Son
Island soon to hear cases of detainees held'there. The
activities-of this court are being monitored, to gain
experience and information which will be useful in ap-
proaching the problem in the other Corps areas,
314 The handling of security cases by the military
courts is not an isolated activity but is part and parcel
of the whole legal apparatus and procedure for dealing with
these offenders. Hence, it is necessary to have a basic
understanding of the volume, flow and disposition of
security cases in the overall legal system, before any
intelligent suggestions or recommendations can be made for
improvement of the handling of such cases by the military
courts. Particularly, we have needed to have facts as to
the caseload of the existing Military Field Courts, before
recommending the creation of additional such courts; other-
wise, we might be far off target and go to a great deal of
trouble and some expense to create unneeded courts that
would be an administrative burden,'-on the Directorate of
Military Justice (DMJ), The needed information was set
out in a memorandum of 18 December 1967 entitled "Civilian
Security Suspects -- Legal Processing" and consists
basically of the following data on the military courts and
on the Security Committees:
Backlog at beginning of period.
New cases received during period.
Cases decided during period, and their
disposition,
.Backlog at end of period.
*These "cases" involve a considerably larger number of
individuals,
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32. Considerable delay and difficulty has been
encountered in getting the needed information. However,
answers to requirements sent out are new beginning to
come in. Reports from the Provinces show that the great
majority of security suspects are processed by the police
and released by the District of Province Chief, as
Innocent Civilians or under the "Guarantee" of local
authorities or relatives. Thus, the police, without the
participation of Security Committees or the military courts,
is the government agency involved in most cases. If the
police are overburdened with work.or otherwise incapable
of properly investigating and documenting the cases, there
will be relatively few referrals to the Security Committees
and the courts, The Security Committees, nationwide,
handle a substantial number of cases, though it is
apparently a small percentage of those detained as security
suspects, as'explained above,, The military courts receive
for trial (usually from the Security Committees) a much
smaller number of such detainees,
33. Some samples of reports received from II Corps,
covering operations of Provincial Security Committees
during varying periods of time in 1967 and 19689 follow:
Province
Backlog
CSS's
Recd
Released
(Innocent
Civilians)
Referred
To Milo
Courts
Detained
By Sec,
Committee
Binh Thuan
65
371
254
3
91
Khanh Hoa
29
796
631
0
Lam Dong
106
114
i
87
108
16
10
N
nh Thuan
'
-
517
371
10
4
Tuyen
Due
C
1,238
1,073
-
63
am Ranh City
-
37
14
-
23
Totals
200
3,046
2,451
29
305
34. In view of.the weakness of statistics in Vietnam,
these figures must not be assumed to give a definitive or
complete description of the situation in the reporting areas,
much less to describe the situation in other parts of the
country. They do tend to corroborate previous reports that
in II Corps a relatively small number of Civilian Security
Suspects are being tried by the military courts. This seems
to be a matter of case referral since the military courts
there are said not to have any large backlog of such cases.
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35. A report just received covering the activities of
the Security Committees in IV Corps for the period January -
May 1968 shows the following:
Released Referred Detained
Backlog CBS's (Innocent To Mil By Sec.
Province 12/31/67 Rec'd Civilians) Courts Committee
An Giang
-
-
-
-
-
An Xuyen
-
-
-
-
Ba Xuyen
-
263
142
2
121
Bac Lieu
-
315
139
6
95
Chau Doc
118
237
17
102
Chuong Thien
-
-
-
-
-
Dinh Tuong
-
1,439
197
43
313
Go Cong
-
141
11.
-
25
Kien Giang
-
167
2
-
3
Kien Hoa
-
32
21
1
10
Kien Phong
2.1
144
-
14
76
Kien Tuong
23
55
32
2
21
Phong Dinh
-
758
363
5
46
Sa Dec
-
194
59
4
7
Vinh Binh
7
49
3
8
31
Vinh Long
-
214
175
-
-
Totals
51
3,889
1,381
102
850
These figures, although apparently incomplete, evidence a much
smaller percentage released as Innocent Civilians than in II
Corps, but the number of cases referred to the military courts
is still quite small.
36. On the other hand, a substantial (though lessening)
percentage of CBS's undergoing terms of confinement were
sentenced by the Military Courts. Public Safety Division
prison population figures show the following:
Reporting
Date
Sentenced
By Mil.
Courts
Detained-
Sec. Comms.
Totals
Oct.
1,
1967
4,498
5,668
10,166
Apr.
15,
1968
3,701
6,733
10,434
June
25,
1968
3,695
8,143
11,838
Considerable numbers of prisoners are released from time to
time through Executive Clemency (amnesty, etc.)., Those sentenced
by courts are said to be less subject to such release those held
pursuant to a PSC Detention Order.
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37. There are various reasons why CSS cases are not
referred, in large numbers, to the military courts for
trial. First is the necessity for the police to investi-
gate and document the case in sufficient detail and to obtain
evidence to support a trial in open court. The weaknesses
in this regard have been described above. It is much easier
to prepare a case for presentation to the Provincial Security
Committee. In addition, it may be that the insurge of
detainees, as a result of the Viet'Cong Tet and subsequent
offensives, has overwhelmed the police even further.
