A Tangled Web: Kerry’s Defenders Have to Deal with History—and the Facts

Mackubin T. Owens

August 1, 2004

My piece on Kerry and the Swift Boat Veterans generated some 200 e-mails, a far greater number than from anything else I have ever written. About two-thirds of the responses were complimentary. Some pointed out an error: Sen. Max Cleland was not awarded a Purple Heart for the very reason I quoted from his autobiography. (His wounds, serious as they were, did not result from enemy action.) Mea culpa. Others took issue with my argument that the Swifties should have avoided attacking Kerry’s record in Vietnam and focused their attention on the real story: what he did when he returned.

For example, some correspondents pointed out that the second part of Unfit for Command does indeed address his postwar activities. Others argued that had the Swifties led with the postwar stuff, they would have been met with a great yawn. Having gotten everyone’s attention with their critique of Kerry’s combat record, the Swifties will deliver the real message at a time when—unlike January and February, when my articles on this topic appeared—people will be listening. They also point out that the issue of his record “in country” gets at the question of his integrity.

They may be right. Kerry certainly has not handled the controversy very well. His responses so far may constitute a serious strategic error, breathing life into an issue he would like to avoid. But his campaign’s constant refrain that he has been “smeared” may still resonate with a public that, as analysts keep telling us, doesn’t care for negative campaigning.

Some of the pro-Kerry responses I received were, shall we say, intemperate, but many were not. The ones that were not mere instances of vitriolic name-calling can be grouped into three categories: 1) Kerry spoke the truth about the Vietnam war—it was brutal and unjust and atrocities were common; 2) Kerry had every right to criticize the war, especially since he had been there; and 3) In his April 1971 testimony, Kerry did not call all U.S. soldiers war criminals but merely relayed the charges of others.


Point one: As I have written here and in National Review on several occasions, no one denies that atrocities occurred in Vietnam. I even stipulated that there were, no doubt, more atrocities in Vietnam than were reported. But the idea that an atrocity such as My Lai was in any way a normal event was refuted by Daniel Ellsberg, as severe a critic of U.S. policy in Vietnam as there was: “My Lai was beyond the bounds of permissible behavior, and that is recognizable by virtually every soldier in Vietnam. They know it was wrong… The men who were at My Lai knew there were aspects out of the ordinary. That is why they tried to hide the event, talked about it to no one, discussed it very little even among themselves.”

Additionally, as I wrote in the May 3 issue of National Review,

American atrocities in Vietnam were, with the exception of My Lai, committed by individuals or small groups. All were in violation of standing orders and rules of engagement that were, according to Telford Taylor, a critic of many aspects of U.S. Vietnam policy and formerly a prosecutor at Nuremberg, “virtually impeccable.” Indeed they were so restrictive that they provoked a great deal of criticism from members of Congress appalled at the disabilities placed on American units. The random violence of individual American acts is not to be condoned or excused, but objective observers must contrast them to the policy of the Vietnamese Communists. The NVA and VC frequently committed atrocities as a matter of policy. A month and a half before My Lai, the North Vietnamese and VC systematically murdered 3,000 people in Hue City. Yet so widespread was the belief that Americans were conducting a barbaric war that many opinion-makers refused to believe, despite the irrefutable evidence, that the wholesale slaughter of civilians in Hue was perpetrated by the Communists. This mindset was revealed by Mary McCarthy, who said of the incident: “I prefer to believe the Americans did it.”

As I observed in an article for the February 23 issue of National Review, the atrocity claims that served as the basis for Kerry’s 1971 testimony have never been confirmed, and many have been disproved. When Sen. Mark Hatfield inserted the transcript of the Winter Soldier testimonies that Kerry cited in his Senate testimony into the Congressional Record, he asked the commandant of the Marine Corps to investigate the war crimes allegedly committed by Marines. When the Naval Investigative Service (NIS) attempted to interview those who allegedly had witnessed atrocities, most refused to cooperate, even after assurances that they would not be questioned about atrocities they may have committed personally. Those who did cooperate never provided details of actual crimes to investigators. The NIS also discovered that some of the most grisly testimony was given by fake witnesses who had appropriated the names of real Vietnam veterans. Guenter Lewy tells the entire story in his book America in Vietnam.

The same thing happened with Army investigators. As Lewy wrote, “The refusal of [those alleging atrocities] to give substantiating factual information… created a situation in which the accusers continued to reap generous publicity for their sensational charges while the Army in most cases could neither investigate nor refute them.” Lewy concluded that there was another reason to be wary of such allegations: They were retrospective reports and therefore subject to distortion, “created by the veterans’ perception of the interviewers and organizers of the hearings, by their attitudes toward the military and by their difficulties in adjusting to civilian life after discharge.”

