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THE PARIS PEACE ACCORDS

Key Questions and Key Issues

Most of the questions and controversies that still surround the POW/MIA issue can be traced back to the Paris Peace Accords and their immediate aftermath. If that agreement had been implemented in good faith by North Vietnam and with necessary cooperation from Cambodia and Laos, the fullest possible accounting of missing Americans would have been achieved long ago.

Obstacles to Resolution

The great accomplishment of the peace agreement was that it resulted in the release of 591 Americans, of whom 566 were military and 25 civilian. It also established a framework for cooperation in resolving POW/MIA related questions that remains of value today. Unfortunately, implementation of the agreement failed, for a number of reasons, to resolve the POW/MIA issue.

During its investigation, the Committee identified several factors that handicapped U.S. officials during the negotiation of the peace agreement, and during the critical first months of implementation.

The first and most obvious obstacle to a fully effective agreement was the approach taken to the POW/MIA issue by North Vietnam (DRV) and its allies. During the war, the DRV violated its obligations under the Geneva Convention by refusing to provide complete lists of prisoners, and by prohibiting or severely restricting the right of prisoners to exchange mail or receive visits from international humanitarian agencies. During negotiations, the DRV insisted that the release of prisoners could not be completed prior to the withdrawal of all U.S. forces, and consistently linked cooperation on the POW/MIA issue to other issues, including a demand for reconstruction aid from the United States. Once the agreement was signed, the DRV was slow to provide a list of prisoners captured in Laos. Following Operation Homecoming, the North Vietnamese refused to cooperate in providing an accounting for missing Americans, including some who were known to have been held captive at one time within the DRV prison system. Perhaps most important of all, the DRV's continued pursuit of a military conquest of the south dissipated prospects for cooperation on POW/MIA issues.

A second factor inhibiting the achievement of U.S. objectives was the limited leverage enjoyed by U.S. negotiators. It was U.S. policy, fully known to the North Vietnamese, that the U.S. sought to disengage from what had become the longest war in American history. President Nixon, who had inherited the war from his predecessors, was elected on a platform calling for an end to U.S. involvement; support was building rapidly within the Congress for measures that would have mandated a withdrawal conditioned solely on the return of prisoners; the antiwar movement had become more active and visible; and the American public had become increasingly divided and war-weary as the conflict continued. These same factors, along with the debilitating effects of the Watergate scandal on the Nixon Presidency, weakened the U.S. hand in responding to DRV violations after the peace agreement was signed.

A third factor limiting the success of the agreement was the absence of Lao and Cambodian representatives from the peace table. Although the U.S. negotiators pressed the DRV for commitments concerning the release of prisoners and an accounting for the missing throughout Indochina, the peace accords technically applied only to Vietnam. Although the DRV assured Dr. Kissinger that it would ensure the release of U.S. prisoners in Laos, the prisoners captured in Laos who were actually released had long since been transferred to Hanoi. No Americans held captive in Laos for a significant period of time were returned at Operation Homecoming. Neither the peace agreement, nor the assurances provided by the North Vietnam to Dr. Kissinger, established procedures to account for missing Americans in Cambodia or Laos.

Purpose

The overall purpose of the Committee's investigation of the Paris Peace Accords was to uncover information bearing on the likelihood that U.S. POWs were kept behind in Southeast Asia after Operation Homecoming. A secondary purpose was to determine whether there were factors involved in the negotiation of the agreement, in the agreement itself, or in the subsequent public characterizations of the agreement by U.S. officials that affected our ability to obtain the fullest possible accounting of our POW/MIAs or that otherwise contributed to the ongoing controversy over the POW/MIA issue.

In order to make judgments about these larger issues, the Committee considered a number of more specific issues and questions.

First, the Committee reviewed the negotiating history to determine the priority attached by the U.S. side to the POW/MIA issue, the obstacles to a favorable agreement raised by the other side, and the compromises made before a final agreement could be reached.

Second, the Committee reviewed the POW/MIA provisions of the agreement itself to determine both their scope and enforceability. Of particular interest in this regard was the "side understanding" between the United States and the DRV which obligated the North Vietnamese to arrange for the release of U.S. POWs in Laos.

Third, the Committee examined the relationship between negotiations over the POW/MIA issue and discussions concerning possible U.S. reconstruction aid to North Vietnam.

Fourth, the Committee compared official American expectations with results in terms of the number and identities of prisoners released. Related to this was an examination of the basis for U.S. expectations. Clearly, if the U.S. had good reason to expect Americans to come home who did not come home, the possibility that some prisoners were intentionally withheld by the DRV or by communist forces in Laos would increase.

Finally, the Committee examined allegations concerning the apparent disparity in substance and tone between internal U.S. communications during the 60 days after the peace agreement was signed and official public statements made subsequent to the completion of Operation Homecoming.

Investigative Approach

The Committee began its investigation of the Paris Peace Accords and related matters determined to go beyond the public record to the private record of negotiations, internal U.S. agency communications and the sworn testimony of those who participated in shaping and implementing the agreement.

