Senator Richard Shelby
Senator Jon Kyl
Attorney General John Ashcroft
September 26, 2003
Dear Senators Shelby and Kyl and Attorney General Ashcroft:
This is a followup to your previous faxes. By now, you have had a chance to digest part of the material. It is now time to add the classified material. This material, although declassified, is part of what CIA still claims is classified and withholds from your perusal and that of the court. Adding this material will put this whole situation in perspective.
In the Summary of the Evidence against CPT McCarthy (previously discussed in the last fax), the government made these points: (the following bolded words are all direct quotes from the then Top Secret Review of the Staff Judge Advocate dated 3 March 1968 - Jimmie is the person killed by persons unknown)
--- ... Project Cherry, a classified operation of the 5th Special Forces Group...
--- ... Jimmie was... Cambodian ... a member of the Kemer Serai (sp), a group subversive to the current Government of Cambodia, who had been discharged from employment in Project Cherry...
--- ... he (McCarthy) was the commanding officer of Project Cherry, a classified operation of the 5th Special Forces Group with the mission of organizing and training (next 3 lines are excised with 5 USC 552 (b) (1) as the reason it cannot be further declassified from Top Secret) ...
--- ... All United States personnel were separated from Detachment B-57ís headquarters, documented as United States civilians, with a cover as an Army evaluation team...
--- ... All of the Cambodians used cover names as most were Ex-Cambodian and Ex-Vietnamese officers wanted by their governments for some crime or another. They were documented as United States security guards at local installations. The cover name for Inchin Hia Lam (the deceased) was Jimmie...
--- ... Inchin Hia Lam was Cambodian... held a high rank in the Kemer Serai (sp), an organization with plans of overthrowing the present Cambodian Government ... Jimmie was the principal agent which meant he was the number one agent in Project Cherry....
--- ... Project Cherry was being disbanded in order to shift emphasis to United States led reconnaissance operations... and attempts were made to employ them in other intelligence operations, especially in this case with MACSOG, a classified American organization (next few words excised like above) Jimmie was the only member of the team not employed by MACSOG...
---... Jimmie had been found in possession of an SOI (Signal Operations Instructions) from an aborted mission and he likewise had been found with pictures of the US members of Project Cherry with their real names listed on them... (The SOI contained unit call signs, operating frequencies, and dates and times of transmissions. By having this, Jimmie and the opposition forces he worked for, through their signal intelligence units, could predict and anticipate future operations using the same format - a likely scenario. Likewise, they could, through deception and use of this knowledge divert operations, cease operations, or ambush operations. After an operation, all copies of this were to have been destroyed. This was a major Operations Security (OPSEC) violation. It is reported that many MACSOG operations failed for similar reasons by persons unknown)
--- ... After learning that MACSOG would not employ Jimmie, this information was reported to Detachment B-57ís Executive Officer, Major Guild, on 22 November, 1967...
--- ... All ... security violations alleged against Jimmie had taken place before McCarthy arrived at Detachment B-57...
--- ... Major Hugh W. H. Adams... Captain McCarthyís Commanding Officer... (testified) Efforts were made to employ Inchin Hia Lam with MACSOG, but he was turned down by that organization...
--- ... (Further from Adams) The Vietnamese Government is not aware of Project Cherry...
--- ... He (Adams) also had fears of reprisals from Kemer Serai, but that organization manifested no surprise or hostility which was unusual in Major Adamsí opinion...
--- ... Lam was educated in the USSR, and he had traveled in East Bloc countries...
--- ... (Until noted otherwise the following is from SFC Ben Hancock case NCO in Project Cherry) he had doubts about his (Jimmie) loyalty to the team because of the way he copied notes...
--- ... Colonel Groover of the 5th Special Forces directed that a meeting be arranged with Tan Son Hai, the head of Kemer Serai in South Vietnam...
--- ... Tan Son Hai testified, by stipulation, that he did not desire to have the American Captain killed as he knew Lam had been a spy for Russia and that Lam wanted to serve the Cambodian government against the interests of the Kemer Serai. The Kemer Serai intended to kill Lam anyway as soon as he completed his employment with the Americans. Hai knew that Lam was a communist agent working for the Cambodian government...
