Ours to Reason Why: Intervention in Vietnam, Reaction in America

East Auditorium, George C. Marshall Conference Center
Washington, D.C.
September 30, 2010

• Chair: Donald Ritchie, Historian, Senate Historical Office
• Frank Cain, University of New South Wales, “War for the Asking: How America Became Involved in the Vietnam War”
• Fabian Hilfrich, University of Edinburgh, “Contesting Patriotism: The Meanings of Patriotism and Dissent in the Debate on the Vietnam War (1964-1968)”
• Stephen Griffin, Tulane Law School, “The Legal Justification for the Vietnam War: Backwards and Forwards with Nicholas deB. Katzenbach”
• Commentator: David Anderson, California State University, Monterey Bay

DR. CARLAND: As we approach late afternoon, as I’ve said before, we’re going to bring the war home. Don Ritchie, Historian of the United States Senate, will chair our last session. It is titled, “Ours to Reason Why: Intervention in Vietnam, Reaction in America.” In the Senate Historical Office, Don has conducted oral histories, edited for publication the executive sessions of the Senate Foreign Relations Committee – which has a lot of wonderful Vietnam stuff, and I’ve enjoyed it – as well as other historical documents and provided reference and research for senators, scholars, and the media. That’s in the Senate world.

In the larger world, Don is a legendary raconteur of quality that makes his public addresses always a delight. His books include, Press Gallery: Congress and the Washington Correspondents, which won the Leopold Prize from the Organization of American Historians, Reporting from Washington: The History of the Washington Press Corps, and The U.S. Congress: A Very Short Introduction. Few political historians are better qualified than Don to put in context the papers to be presented here, papers that range from how we got into Vietnam and to its effect, political and otherwise, on the home front.

Don.

DR. RITCHIE: Thank you. I want to reiterate what all the other panels have said and that we appreciate John Carland and the Office of the Historian in putting together this extraordinary conference. One of its great strengths is the international quality of the conference, and this panel, I think, will live up to that as well.

Every war has a battlefront and a home front. And however you want to interpret the conditions on the battlefront in Vietnam, the policymakers lost the home front. Henry Kissinger opened this conference by stating that we cannot afford a divided a country in going to war. In fact, the policymakers had a united country in going to war. It’s just that during the course of the war, they failed to be able to explain the reasons for the war and why we were inflicting so much carnage and eventually created mass dissension at home. And the angry debate took place in the campuses, in the streets, and in the halls of Congress.

Since one of our papers today is on Nicholas Katzenbach, I’d like to quote from Katzenbach’s memoirs Some of It Was Fun in which he said, “By and large the Congress is not much help to a president in matters of foreign policy because of the lack of political profit in it.” Yet from his own experiences in dealing with Vietnam, it taught Katzenbach that the president alone, “simply cannot hold the overwhelming public support he needs for any length of time without the strong support of Congress.” And I think that’s one of those personal experiences that should inform all policymakers as to what the consequences can be.

We have a very strong panel here today. Our first speaker is Frank Cain who is a visiting fellow from the School of Humanities and Social Sciences at the University of New South Wales in Canberra. His research interests are the history of the Cold War, intelligence history, and labor history. He is the author of Economic Statecraft During the Cold War and also Terrorism and Intelligence in Australia: A History of ASIO and National Surveillance.

PROF. CAIN: Well, thank you. Thank you for that introduction and thank you, ladies and gentlemen, for staying back at this late time on the darkening night to listen to the wise words of our panel tonight. Thank you again. Thank you also, John, and the Office of the Historian for running this conference.

I’d also like to give a special thanks for – I don’t know whether you’re the object or the direct object for this – but to thank you for the large deposits of State Department papers that are lodged with the National Archives. I’ve used them a lot over the years and my last book on the economic statecraft was written entirely on that collection of the State Department. And even though it’s an economic history to a great extent, the State Department papers include a lot of material from the Defense section, from Commerce, and so on. So there is a marvelous collection and I can only congratulate you on them and also urge you to release more and more of it, more and more of it. We want – we authors would like to see more and more of these papers and also to have them cleared, ready for use.

Right, so with that little thank you to you, let’s move on now to discuss the – how America got involved in the war. Now, with all history it’s a matter of selection. It’s a matter of sorting through what is available and putting some emphasis here or there on the arguments put forward. And these are my arguments. They probably will – some of you might find them rather extreme or perhaps unqualified, but, nevertheless, I put them forward and maybe we can – we may have some time at the end to discuss them if you think they’re too overly simplistic.

Right, well, let’s – the war really starts with the French returning to Indochina to restore French control over the – Indochina, and they do this because they have been defeated very badly in the war and they’ve been split into two groupings, the sort of the pro-fascist group and the pre-French group. And they have to try and restore some sort of status to themselves as a large power and they, unfortunately, don’t do what the Dutch did, for instance, with Indonesia.