38. For the present, it may be well to-emphasize
detention by theecurity Committees, as the best way to
expedite the legal processing of detainees an clear up the
backlogs of unprocessed detainees. Persons so detained may
still e tried in the courts. This procedure is employed in
Malaysia, which has a system for "preventive detention" of
persons deemed likely to act in a manner prejudicial to the
national security. Where there is sufficient evidence of
the commission of an offense, trial is had in the regular
civil courts. If such evidence'is developed while a person
is in preventive detention, he may be tried and sentenced
if guilty; preventive detention is no impediment to trial on
criminal charges. The same appears to be true in Vietnam.
39. In spite of the additional burden of taking a case
to trial in the military courts, the effort to increase the
flow of Civilian Security Suspect cases through the military
courts should continue, for a number of reasons. It is more
in keeping with democratic processes to charge a man in open
court rather than decide his matter administratively in a
private committee meeting. A suspect convicted in court is
determined to have violated the criminal laws of the country
and hence clearly deserves punishment, while the Security
Committees engage in administrative detention -- that is,
they detain people considered dangerous to the national
security, although the commission of a crime has not been
proven. It also appears that a suspect sentenced by a court-
is less likely to be released prematurely than one detained
by Security Committee. action. Also, when peace comes to
Vietnair3 logic will favor the release of persons held in
preventive detention, but not of criminals serving prison
sentences.
40. It is by no. means easy to'try and to convict an
important member of the VC Infrastructure in open court.
Witnesses are reluctant to testify and the case may be hard
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to prove, if he does not confess and was not caught in the
act of committing a crime. To facilitate prosecution, we
have investigated the possibility of increased use of
charges of Draft Evasion, Desertion from the armed forces,
and the forging or use, of False Identification documents
or permits. This approach appears to be quite feasible in
many cases and has been used in the past. (See Handbook --
National-Security (Dec, 1967) p. 9, para c). However;-GVN
au orities o not readily appreciate the potential of
proceeding in this manner, (They haven't had to resort to
convicting gangsters for income tax evasion!). They should
be instructed along these lines, for apparently most of
the leaders of the Viet Cong are technically draft evaders
(or could easily be made such by small changes in the draft
regulations), especially in view of the new General Mobili-
zation recently ordered by President Thieu,
41. We come back to the fact that there is chronically
a large number of Civilian Security Suspects in detention
and awaiting legal processing. Public Safety Division
figures show the figure on 25 June 1968 to be 9,840, broken
down by CTZ as follows:
I Corps
2,437
II Corps
2,215
III Corps 1,752
l
2)189
Nat
.Prisons437 IV Corps
2,999
Total
9,840
The number of security suspects* awaiting action and in
process of trial at the military courts on 30 June 1908 was
as follows!
Mil.Courts Mil.Field New Field
(Regular) Courts Court
Totals
Cases Persons Cases Persons Cases Persons
Person
I
Corps
117
164
138
148
312
II
Corps
199
350
8?
30
380
III
Corps
4
18
12
24
254
414
456
IV
Corps
60
90
380
505
595
Grand Total 1,743
*These figures are-not-strictly limited to civilians but include
some enlisted men and RF/PF personnel. .
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42. From the foregoing, it is evident that there is a
relatively large existing and potential case load of security
suspects in IV Corps. The establishment of an additional
Military Field Court there has been endorsed by the Staff
Judge Advocate in Can Tho and other officials there. The
Director of Military Justice, Colonel Nguyen Van Duc, concurs
in the need for the establishment of such a court, provided
the United States will give support in the form of needed
equipment and furniture, as was done in the case of the new
field court set up in III Corps this year. Someone on the
U.S. side should,be specifically designated to follow up on
and accomplish these administrative matters. Colonel Duc
would also like a high U.S. official to suggest to the
Minister of Defense that, contrary to past practice, the
President of the new field court, and his alternate, both be
qualified military lawyers. There should be an Assistant
Prosecutor also.. With these improvements, which are not
required by the law, the new court will be able to perform
in a creditable fashion in the eyes- of the public and the
legal profession.
43. The new field court would travel frequently, thus
attracting more business from the Provinces, and would
specialize in the handling of CSS cases, as has the new Field
Court in III Corps. Air transportation is often not readily
available to Vietnamese organizations not directly connected
with military operations. U.S. backing or assistance in some
form may be needed.
44. The mere creation of another court might do little
to improve and speed up the legal processing of detainees.
It is essential that the GVN, with the assistance of the U.S.,
make a concentrated effort inIV Corps to increase and improve
the Special Police investigative capability and to improve
and speed up the functioning of the' Security Committees. If
these things are done, a steady flow of cases to and through,
the military court system should occur.