--- ... Sergeant First Class Harry D. Brown testified that he is employed in a classified project directed by MACSOG and that his organization would not employ Inchin Hia Lam for security reasons. He had communicated this knowledge to Master Sergeant Rutherford of Detachment B-57 (Cherry)...
--- ... (Following is Discussion of Captain McCarthy by the government JAG office) -In June 1967, he was assigned to the S-3 section of Project Omega... he led 31 assault missions, and ... numerous reconnaissance missions... the basic part of his assignment... to enter enemy terrain, locate the enemy and call in conventional forces to meet them and destroy them. ... in Project Omega, he led Special Forces teams out of contact with the enemy while under hostile fire...
--- ... After Omega, he was assigned as Project Officer on Cherry, where he trained his unit (excised as prior)... In preparation for actual activities in Cherry, he made three practice parachute jumps dressed in civilian clothes, armed only with a .38 caliber pistol, 35 miles from Saigon, in an unsecured area...
--- ... When Cherry became active, he led a team (excised as before but this time reads into Cambodia) with the mission of destroying a bridge near an enemy troop concentration. It had been noted that buildings had been constructed by the enemy large enough to hold 10,000 enemy troops at any one time. Project Cherry was given the mission to destroy a bridge near this troop concentration in order to hinder the enemyís movement...
--- ... It appeared that the only way it could be destroyed (the above) was with atomic demolitions (next six lines excised as above - however it deals with the availability and locations of SADMs (atomic suitcase bombs) in SVN) (McCarthy did not actually enter Cambodia on this mission, it was a misunderstood rendering of classified material given. He did fly over Cambodia to take pictures of the bridge, however - the rest was accurate)
--- What the classified part did not reveal, the unclassified revealed that (page 13 of same document) Defense Counsel requested Tan Son Hai and Son Ngoc Thanh as witnesses on 16 January, 1968 (Son Ngoc Thanh, along with Lon Nol - were actual leaders in the 1970 overthrow of Prince Sihanouk)
--- ... In the Article 32 report, still classified, one page was given to CPT McCarthy prior to itís scheduled release in 1997. It was the testimony of SFC Hancock and does not appear in any other forum. It reads --- ... If the Kemer Serai (want the Americans to back Cambodia, which they thought... he (Jimmie) believed will happen, the Kemer Serai, goes in, overthrows the government, and removes the Prime Minister (meaning Sihanouk)...
Now relative to this testimony, we go to the Top Secret (and recently declassified over the objection of the CIA) files of the State Department. The following quotes are from those files (the same notes sent by e mail to Sen Kylís Office in October 2000) The format is from those e mails and I leave them in their original on line State Department format as much as is possible in this fax format. (all underlining is mine for emphasis)
--- ... 183. Memorandum From the President's Special Assistant (Rostow) to Secretary of State Rusk/1/ ... Washington, June 21, 1966. /1/Source: Department of State, Central Files, POL 32-1 CAMB-VIET S. Secret; Exdis. Read sent a memorandum to Rusk, Ball, and U. Alexis Johnson, June 22, informing them that he had asked the Policy Planning Staff to coordinate a response to Thompson's memorandum by June 28. Read's memorandum is attached, but not printed.
SUBJECT... Possible Approaches to the Cambodia Problem
This file is more or less self-explanatory.
In meeting with the NSC staff--urging us all to be imaginative--the President asked for proposals to get closer to Sihanouk. Jim Thomson did the attached paper. I sent it forward with the recommendation that I be instructed to request you to examine the proposals and make your recommendations. The President's enthusiasm is self-evident, including his reaction to pages 5-6.
--- ... Attachment
Memorandum From the President's Special Assistant (Rostow) to President Johnson
Washington, June 20, 1966, 10:30 a.m.
At your suggestion Jim Thomson has prepared the attached collection of imaginative initiatives with respect to Cambodia. My recommendation is that you instruct me to request Secretary Rusk to examine them and make his recommendations to you--understanding, however, that you wish movement on this problem.
/2/Johnson approved and wrote the following note: "This is excellent. I'm proud--L."
--- ... Attachment
Memorandum From James C. Thomson, Jr., of the National Security Council Staff to President Johnson
Washington, June 14, 1966, 6:30 p.m.