The Committee requested, and obtained, access to nearly all Executive branch materials dealing with the POW/MIA related aspects of the peace negotiations, including Presidential papers, the papers of then-National Security Adviser, Dr. Henry Kissinger, and the minutes of meetings conducted by the Washington Special Action Group (WSAG). A large quantity of these materials were then declassified and made available to the public at the Committee's request.

Committee staff investigators took a "bottom-up" approach to interviewing participants in the Paris Peace negotiations beginning with staff members and those with peripheral roles and continuing through the deposition of Dr. Kissinger and other senior Nixon Administration officials.

Among those interviewed and deposed with respect to this issue were the following (affiliations indicated below refer to the 1970-1973 time period):

National Security Council Staff:

Dr. Henry Kissinger Gen. Alexander Haig Mr. Winston Lord Mr. John Negroponte Mr. Peter Rodman Mr. John Holdridge Gen. Brent Scowcroft Mr. Richard Kennedy

Department of Defense:

Mr. Melvin Laird Mr. Elliot Richardson Mr. James Schlesinger Mr. William Clements Admiral Daniel Murphy Dr. Roger Shields Mr. Lawrence Eagleburger Maj. Gen. Richard Secord Lt.Gen. Vernon Walters B.Gen. George Guay Admiral Thomas Moorer Mr. Jerry Friedheim M.Gen. John R. Deane, Jr.

Department of State:

Mr. William Rogers Ambassador William Sullivan Mr. George Aldrich Mr. Heyward Isham Ambassador McMurtrie Godley Mr. Frank Sieverts

Central Intelligence Agency:

Mr. James Schlesinger Mr. George Carver Lt.Gen. Vernon Walters

US Delegation to Four-Party Joint Military Commission:

Gen. John Wickham Col. Paul Miles Col. Lawrence Robson Col. Bernard Russell Lt.Gen. Larry Budge M.Gen. O'Connor

These interviews and depositions were supplemented by public hearings on September 21, 22 and 24, 1992.

Background

Outline of the Negotiations

The United States and the Democratic Republic of Vietnam (DRV) conducted peace negotiations through two channels. The public channel began in May, 1968 with bilateral discussions between the United States and the DRV in Paris, France. In January, 1969, the Paris Conference on Vietnam convened with representatives from those two countries and from the Government of South Vietnam (GVN) and the Viet Cong (Provisional Revolutionary Government (PRG)). The second channel consisted of secret talks, which began in August, 1969, between Dr. Henry Kissinger, Assistant to President Nixon for National Security Affairs, and Xuan Thuy, the chief of the North Vietnamese Delegations to the Paris Peace Conference. In February, 1970, Le Duc Tho, a senior member of the North Vietnamese Politburo, replaced Thuy as North Vietnam's top participant in the talks.

Public Sessions

The Paris Conference on Vietnam held meetings on almost a weekly basis between January, 1969 and the end of the war. Throughout most of this period, the Conference served not as a forum for negotiations, but for propaganda campaigns on all sides. Minister Xuan Thuy, head of the North Vietnamese delegation, regularly lambasted the United States for its bombing campaigns, its "aggression" against Cambodia and Laos, its "neo-colonialist" policy towards Vietnam and its support for the "dictatorial, bellicist and corrupt Thieu" regime.

On January 21, 1971, at the 100th session of the conference, DRV Minister Xuan Thuy argued that:

. . . . the Nixon Administration has ceaselessly clamored about the so-called question of "prisoners of war" to stir up public opinion, particularly in the United States. Once again, we think it necessary to state that, although the American pilots were captured in the act of committing crimes when bombing the Democratic Republic of Vietnam, our government has treated them with leniency and humanity. If the Nixon Administration is really concerned about Americans captured in the war, it should announce the total withdrawal from South Vietnam of U.S. troops and those of the other foreign countries in the U.S. camp by June 30, 1971. . . . so that discussion may immediately begin on the question of releasing captured militarymen. . . .

The American delegation, headed by Ambassador David K.E. Bruce, concentrated much of its rhetorical fire on the failure of the DRV to live up to its obligations under the 1949 Geneva Convention regarding the treatment of prisoners of war. The POW issue was raised by the U.S. at more than half the sessions and often was the sole subject of American statements. Ambassador Bruce criticized, in particular, North Vietnam's refusal to identify all prisoners held, including those in South Vietnam and Laos; its refusal to allow regular correspondence to families; its failure to permit inspections by the Red Cross and its unwillingness to release the sick and badly injured. The U.S. delegation also challenged the DRV, without success, to accept an October 7, 1970 Nixon Administration proposal for the immediate and unconditional release of all prisoners of war.

Secret Talks

Until October, 1972, the U.S. negotiating team for the secret talks consisted exclusively of National Security Adviser Henry Kissinger and several of his staff. Dr. Kissinger's primary assistants during various periods of the negotiations were NSC staff members Winston Lord, John Negroponte, Dick Smyser and Peter Rodman. General Alexander Haig, Dr. Kissinger's deputy, also attended several of the negotiating sessions and played a major role in convincing the South Vietnamese Government to accept the agreement. General Vernon Walters, the Army Attache at the U.S. Embassy in Paris and later Deputy Director of the CIA, arranged and acted as translator at the early meetings. The Defense Department had no representative on the team, while the State Department was not included until late October, 1972, when William Sullivan, Deputy Assistant Secretary of State for Pacific and East Asian Affairs, and George Aldrich, a Deputy Legal Adviser, were recruited.