What about war crimes and violations of the law of war? “Using [the] Nuremberg guidelines, it is very difficult to support the claim that U.S. conduct of the Vietnam War was characterized by the commission of war crimes or crimes against humanity. The U.S. action was generally within the guidelines of the positive law of war; excesses and violations were usually treated as such.”

Consider the old charge that the U.S. employment of firepower in Vietnam constituted a violation of the law of war. In fact, I have observed, “the use of firepower does not per se violate the law of war”:

And it was, after all, the Viet Cong and North Vietnamese who turned hamlets into battlefields. The Communist practice of ’clutching the people to their breast’ was a violation of the Geneva Convention of 1949, which prohibits a combatant from using the civilian population as a shield: ’The presence of a protected person may not be used to render certain points or areas immune from military operations.’ And while the Hague Convention IV (1907) prohibits the attack or bombardment of inhabited areas that are not defended, it is the general practice of states to treat a town occupied by a military enemy as a defended place, subject to attack.

That the official U.S. position was to avoid indiscriminate attacks on civilians is indicated by a 1966 directive from the U.S. military command: “Firing on localities which are undefended and without military significance, is a war crime.” Clearly, the U.S. command attempted to abide by the principle of discrimination, but the method of fighting employed by the enemy made discrimination difficult in practice.

The claim advanced by these defenders of Kerry that the United States fought a particularly brutal and unjust war is simply not supported by the facts.


Point two: No veteran I know has denied Kerry’s right to protest the war once he returned home. Many honorable men who fought valiantly in Vietnam came to believe the war wasn’t worth the cost. Many disagreed with the policy and strategy the United States followed in Vietnam. Many of these veterans spoke out against the war, but only a handful, including Kerry, advanced the perspective of our enemies and slandered their fellow soldiers as war criminals. My beef (and that of the Swifties) with Kerry is not that he turned against the war, but the manner in which he protested it. The two are very different.

Point three: Contrary to the claims of several of my correspondents, Kerry did far more than merely report what others said about atrocities and war crimes. Once more, here are his exact words:

I would like to talk, representing all those veterans, and say that several months ago in Detroit, we had an investigation at which over 150 honorably discharged and many very highly decorated veterans testified to war crimes committed in Southeast Asia, not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command [emphasis added].

They told the stories at times they had personally raped, cut off ears, cut off heads, taped wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks, and generally ravaged the countryside of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country.

The sentence in bold in the first paragraph gives the lie to the contention that Kerry was only relating stories he had heard from others. It seems clear that he is claiming that these acts were part and parcel of U.S. policy and strategy in Vietnam.

I would also like to point out to those who praise Kerry for his testimony that, in addition to slandering those he now calls his “band of brothers,” he contributed in a major way to the popular perception of the Vietnam veteran as dysfunctional loser. “The country doesn’t know it yet, but it has created a monster, a monster in the form of millions of men who have been taught to deal and to trade in violence, and who are given the chance to die for the biggest nothing in history; men who have returned with a sense of anger and a sense of betrayal which no one has yet grasped.” This claim helped to cement in the public mind a caricature of the Vietnam veteran: He routinely committed war crimes; he returned home from an immoral war traumatized; he was vilified, then pitied; he was likely to be jobless, homeless, addicted, and suicidal, stranded on the fringes of society.

Of course, Kerry could have defused this whole affair if he had just apologized for his slander of his comrades’ honorable service in a difficult war. But he hasn’t and he won’t. He wants to have it both ways, and the press seems inclined to give him a pass. The voters, however, must not. They owe it to themselves to consider the contradiction that Kerry has created for himself. As I observed in February,

If [Kerry] believes his 1971 indictment of his country and his fellow veterans was true, then he couldn’t possibly be proud of his Vietnam service. Who can be proud of committing war crimes of the sort that Kerry recounted in his 1971 testimony? But if he is proud of his service today, perhaps it is because he always knew that his indictment in 1971 was a piece of political theater that he, an aspiring politician, exploited merely as a “good issue.” If the latter is true, he should apologize to every veteran of that war for slandering them to advance his political fortunes.

Mackubin Thomas Owens is an Adjunct Fellow of the Ashbrook Center and a professor of strategy and force planning at the Naval War College in Newport, R.I. He led a Marine infantry platoon in Vietnam in 1968-1969.