SUBJECT: Possible Approaches to the Cambodia Problem
In response to your request at our Cabinet Room meeting, I have been probing this town intensively for fresh ideas as to how we might improve our relations with Cambodia over the months ahead. ...
3. Avoidance of Provocations from Thailand
Despite periodic efforts in Washington and the field, there is still clear evidence of Thai (and Vietnamese) support for the anti-Sihanouk Khmer Serei forces (no more than 1000) on Cambodia's northwest frontier. The GVN trains Cambodians and ships them to Thailand where they are then put into action on the Cambodia border in order to broadcast anti-Sihanouk appeals and to foment frontier incidents. Sihanouk is still convinced of U.S. collusion with the dissidents. These activities, which stand no chance of success and run counter to our national interests, can only be turned off by a Presidential directive [less than 1 line of source text not declassified] repeated lower level protests have simply not been taken seriously by the GVN or the RTG. ...
1. That you indicate to the Department of State the high priority which you attach to an expansion of the ICC in Cambodia./4/
/4/Johnson approved and wrote: "Good & Strong!"
2. That you direct the Department and CIA to press the Thai and Vietnam Governments to cease all support for the Khmer Serei rebels./5/
/5/Johnson approved and wrote: "Same." and drew an arrow to the phrase "Good & Strong!"
3. That you ask State to consider and prepare a Presidential message to Sihanouk, to be carried either by the Senate mission or by Eugene Black./6/
/6/Johnson approved and wrote: "by both."
4. That you ask State to prepare a continuing program of unofficial visits by Americans to Phnom Penh and private contacts between U.S. and Cambodian diplomats./7/
/7/Johnson approved and wrote: "I heartily agree--Let's also include other countries where we need contacts (Latin America, Africa, Eastern Europe.)"7
JC Thomson Jr. ...
185. Memorandum From Acting Secretary of State Ball to President Johnson/1/
Washington, June 29, 1966.
/1/Source: Department of State, Central Files, POL CAMB-US. Secret. Drafted by Trueheart, cleared by U. Alexis Johnson and Berger.
1. I refer to the recommendations on Cambodia which you have approved/2/ and indicate below the action that has been and is being taken with respect to each of them.
/2/See Document 183 and its attachments. (above) ...
A. The Khmer Serei Problem
(1) Our efforts with the Thai and the Vietnamese on this have a long history. However, more recently, when we received intelligence last winter indicative of plans for a build-up of Khmer Serei forces and for large-scale attacks against Northwest Cambodia, Ambassador Lodge in Saigon and Ambassador Martin in Bangkok, acting on Secretary Rusk's personal instructions, made strong representations at the highest level to the governments of South Vietnam and of Thailand to urge an end to support of Khmer Serei activities. Both Prime Minister Ky and Prime Minister Thanom indicated a willingness to comply with our strongly-expressed wishes in this matter. ...
192. Memorandum From the Joint Chiefs of Staff to Secretary of Defense McNamara/1/
Washington, September 24, 1966.
/1/Source: Department of Defense, JCS Official Records, 9155 (1 Feb 1966) Sec. 1, IR 101. Top Secret; Sensitive.
Cross-Border Operations (U)
1. (S) Reference is made to:
a. Your memorandum, dated 13 June 1966, subject as above./2/
/2/References, a, c, and d are attached, but not printed.
b. A message from the Joint Chiefs of Staff to CINCPAC, 5374/271912Z June 1966, subject as above./3/
/3/Department of Defense, JCS Official Records, 9155.1 (14 Oct 65), Sec. 2, IR 6231.
c. A message from CINCPAC to the Joint Chiefs of Staff, 130401Z August 1966, subject as above.
d. A message from COMUSMACV to CINCPAC, 031206Z August 1966, subject as above.
e. A message from the Defense Intelligence Agency to CINCPAC, DIAAQ 4054/152257Z February 1966, subject: "Clandestine Collection Operations Against Cambodia (S)."/4/
(Note: The (S) above means the subject Clandestine Collection Operations Against Cambodia is classified Secret all by itself in this Top Secret Sensitive Document) ...