By the time the secret talks began, the Nixon Administration had withdrawn 60,000 American troops from Vietnam and adopted the policy of "Vietnamization" of the war. The goal of this policy was to shore up the GVN through a massive infusion of military and economic assistance to enable it to survive despite the gradual withdrawal of American troops. The policy also called for greater use of American air power in order to induce the DRV to negotiate and to interdict supply lines running through Cambodia and Laos to the south. This policy, aimed explicitly at achieving "peace with honor," provided the context for U.S. negotiating objectives.

The U.S. entered the negotiations with three goals foremost in mind. The first was to obtain the fullest possible accounting of American POW/MIAs. The second was to ensure that the Government of South Vietnam's President Nguyen Van Thieu could stand alone after U.S. withdrawal. And the third was to establish a framework for the future political self-determination of the South Vietnamese people. In order to achieve these ends, U.S. negotiators sought: 1) the unconditional release of prisoners and a means to account for the missing throughout Indochina; 2) an internationally supervised ceasefire throughout Indochina; 3) the right to continue supplying military aid, including training and advisers, to South Vietnam; 4) the withdrawal of North Vietnamese forces from the south; and 5) a plan for free and fair elections in South Vietnam.

The overriding goal of the DRV, on the other hand, was to establish the conditions that would make a Communist military takeover in the south more likely. Thus, North Vietnamese negotiators insisted on the total withdrawal of U.S. troops (including advisers), the end of U.S. aid to South Vietnam, the release of Viet Cong prisoners by the GVN, and the replacement of President Thieu with a coalition government. North Vietnam also demanded reparations from the U.S. as compensation for war-related damage.

Neither the weekly public talks in Paris, nor the sporadically-held secret talks, resulted in progress until mid-1971. Until then, the U.S. insisted on an agreement that dealt only with the military issues of returning prisoners, a ceasefire and the withdrawal of forces. DRV officials, meanwhile, demanded both the removal of President Thieu and the unconditional withdrawal of American forces, while refusing to acknowledge the presence of their own troops in South Vietnam.

On May 31, 1971, with U.S. troop levels down from a peak of 540,000 to 270,000, Dr. Kissinger offered to negotiate a deadline for withdrawal of U.S. forces in exchange for a ceasefire and the release of American POWs. This triggered an exchange of comprehensive proposals that would ultimately lead to an agreement. Throughout 1971, however, Le Duc Tho held firm to his insistence that President Thieu be removed and no breakthrough occurred.

On January 25, 1972, President Nixon revealed publicly that secret talks with North Vietnam had been taking place. There followed a period of increased tensions marked by a major DRV offensive and a U.S. response which included the bombing of North Vietnam and the mining of Haiphong Harbor. Despite the fighting, or perhaps because of it, the momentum on both sides for an agreement built rapidly. As a result, discussions between Dr. Kissinger and Le Duc Tho were held on July 19, August 1, August 15, September 15 and daily between October 8 and October 11. By the end of those sessions, the outline of an agreement had taken shape. The key concession from the American side was the willingness to accept a ceasefire that did not require DRV withdrawal from the south. The key DRV concession was a willingness not to demand the prior removal from office of President Thieu.

Prospects for an agreement by the end of October were dashed, however, when President Thieu objected bitterly to the proposed draft. Negotiations resumed between November 20 and December 14, 1972 but did not narrow remaining differences. This was followed by President Nixon's decision to order ten days of intensive bombing of the north. Negotiations started again in early January and concluded when Dr. Kissinger and Le Duc Tho initialed the "Agreement on Ending the war and Restoring Peace in Vietnam." The Agreement was signed formally in Paris on January 27, 1973.

The Issue of the Prisoners

A major U.S. goal entering the negotiations was to guarantee the release of all Americans held captive throughout Indochina. This was repeatedly stated as an absolute condition for reaching agreement. When the agreement was announced, U.S. negotiators said, without reservation, that this vital American objective had been achieved. On January 23, 1973, the day the agreement was initialed, President Nixon announced that:

Within 60 days from this Saturday (the day the agreement was to be signed), all Americans held prisoner of war throughout Indochina will be released. There will be the fullest possible accounting for all of those who are missing in action. . . .

The following day, Dr.Kissinger told reporters that:

"We have been told that no American prisoners are held in Cambodia. American prisoners held in Laos and North Vietnam will be returned to us in Hanoi."

Three years later, in 1976, the Montgomery Committee concluded that:

the provisions of the Paris Peace Agreement relative to POW's and MIA's and the Protocol on Prisoners and Detainees appear, at first glance and after more thoughtful consideration, not only adequate, but excellent. . . . These provisions constitute an achievement of which the American negotiators and the American people could be proud. Their true success, however, depended on their implementation, and their implementation depended on the cooperation of all parties.