45. It is deemed inadvisable to establish a new Military
Field Court in I Corps in the'near future. The regular
military court facility at Hue was destroyed during the Tot
offensive and the court personnel withdrew to Danang, where
the field court also sits. The principal effort now will be
to get military trials reinstituted in Hue and to build up
the personnel and facilities of the two existing courts.
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46. As to II Corps, it has been the feeling of the
Staff Judge Advocate in Nha Trang, based on the facts as
he has observed them, (and which are corroborated by the
statistics in paragraphs 33 and 41 above) that there is
presently an insufficient caseload of CSS cases to justify
a new field court in CI Corps. The Director of Military
Justice also says this is the case. He has agreed, however,
that the situation should be studied with a view to seeing
if legal processing by the police and Security Committees
can be improved so as to provide sufficient case load for
a new field court to be established in 1969. It has been
suggested by several persons that any such new court
should be organized in Pleiku, the headquarters of the
Vietnamese Tactical Zone.
47, The central importance of collecting and presenting
evidence has been discussed at various places above, par-
ticularly in connection with the work of the Special Police.
That organization is deeply involved in the information
gathering and collating activities of the PIC's and the
DIOCC's. Those activities must be carried on in such a way
as not to lessen the output of the Special Branch in inves-
tigation and file preparation of the legal case against a
CSS. Rather, the information being collected in the PIC's
and DIOCC's should be made available in a prompt and
efficient fashion for the legal processing of the suspect
and thus contribute to the proper and expeditious legal
handling of cases.
48. Procedures for transmitting dossiers on CSS's
between the police and District, Provincial and judicial
authorities must be improved, to assure that all available
data is made available, duplication of work avoided, and
processing expedited.
48. Provision is made in the existing regulations of
the Ministry of Interior for review of the cases of CSS's
shortly prior to the end of their sentences, to determine
if the individual should be released or an additional period
of detention ordered. There is also some provision for earlier
review, and release when it is deemed the person can be
rehabilitated as a law-abiding citizen. However, there is no
well defined and administered system for release "On Con-
ditions" and for "Post Care" such as has been developed in
Malaysia. These should be part of the long range detention
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heavy responsibility in the review of the cases and the
monitoring of the activity of those released On Conditions.
CORRUPTION
50. Various of the Decrees and Decree-Laws which
set forth offenses against the national security also
define offenses in the nature of bribery, influence peddling,
embezzlement, smuggling, war profiteering, etc., and
prescribe punishment, therefor. This is a broad and proper
view: that corruption threatens the national security.
51. By Decree-Law No. 003/66 of 15 February 1966, the
"Special Court" was established, to try these offenses during
the existing declared state of war, The Military Field
Courts also have extensive jurisdiction in the field of
corruption, when the monetary amount involved falls below
stated limits,
52. The Judges sitting on the court and the Prosecutors
are all military Judge Advocates, drawn from the staff of
the Directorate of Military Justice. By drawing on the DMJ
for some of its best people, it was possible for the Govern-
ment to put the Special Court in operation promptly. How-
ever, some thoughtful Vietnamese officials are now question-
ing this arrangement, on the ground that military personnel
are subject .to pressure from the military establishment and
specifically from higher ranking officers. A high proportion
of those suspected of corruption are military officers, many
of them holding-important non-military positions in the
government. Also, it is claimed (though by no means proven)
that the military lawyers on the court are not as competent
for these cases as civilian judges who could be named in their
place. Finally, with the advent of the new Constitution and
the National Assembly, the trend is.toward increased partici-
pation by civilians in the operation of the government.
53. The foregoing arguments are persuasive. It appears
desirable to place well-qualified civilians on the Special
Court, as Judges and Prosecutors. This will make it possible
to return to the Directorate of Military Justice some nine
of its best personnel and thus help the DMJ to staff the
recommended new Military Field Court in IV Corps and to
strengthen the staffs of other military courts, particularly
in I Corps,
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CONCLUDING REMARKS
54, Contrary to the often expressed view, the existing
system for legal processing of Civilian Security Suspects is
appropriate for the job. The military courts and Security
Committees are logical instrumentalities for the times and
the situation. Improvements should be made in their
functioning and supervision, as outlined above.
55. The work of the Special Police in preparing and
presenting the legal file on the case lies at the heart of
the proper disposition of CSS cases, whether by a District or
Province Chief, by a Security Committee,.or a military court.
It is by improving the investigative capability of the Special
Police that the greatest contribution can be made to the legal
processing of CSS's.
56. The U.S. components which conduct liaison with the-
appropriate offices of the Ministry of Interior should
initiate discussions for the development of detailed plans
for improving the functioning of,the Special Police and the
Security Committees in the processing of CSS's. The same
is true of the follow-up on execution of the plans. The
principal skills involved are administrative and investiga-
tive in nature.
57. The results to be obtained from the effort to
improve legal processing will be commensurate with the pri-
ority and emphasis given the program by the U.S. Government
and the GVN. Without impetus proceeding from a high official
level, only modest progress, at best, can be expected. With
such backing and direction, much may be accomplished.
CONFIDENTIAL
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