2. (TS) On 13 June 1966, you approved (reference 1a) the recommendation to organize, train, and equip an indigenous force of intelligence agents, reconnaissance teams, and reaction teams for possible future employment in cross-border operations into Cambodia. Authority was not granted to commit these forces into Cambodia.
3. (TS) The State Department view (reference 1a)/5/ that the recruitment of ethnic Cambodians (Khmer) should not be permitted was reflected in the guidance provided to CINCPAC by the Joint Chiefs of Staff in reference 1b. However, prior to receipt of this restriction, based on his interpretation of the guidance contained in reference 1e and on his visualized employment of the force (reference 1f) until such time as cross-border operations were authorized, COMUSMACV had already recruited and partially trained 40 ethnic Cambodians. These personnel were carefully screened to ensure that they were not Khmer Serei. (The emphasis above is mine and not in the original)...
5. (TS) The State Department's rationale in recommending against the use of Cambodian personnel is as follows: first, the Cambodian minority in Vietnam is strongly influenced by the Khmer Serei (Free Cambodia) movement and second, should Prince Sihanouk learn that a force of Khmers was being formed for cross-border operations into Cambodia, he would interpret this as a serious threat to his regime and be more likely than ever to cast his lot with the Chinese communists.
6. (TS) COMUSMACV's position (reference 1d), supported by CINCPAC (reference 1c), is that Cambodians who have lived in border regions are ideal for use in this type operation due to their familiarity with the area, language, and customs of the people. Furthermore, thorough screening, checking and investigation of all Cambodians recruited can minimize penetration of the operation by the Khmer Serei. (Again the emphasis is mine and is not in the original)...
c. All ethnic Cambodians recruited will be carefully screened to reduce the possibility of penetration of the program by Khmer Serei or Cambodian intelligence agents.
d. The program will not be identified as a potential cross-border operation into Cambodia, and use of the assets for in-country operations will support this contention.
8. (TS) Accordingly, the Joint Chiefs of Staff recommend:
a. Approval for the retention of the Cambodians now in the program.
b. Approval for recruitment of additional Cambodians in accordance with the above guidelines.
c. Forwarding a memorandum to the Secretary of State substantially as proposed in the Appendix hereto./6/ †
/6/The memorandum to the Department of State was not found attached, but in telegram 120 to CINCPAC, December 10, the JCS granted authority to retain the 40 Cambodians already recruited and trained so long as all necessary precautions were taken to minimize the risk of disclosing their association with cross-border operations. Authority was not granted for recruitment of additional ethnic Cambodians for cross-border operations. (Department of Defense, JCS Official Records, 9155 (1 Feb 1966), Sec. 1, IR 101)
For the Joint Chiefs of Staff:
David L. McDonald/7/
Joint Chiefs of Staff
/7/Printed from a copy that indicates McDonald signed the original. ....
From this, sirs, you can see that Cherry definitely went against Presidential Orders.The hiring of Khmer Serei operatives for Cherry and from Cherry by MACSOG likewise went against implementing JCS orders. That is defying Presidential Directives in time of war by the Agency (The real culprit behind Cherry).
In addition, if there is any doubt about this - from the LBJ Library comes these Secret documents about the Khmer Serei
--- ... November 23, 1963... From Saigon to Secretary of State No. 1065... Son Ngoc Thanh has for past several years supported group of about 200 rebels... group was apparently used by GVN to acquire intelligence... Under Diem regime group was supported partly by GVN and partly through contributions solicited from Ethnic Cambodians living in Vietnam...
--- ... November 26, 1963 ... From Saigon ... No. 1078... As delicately as possible, Kim (General Kim of the Junta) inquired if U.S. was furnishing any secret support to Khmer Seri. He was flatly assured that U.S. was not now and had not ever done so. .. Kim indicated GVN willing to call in Son Ngoc Than and tell him flatly that if he desires to remain in Vietnam, he must eschew all political activity... Kim indicated that U.S. would move to assure Vietnamese that these actions would not get GVN in trouble with Thais... Kim and Don seemed to be genuinely ignorant of past GVN dealings with Khmer Serei... and willing to follow American lead in this respect...