Although the POW/MIA provisions may well have been the best achievable given the circumstances, it is clear from an examination of the negotiating record that there were significant differences between the original U.S. position and the final agreement on several key points. This is not surprising, given the nature of the negotiation process. The Montgomery Committee was surely correct, moreover, in stating that the success of the agreement depended on its implementation which, in turn, hinged on the cooperation of all parties. A review of the issues involved in the negotiation provides a useful introduction to the problems of implementation that would follow.

Timing of POW Release

A key issue early in the negotiations involved the timing of the release of U.S. POWs. On October 7, 1970, President Nixon proposed that prisoners be returned as part of an overall agreement requiring a regionwide ceasefire and a timetable for the withdrawal of all foreign troops, including the withdrawal of North Vietnamese troops from Cambodia, Laos and South Vietnam. The U.S. maintained this position until May 31, 1971 when Dr. Kissinger told the DRV that the U.S. would agree to a deadline for the withdrawal of all U.S. forces in exchange for a ceasefire and the release of U.S. POWs. Both proposals envisioned the return of U.S. POWs prior to the withdrawal of American troops. North Vietnam, on the other hand, was insisting that POWs be returned after U.S. troops had been withdrawn.

In July, 1971, the DRV proposed that the prisoner release occur concurrently with the U.S. troop withdrawal. This concept was accepted by the U.S. side and was incorporated in subsequent proposals. Gradually, the period for the combined troop withdrawal/prisoner release was negotiated down from the six months proposed by the U.S. in October, 1971 to the 60 days of the final agreement.

Exchange of Lists

The timing of the exchange of POW lists was an important issue because the United States had ample reason to question whether the North Vietnamese would provide a complete and accurate list.

One reason for concern about the likelihood of DRV trustworthiness on the issue of returning POWs stems from the experience of France after its defeat at Dien Bien Phu in 1954. Although the 1954 Geneva Accords called for the release of all prisoners of war and civilian detainees, more than 20,000 French Union Forces have never been accounted for. Because of disputes between the Viet Minh guerrilla forces and the French about the evacuation of prisoners captured at Dien Bien Phu, a large number of the French POWs were forced to march 600 kilometers to their point of release. General Vernon Walters told the Committee that a senior intelligence officer in the French Army with whom he had spoken characterized this as "a death march" during which many POWs died. General Walters said that the French officer had told him that "something like half the prisoners that were known to have been captured alive never came back to France after they reached a deal with the Vietnamese." The vast majority of the known French Union prisoners who were not returned, more than 9000, were Vietnamese Army personnel who had been allied with the French.

A second reason for serious American concern about whether the DRV would meet obligations entered into with respect to the POW issue arose after the release of a supposedly comprehensive list of U.S. POWs in December 1970. The list, which was given to U.S. Senator Edward Kennedy, included 368 names, with 339 listed as live prisoners and 29 as having died in captivity. The U.S. quickly and repeatedly characterized the list as incomplete because it excluded prisoners captured outside of North Vietnam and because it did not include some Americans thought to have been captured alive by the DRV.

On April 6, 1971, G. Warren Nutter, Assistant Secretary of Defense for International Security Affairs, told the House Foreign Affairs Committee that:

We cannot accept the list as definitive. . . we. . . know that the other side holds or has held many men not included on the list.

He also said in response to a question about what the United States would seek in negotiations in return for troop withdrawal:

. . . let me suggest to you some of the problems we have. We don't even know the names of all our prisoners yet. We would have to negotiate on that question. We would have to get a list that would be definitive.

On January 20, 1972, Heyward Isham, acting head of the U.S. delegation to the Paris meetings criticized the DRV for characterizing the list as "'complete and final' despite clear evidence that you have further information which you could provide." Ambassador Isham then listed the cases of 14 downed airmen "who were known to have been alive on the ground in North Vietnam, or who were at one time actually identified by you as having been captured. None of these men appear on your so-called 'complete' list."

Secretary of Defense Melvin Laird was also active during this period in denouncing the inadequacies of the December, 1970 list and in highlighting the cases of Americans believed to be POWs who were not included in that list. Secretary Laird specifically urged Dr. Kissinger to question the DRV concerning the shortcomings of the December, 1970 list and to insist on an exchange of lists prior to the signing of a peace agreement. Secretary Laird expressed confidence in his testimony before the Select Committee that his advice on these matters had been heeded:

I'm sure they were asking for specific names and numbers. They had the various lists that the North Vietnamese had been putting out, which were incomplete. (135)

In reality, the timing of the exchange of lists was one of the first POW-related issues settled during the negotiations. During the Kissinger-Le Duc Tho meeting on August 16, 1971, the DRV proposed that "the two sides will produce the complete lists of military personnel and civilians captured during the war on the day an agreement is signed." This formulation was accepted by the U.S. side and thereafter appeared--in substantially identical form- -in proposals by both sides and in the final agreement. Despite the concerns expressed at the time by Secretary Laird and others about whether the DRV could be trusted on this issue, the U.S. side made no effort to re-open the matter in later negotiations or proposals.

During his testimony before the Select Committee, Dr. Kissinger expressed the view that the U.S. lacked the leverage at the time of the negotiations that would have been necessary to gain DRV agreement to an earlier exchange of lists. He also cited the repeated and unsuccessful efforts by the U.S. during the public peace negotiations to obtain a complete list of U.S. prisoners.