--- ... November 26, 1963... From Saigon... No. 1077... After Coup... former Vietnamese representative Nhan had been sent back to Phnom Penh to arrange for talks to improve relations. Nhan had in fact gotten Sihanoukís agreement to send Sonn San and Tioulong and another minister to Saigon... for discussions with GVN representatives. Unfortunately, when Sihanouk heard that rumors were circulating in Saigon of a coup in Phnom Penh, he became enraged and canceled mission... Minh, in presence of Kim, himself raised question of Khmer Serei radio and asked with apparently complete sincerity whether US was behind it. He was, of course, given categoric assurances that we were not behind this or any other machinations against Sihanouk...
--- ... November 26, 1963... From Saigon ... No. 1080... Don also referred, as Kim had done, to need to get Son Ngoc Thanh to desist from political activity but said nothing about possible problem with Thais... Don spoke in rather favorable terms of Sihanouk. He had excessive pride and this had to be catered to, but he was not a communist and he had the overwhelming support of the Cambodian people. Diem... had badly misjudged both Sihanouk and situation in Cambodia...
All these directly support Cherry being rogue. It also shows Agency was ignoring President Johnson, who as one of his first Presidential Decisions upheld the previous policy (noted above in State Department Documents) of not supporting Khmer Serei in any fashion. This was reiterated rather bluntly in the documents recently declassified from the State Department.
Now to the problem of CPT McCarthy. I already outlined his problem. You have the recantation of the pathologist CPT Mason (now a civilian doctor in California and doing the same work in a coronerís office). While considering whether to try CPT McCarthy once more for the murder of Lam (Jimmie), Eugene J. Murphy, a LTC and the Staff Judge Advocate at Fort Huachuca, wrote General Latta about the implications of Masonís recantation:
--- ... At the trial, Doctor (then Captain) Mason testified that the wound was a contact wound, caused by a caliber .25 or smaller. Subsequently, he aid the fatal bullet was a .38 caliber. Because he changed his opinion, his testimony at any new trial may be attacked as unreliable or not believable... (a footnote here said... At the Article 32 investigation, Captain Mason testified that the appearance of the wound was in keeping with a .22 caliber and that it was impossible to call it the result of a .38 caliber bullet)
--- ... Unfortunately for the appellant, Captain Masonís unrefuted testimony that the fatal wound was a contact wound ... also prevented exoneration based on accident, or even the possibility... that the victimís death could have been occasioned by a stray bullet. Captain Masonís critical testimony, particularly with regard to the caliber of the death weapon, not only had the effect of utterly destroying the appellantís credibility, but practically compelled the courtís conclusion that he was guilty of premeditated murder...
--- ... Based on all of the evidence, I recommend trial by General Court Martial on the charge of premeditated murder; however... I may wish to temper this recommendation... I deem it appropriate that certain security aspects of the case be discussed with legal counsel of the CIA... Therefore, I will advise you with a supplemental pre-trial advice subsequent to the aforementioned interview with counsel and discussion with CIA...
--- ... On 5 January 1971, Murphy wrote... Reference is made to: ... Captain Walkerís Trip Report of his visit to Washington D.C. area, dated 3 January 1971, which is presently classified Top Secret Working Papers... This is the supplemental advice... After review and reconsideration of all of the evidence and circumstances surrounding this case, including the aforementioned references, it is my opinion that reasonable men (a court martial) might find ... not guilty... Considering the totality of the circumstances (including the posture of all available evidence; classified issues; the weakening of government evidence; notably testimony of the pathologist... and the impracticality of a conviction at a retrial) it is my considered judgment and opinion that retrial is not warranted. I recommend that the charges be dismissed...
--- ... On March 5, 1984, McCarthy met with Lawrence Enterkin, head of the Court Martial Board that convicted him. From his transcribed March 12, 1984 notes, the following is relevant after Enterkin read Masonís recantation and the FBI report showing quartz on the bullet (fragment) extracted from Lam: Enterkin said - Well, Iíll say this. The FBI report is the strongest thing you have. Masonís recantation has a lot of holes in it as far as Iím concerned but I have to admit that the FBI report is conclusive. We would never have convicted you with that information.