Linkage to Release of Civilian Prisoners

One of the most difficult issues facing the negotiators concerned the possible release of civilians detained by the Thieu Government in South Vietnam. To the DRV and Viet Cong, these were the equivalent of prisoners of war. The Government of South Vietnam, however, considered many of these prisoners to be either common criminals or political criminals who had violated the law through subversive activity. In neither case, argued the South Vietnamese, should these prisoners be treated the same as POWs.

Dr. Kissinger and other U.S. negotiators were determined to avoid linking the release of U.S. POWs to the complex questions involved in negotiating the release of the civilians in the south. They feared, quite logically, that such linkage would leave U.S. prisoners hostage to what would certainly be a highly contentious negotiating process between competing factions in South Vietnam. This issue of linkage was a frequent topic of discussion during the secret talks until October, 1972, when the U.S. persuaded the North Vietnamese to leave the issue for the GVN and PRG to decide. In mid-December, however, the DRV reversed field by demanding that the release of the civilians in the south occur at the same time as the release of the U.S. POWs. This demand was a contributing factor to the President's decision to break off negotiations and begin the Christmas bombing. The DRV reverted to its October position when negotiations resumed in January, however, and the agreement to leave the issue to be worked out between the GVN and the PRG was incorporated in the accords as article 8(c).

Application to Prisoners Captured Outside Vietnam

The most difficult task for U.S. negotiators was to attempt to gain an accounting for U.S. prisoners who were captured or held in Laos or Cambodia. Although North Vietnamese troops were active in both countries, the DRV would not admit this in negotiations. Time and again, North Vietnamese negotiators insisted that it was beyond their sovereign power to ensure the return of prisoners from Laos or Cambodia.

U.S. negotiators stressed their concern not only that the accord apply specifically to U.S. prisoners throughout Indochina, but that a mechanism to account for the missing throughout the region also be established. As Dr. Kissinger noted in a cable to President Nixon on August 19, 1972, following a meeting a day earlier with Le Duc Tho, the U.S. position was that the agreement "had to include all men, and account for all missing, throughout Indochina."

Almost to the end, the draft negotiating proposals of the two sides reflected the different positions. For example, on September 15, 1972, the DRV proposed:

The total release of people of the parties, military men and civilians, captured during the Vietnam war (including American pilots captured in North Vietnam). . . The parties will exchange the lists of people of the parties captured during the Vietnam war. . .

The U.S. counterproposal, on the other hand, called for:

The release of all military men and innocent civilians captured during the Vietnam war throughout Indochina including American servicemen captured in North Vietnam. . . The parties will exchange complete lists of the military men and innocent civilians captured during the Vietnam war throughout Indochina on the day of the signing of the overall agreement. As part of the overall agreement, there will be provision for verification of those still considered missing in action throughout Indochina after POW lists have been exchanged.

At the session on September 26, 1972 Dr. Kissinger and Le Duc Tho had the following exchange:

Dr. Kissinger:. . . There is one point about which I can leave no doubt in your mind. The President will under no circumstances sign an agreement that leaves any American prisoners anywhere in Indochina. There would be no support in America whatsoever for any arrangement that drew a distinction between American prisoners that are held in Vietnam and American prisoners that are held in Laos and Cambodia. Now the modalities by which this may be achieved or the language that is used to express it is of course subject to negotiation. . .

Le Duc Tho: So you mean by that there is a difference between reality and language?

Kissinger: If we have assurances that all American prisoners held in Indochina will be returned as a result of the agreement, then we can negotiate about the language that expresses that reality. It is conceivable to me, for example--and I am speaking here without precise authority, but if we want to make rapid progress I have to say things sometimes and then check it in Washington--that your allies could turn over their prisoners to you and then you return all prisoners to us. . .

Le Duc Tho: As I told you last time that the American prisoners in Cambodia, there are none. In Laos, there are very few. But if you satisfactorily solve the political question and the question of reparations then we can find an understanding. But it is a question under the competence of Laos and Cambodia, and we have to exchange views with them. And moreover, this cannot be written down in a signed document.

The following day, Dr. Kissinger cabled General Haig that the DRV's refusal to include formal provisions concerning Laos and Cambodia in a draft agreement remained "a major issue" of disagreement between the two sides.

When it became clear in early October, however, that the DRV would not insist on President Thieu's resignation before agreeing to peace, momentum for an agreement increased. Accordingly, the U.S. side adopted the more flexible approach hinted at by Dr. Kissinger during the September 26 meeting by ceasing to insist on a formal Laos/Cambodia POW/MIA provision and pressing instead for a less formal understanding between the two sides on the issue.

On October 20, 1972, President Nixon sent a secret cable to DRV Prime Minister Pham Van Dong urging him to agree to make the following "unilateral declaration":

With respect to U.S. military men and civilians held in Indochinese countries outside of Vietnam, the DRV undertakes to make arrangements for their indentification and return to the United States authority in accordance with the same schedule established for the release of U.S. military men and civilians detained in Vietnam. The DRV will also assure that the provision in the overall agreement for the verification of those U.S. military men and civilians considered missing in action will be applied also in Laos and Cambodia.

Prime Minister Pham Van Dong did not agree to make such a far- reaching declaration. Instead, he replied the next day as follows:

In order to show its good will, the Government of the Democratic Republic of Viet Nam wishes to make clear its viewpoint regarding the unilateral statements mentioned by the United States in its message of October 20, 1972 as follows:

a) Concerning the understandings on the part of the Democratic Republic of Viet Nam as mentioned during the private meetings in September and October of the current year, the DRV side will carry out, without any change, what it has declared to the U.S. side. But it should be made clear that the questions of Laos and Cambodia must be settled in accordance with the sovereignty of these two countries. . . However, the Democratic Republic of Vietnam will do its utmost to come to an agreement with its allies, with a view of finding a satisfactory solution to the questions with which the United States is concerned. The DRV side is of the view that certainly the ending of the war in Vietnam will positively contribute to rapidly restoring peace in Laos and Cambodia. . . The Lao Patriotic Front has informed the DRV side that it is ready to agree with the other side on a ceasefire in Laos within one month of October 31, 1972 or within a shorter period of time, and that the Americans captured in Laos will be promptly released, before December 30, 1972.

It is clear from this record that Pham Van Dong continued to insist, as the North Vietnamese had throughout the secret talks, that Laos/Cambodia issues were beyond DRV control, that the release of U.S. prisoners in Laos would be contingent upon a ceasefire in that country and that the timing would not necessarily be the same as that in Vietnam. The DRV leader also failed to address explicitly the issue of accounting for MIAs--as opposed to the release of prisoners--in either Laos or Cambodia.

Despite the differences, President Nixon cabled back on October 22 that:

The President notes with appreciation the message from the Prime Minister of the DRV which satisfies all his points with respect to Laos and Cambodia as well as U.S. prisoners.

In his memoirs, President Nixon summarized the exchange as follows:

The North Vietnamese were now clearly determined to get an agreement. . . Only the matter of the unilateral declarations, which included the arrangements for a ceasefire and the return of American POWs in Laos and Cambodia, still had to be clarified. . . On October 21, the North Vietnamese replied by accepting our position on unilateral declarations.

Although the President had expressed satisfaction with the October 21, 1972 correspondence from Pham Van Dong, the U.S. did not leave the issue there when negotiations resumed in January, 1973, after the Christmas bombing. Instead, Dr. Kissinger pressed Le Duc Tho for a direct assurance that U.S. prisoners in Laos would be returned within the same 60 day time period as other prisoners covered by the Accords. On January 9, he succeeded. On that date, Le Duc Tho assured Dr. Kissinger for the first time that U.S. prisoners captured in Laos would be returned within the same time frame as those captured in Vietnam. Le Duc Tho repeated his statement that there were no live U.S. POWs in Cambodia.

To sum up, the U.S. had finally succeeded, two weeks prior to the initialing of the agreement, in obtaining a verbal commitment from North Vietnam that U.S. prisoners detained in Laos would be returned within 60 days. In a cable on January 11, Dr. Kissinger characterized the understanding as providing "ironclad guarantees on our prisoners in Laos and Cambodia."

A potential problem in enforcing these guarantees was raised just nine days later, on January 20, in a cable to Dr. Kissinger from U.S. Ambassador to Laos, McMurtrie Godley. The cable indicates that the timing of the release of U.S. POWs in Laos would depend, at least from the perspective of the Pathet Lao (LPF), on the negotiation and implementation of a ceasefire with the Royal Lao Government (RLG)--not on any timetable established under the Paris Peace Accords. The cable reads:

During General Haig's visit to Vientiane on Thursday, January 18, I forgot to raise with him the link which both the RLG and LPF have established in their draft agreements between the release of prisoners and the withdrawal of foreign forces from Laos. Both draft agreements are identical and state: "The interested parties will proceed with the turnover of all military and civilians captured or imprisoned during the war, regardless of nationality, according to modalities adopted by common agreement. This exchange will begin and end at the same time as the withdrawal from Laos of all foreign troops and foreign military personnel."

At the time the Paris accords were signed, the U.S. and DRV understood that the ceasefire in Laos would take place within 15 days following the signing of the Paris agreement. In fact, the ceasefire agreement was signed on February 21, 1973, but the protocols implementing the POW reporting provisions were not signed until September 14 and implementation of prisoner exchanges by the two Lao parties did not begin until the following April.

Despite the uncertainties about the timing of the Laos ceasefire, Nixon Administration officials were publicly upbeat about the enforceability of the agreement. At a White House meeting on January 26, Dr. Kissinger told representatives of the National League of Families that he did not "foresee any special problems. . . we have absolute assurance that all American prisoners of war held anywhere in Indochina will be released. The North Vietnamese know that one condition on which we have not compromised is the issue of our men. We will brutally enforce the return of these men." When asked about the anticipated prisoner lists, Dr. Kissinger replied that "We will not accept them as complete or as definite. However, we also do not believe they will hide any POWs."