--- ... The US Army, in 1968, trying to accommodate the testimony of Mason that Lam was killed with a .25 or smaller weapon with the fact that McCarthy was armed with a .38 pistol said this, in recommending the upholding of McCarthyís conviction: Certainly science cannot say absolutely that in every case under any facts, a .38 caliber bullet could not cause the results found in this case... They did not know of the FBI report which occurred prior to this writing or Masonís recantation which occurred after this writing.
--- ... On August 23, 2003, the LA Times ran a story of a California State Appellate Court which overturned a murder conviction after faulting prosecutors for not telling defense counsel that a deputy coroner who testified had a history of changing his testimony. Thus, the Army in 1971, was correct in their recommendation which is still upheld in civilian courts today.
In light of this, when McCarthy went to civil court after being rebuffed by the CIA and Army for recompense for the wrongs done him, he was denied justice by Department of Justice lawyers citing and the Court upholding the outdated Feres Doctrine. This doctrine holds that wrongs, even these, are exempt from being recompensed to the wronged. In Thornwell v. United States, the Court wrote - ... The Court acknowledges the precedent of Feres, but does not offer any approval for the sweep of that decision. Indeed, to this Court, Feres appears to grant an immunity which is broader than necessary and, as a result, the application of that immunity may at times lead to unconscionable results... In Jaffee v. United States the following colloquy occurred at oral argument before Judge Sterm: The Court: (A) s I read the law it does not matter if they stood up there and, ďone, two three, left, right, leftĒ and march them them over a cliff ... Youíd be protected under Feres... The Govt: Yes, your Honor... (emphasis is mine and not in the original)
There is more still, but you are now apprised of many new factors which supplement what was asserted earlier. This constitutes what reasonable men may consider to be treason against the United States in wartime in defying the President by a subordinate agency (the CIA).
Through classified and unclassified excerpts we showed -
(A) Assistance to a subversive element in a neutral country against Presidential orders in wartime
(B) The attempted overthrowing of a neutral government and conspiracy to commit first degree murder (Prince Sihanouk) against Presidential and JCS explicit directives in wartime
(C) False statements influencing foreign government in wartime
(D) Expedition against a friendly nation in wartime against Presidential and JCS Directives
(E) Conspiracy to obstruct justice in a capital murder case in wartime
(F) Conspiracy to commit perjury and the actual commission of perjury in a capital murder case in wartime
(G) Conspiracy to defame by libel of an officer of the United States Military for the past 35 years
(H) Conspiracy to deprive an officer of the United States Military of his civil rights for the past 35 years
(I) Numerous other high crimes, felonies, and misdemeanors like Failure to maintain adequate records (NCIC and discharge) which caused an officer of the United States Military to accept a plea agreement when no other evidence existed against him.
In the same Article 32 invesigative fragmentary report, it showed that Cherry, through Agency persistence, continued against all opposition until the Agency changed the policy of the government. They used the same Son Ngoc Thanh and Lon Nol to later overthrow Sihanouk with their assistance in 1970.
Under Feres, the Congress and the Court says that treason, under this possible definition, and all these other crimes against McCarthy, is protected by government immunity. What is egregiously ignored by the Courts and Congress re Feres is that McCarthy was acting as a civilian under the direct control of the CIA who ordered him to maintain proficiency in black terror operations of Khmer Serie personnel which is prohibited by the UCMJ, US Law and International Law, and as noted, in direct defiance of the desires of the President of The United States. This constitutes treason and subversion of the will of the President. Thus Feres is not a viable or appropriate defense for the criminal acts directed by the CIA and State Department.
This same Agency is undercutting President Bush today, using similar non-attributable tactics, while still keeping the details of this operation, Cherry, a Secret yet. Because of Cherry, and Feres, the Agency and those undercutting the President have that same guaranteed immunity if they use other people like they used McCarthy. Will they be able to persist until this President is driven from office, like Johnson was, and they are in control of our foreign policy, and not the sitting President?
We urge you to get in contact with us.
Larry J. OíDaniel
John J. McCarthy Jr.
To learn more about the Rogue Operation Cherry, press here
To See First Open Letter to Senators Kyl, Shelby, and Attorney General Ashcroft, press here
To learn about covert operations and possible treason in wartime, press here