In his testimony before the Select Committee in 1992, NSC staffer Winston Lord discussed the difficulties of gaining truly reliable guarantees from North Vietnam with respect to missing U.S. servicemen in Laos and Cambodia:

the general problem we had with Laos and Cambodia in negotiating this agreement. Hanoi wanted to maintain the fiction that it had no control over its friends in those other two countries, that they were sovereign governments. In retrospect, with respect to Cambodia, that turned out to be largely true. In fact, Vietnam invaded Cambodia a few years later, so they clearly didn't have control over the Khmer Rouge and some of the other elements.

But they certainly had large control in Laos, so our dilemma was to try to make this agreement as airtight as we could throughout Indochina, including on the POW/MIA question. And we came up with, frankly, compromises that were not fully satisfactory, of unilateral statements and so on. . .

We didn't get everything we wanted, including the Laos and Cambodia dimensions were clearly not as good as we would have liked. . . the final agreement was certainly not airtight.

The Issue of U.S. Aid

The concept of U.S. contributions to postwar reconstruction in Southeast Asia was first raised by President Lyndon Johnson in a speech at Johns Hopkins University on April 7, 1965. Regular, albeit general, references to such aid were made later by officials both of the Johnson and Nixon Administrations.

The DRV made it clear during the secret talks that U.S. economic assistance was essential to any agreement reached between the two sides. During testimony before the Montgomery Committee in 1976, Under Secretary of State Philip Habib, who had attended some of the secret negotiating sessions during the war as a member of Dr. Kissinger's staff, noted:

. . .in one of the first lists of negotiating points put forward by the North Vietnamese, the Communist side bracketed the release of prisoners with what they described as "U.S. responsibility for war damage in Vietnam" in a single numbered point. . . I know of no instance in which an adversary so openly treated this humanitarian problem in this way. We recognized from an early date what we were up against.

Also, the following exchange took place during the Select Committee's deposition of Ambassador Vernon Walters:

Q: Was there ever any effort by the North Vietnamese that you were aware of to link the subject of our payments to them with the release of our prisoners?

A: Reparations were sine qua non for peace, return the prisoners for everything.

Q: From the North Vietnamese perspective, you mean?

A: Yes.

The clearest indication that the North Vietnamese continued to link POW/MIA provisions with a commitment for U.S. aid during the latter stages of negotiations occurred on September 26, 1972. During a negotiating session on that date, Dr. Kissinger asked for assurances that all American prisoners, including those in Laos and Cambodia, would be returned as a result of the agreement. Le Duc Tho responded by saying:

. . . if you satisfactorily solve the political question and the question of reparations, then we can find an understanding.

As Dr. Kissinger and Ambassador Winston Lord both testified to the Committee, the U.S. understood that the DRV would not have signed an agreement in January, 1973 in the absence of an American commitment to contribute to postwar reconstruction throughout Indochina. Nevertheless, there was a good deal of haggling over the possible amounts. The DRV continually upped its demands based on the ongoing damage being inflicted by U.S. bombing. In addition, the North Vietnamese referred to the possible aid as "reparations," while the U.S. side insisted that it be referred to as "reconstruction aid." Finally, Dr, Kissinger argued for a provision that was as vague as possible, while the DRV wanted a specific and binding commitment.

Article 21 of the PPA provides that:

The United States anticipates that this Agreement will usher in an era of reconciliation with the Democratic Republic of Vietnam as with all the peoples of Indochina. In pursuance of its traditional role, the United States will contribute to healing the wounds of war and to postwar reconstruction of the Democratic Republic of Vietnam and throughout Indochina.

The inclusion of Article 21 caused considerable controversy in the United States. As described in pages 114-117 of the Montgomery Committee report, Dr. Kissinger and other Administration officials denied at the time and for years afterwards that any negotiations or agreements concerning specific amounts of aid had been conducted.

These denials occurred notwithstanding a secret letter from President Nixon to DRV Premier Pham Van Dong that was hand- delivered on February 1, 1973, four days after the agreement was signed. The letter, which reflected an understanding reached between Dr. Kissinger and Le Duc Tho during the January negotiations, included the following U.S. commitments:

1. The Government of the United States of America will contribute to postwar reconstruction in North Vietnam without any political conditions. 2. Preliminary U.S. studies indicate that the appropriate programs for the U.S. contribution to postwar reconstruction will fall in the range of $3.25 billion of grant aid over 5 years. Other forms of aid will be agreed upon between the two parties. . . 3. The U.S. will propose to the DRV the formation of a Joint Economic Commission. . . (4.) to develop programs for the U.S. contribution to reconstruction of North Vietnam. . .

In regard to other forms of aid, U.S. studies indicate that the appropriate programs could fall in the range of 1 to 1.5 billion dollars. . ." A separate codicil to the letter contained the heading "Understanding Regarding Economic Reconstruction Program." It referred to the recommendations of the Joint Economic Commission "mentioned in the President's note" being implemented by each member "in accordance with its own constitutional provisions."

The record of negotiations supports Dr. Kissinger's contention that he repeatedly informed the DRV that any reconstruction assistance would have to be approved by the U.S. Congress and could not be guaranteed by the Executive Branch acting alone.

Another important issue relating to President Nixon's promise of aid is whether it was meant to be linked with any of the POW/MIA provisions of the agreement and associated understandings. During the course of the secret talks, Dr. Kissinger stated consistently the U.S. position that reconstruction aid was a humanitarian matter that stood alone. In the September 26, 1972 exchange cited above, however, Le Duc Tho explicitly linked the resolution of the issue concerning U.S. POWs in Laos to "the political question and the question of reparations."

It seems, given this record, that the U.S. and DRV took mirror image views of the relationship between the promise of American aid and the release of POWs in Laos. It was the U.S. position that the prisoners must be released whether or not aid was forthcoming. The DRV's preferred position was that aid be forthcoming whether or not prisoners were released. Although U.S. negotiators successfully avoided any linkage of the issues in the agreement, they obviously could not prevent DRV officials from subsequently raising the issue of aid in response to U.S. demands that they comply more fully with the POW/MIA provisions of the accords.

The Agreement

The Paris Peace Accords consisted of the Agreement to End the War and Restoring Peace in Vietnam and four protocols including one on prisoners and detainees. On the military side, the Agreement provided for an immediate ceasefire, the simultaneous withdrawal of all U.S. forces and return of military and civilian POWs within 60 days of the signing, and a prohibition on the introduction of troops, military advisers or personnel into South Vietnam during the 60 day period. It also allowed the GVN and PRG to replace worn out military equipment and materiel after the ceasefire and established military commissions to oversee implementation of the military provisions.

With respect to political issues, the Agreement provided for the exercise of the right of self-determination by the South Vietnamese people, the formation by the PRG and the GVN of a National Council to organize free and democratic elections, the reunification of Vietnam by peaceful means, and a U.S. commitment to contribute to the postwar reconstruction of Indochina, including Vietnam. Provisions for the release of prisoners and accounting for MIAs were contained in Chapter III, Articles 8(a) and 8(b):

Article 8

(a) The return of captured military personnel and foreign civilians of the parties shall be carried out simultaneously with and completed not later than the same day as the troop withdrawal mentioned in Article 5. The parties shall exchange complete lists of the above- mentioned captured military personnel and foreign civilians on the day of the signing of this Agreement.

(b) The parties shall help each other to get information about those military personnel and foreign civilians of the parties missing in action, to determine the location and take care of the graves of the dead so as to facilitate the exhumation and repatriation of the remains, and to take any such other measures as may be required to get information about those still considered missing in action.

The responsibility for implementing article 8 during the 60 day simultaneous prisoner release/troop withdrawal period was delegated to a Four Party Joint Military Commission (FPJMC) and its subcommssion on captured persons. Thereafter, a Four Party Joint Military Team (FPJMT) would assume responsibility for accounting for MIAs.

In addition to Article 8, the Agreement included a Protocol on Prisoners and Detainees. The Protocol specified the terms of prisoner release including--among other things--the immediate, complete exchange of lists of captured persons; the return of prisoners at a rate no slower than the rate of withdrawal of the remaining U.S. forces; a requirement that captured persons be treated humanely; permission for Red Cross visits to all places of detention within 15 days; and a requirement that the return of prisoners not be delayed or prevented for any reason, including a possible conviction for war crimes.

With respect to Laos, State Department Deputy Legal Adviser George Aldrich authored a memorandum following the signing of the agreement that noted:

The DRV has assured us that, although not covered by the agreement, 'all U.S. military and civilian prisoners detained in Laos shall be released no later than 60 days following the signature of the agreement.' The DRV has also assured us that it would be responsible for making the necessary arrangements with the Pathet Lao.

Article 8(b) of the agreement concerning the account for missing in action and the location of graves does not apply to Laos. Similarly, the functions of the Four Party Joint Military Commission with regard to dead and missing persons under article 10(a) of the protocol on the return of prisoners, do not extend to Laos. Therefore, it will be necessary to conclude further arrangements for tracing the missing and finding graves in Laos.

Article 20 of the Agreement was intended to pave the way for a regionwide ceasefire and withdrawal of foreign forces:

(a) The parties participating in the Paris Conference on Vietnam shall strictly respect the 1954 Geneva Agreements on Cambodia and the 1962 Geneva Agreements on Laos, which recognized the Cambodian and the Lao peoples' fundamental national rights, i.e., the independence, sovereignty, unity, and territorial integrity of these countries. the parties shall respect the neutrality of Cambodia and Laos.

The parties participating in the Paris Conference on Vietnam undertake to refrain from using the territory of Cambodia and the territory of Laos to encroach on the sovereignty and security of one another and of other countries.

(b) Foreign countries shall put an end to all military activities in Cambodia and Laos, totally withdraw from and refrain from reintroducing into these two countries troops, military advisers and military personnel, armaments, munitions and war materiel. . .

Also of interest is Article 21, cited above, which contains a general U.S. commitment to "contribute to healing the wounds of war and to postwar reconstruction of the Democratic Republic of Vietnam and throughout Indochina."

Finally, Article 22 of the Agreement stated:

. . . the strict implementation of this agreement will create conditions for establishing a new, equal, and mutually beneficial relationship between the United States and the Democratic Republic of Vietnam on the basis of respect for each other's independence and sovereignty, and non-interference in each other's internal affairs.