Whereas the Dutch thought about returning and then realized it was absolutely impossible and, therefore, gave independence to the Indonesians, the French just kept battling and battling. They really wanted to insist that they come back. And they brought back an army with them – 70,000 men in the French Expeditionary Corps so they could reestablish themselves on the points of the bayonets, because they were so desperate to do this. And it’s rather unfortunate that they did this. Ambassador Negroponte was saying that – the what-ifs of history. And wouldn’t it be marvelous in – among the what-ifs if the French had decided not to stay there like the Dutch did. That is to leave and allow Indochina nationalism to emerge.

And this would have been a marvelous thing to have come out so the three million Vietnamese who died would still be with us and the 60,000 U.S. dead would be still with us and the 500 Australian dead would still be with us. So this is one of the interesting turning points of history and it’s a theme that I’m trying to develop with my book on this topic and I hope I can bring out tonight as well.

Well, another theme to be included in this is that of China, the giant China. And what happened, of course, in China is that the United States supported the Chinese Government, the Kuomintang Government under Chiang Kai-shek and then continued to support after the war. It had been an ally against the Japanese and so it was understandable the U.S. continue to support it. But unfortunately, Chiang was very weak; his government was very weak, and it was corrupt, and he was really more interested in harboring his resources so he could fight the communists under Mao Zedong who had gone on the Long March to the north to Hunan, and he looked forward to that civil war that was going to emerge.

So unfortunately, he wasn’t very interested in fighting the Japanese. He was more interested, as I say, in harboring his resources for this. And then there was internal division within the Kuomintang itself and this, of course, was quite abhorrent to the American officials who were there. General Stilwell sent back constant reports about the incompetence of Chiang. But nevertheless, the Americans were sort of in there for the long term. And eventually, of course, the communist forces moved south and Chiang actually resigned on January, 1949, abandoned his generalissimo status, and moved to Formosa to establish the – sort of the government – the Chinese Government with the intention of resuming and reinvading or invading the mainland.

So the whole disappearance of the Kuomintang is sort of – ended in a murmur rather than a bang. And that meant that the PRC was able to get established. The forces that were supporting Chiang switched to support the Mao Zedong forces and so this led to the establishment of the People’s Republic of China in October, 1949. So that’s an important theme and I’m trying to understand what is happening in Indochina, because the PRC, of course, was the means by which the DRV is going to be able to establish the military force to be able to conduct their war and to drive southwards.

So – and the establishment of the DRV is very important, of course. It was established in that period between the surrender of the Japanese and the return of the French. So this was led, of course, by Ho Chi Minh, the famous nationalist and it was set up as a functioning organization. And for a while the French even, for a short term, accepted it as being a – as a reasonable alternative government.

So that didn’t last very long and the French were prepared to fight to be able to get back in again and the French navy shelled Haiphong and killed 6,000 local people in this, and then this led later to the flight of the government. The DRV Government could see that they didn’t have the resources to fight the French at this stage, so they fled. They just left Hanoi and fled into the mountains. The VietBacInter-zone base in the northern mountains of North Vietnam and they functioned as a – not so much a government in exile, but as sort of a continuing government which sounds quite remarkable because they continued to act as an important force until the French themselves withdrew. So this running the DRV out of the cave system in Northern Vietnam is a remarkable sort of effort.

Then the French appointed Bao Dai as the leader of the Nationalist French – of the Nationalist Indochina and Bao Dai was a descendent of the Imperial Family. And he had been a puppet – he had led the puppet government during the Japanese occupation. And he’s really assuming another role now as another puppet governor of Indochina. And he – it was really never accepted by the French. They never set him up in Saigon in the, sort of, the Governor’s Palace. He was – he had to stay in Da Lat, a city to the north of Saigon. So he was sort of – as I say, sort of a puppet or an unofficial governor of these territories.

So – but nevertheless, he had the legitimacy in the eyes of the – many other countries of the world and his government was recognized mainly by western countries and the DRV continued to be represented – still would be recognized by the communist countries. So this brought, of course, Indochina into the Cold War situation.

Well, Truman extended aid to what he termed as the General Area of China in July, 1949. And that’s rather interesting, of course, because it’s not until October 1949 that the PRC is established, but Truman sees that, of course, that the PRC is well on their way and that’s why he votes this money to the General Area of China. Well, what is meant by the General Area of China? Well, what he actually meant was all the regions around China, Southeast Asia, and so on, and the Chiefs of Staff, they come up with a conclusion of, sort of, the allocation of this money, and they allocate 15 million of that to Indochina. So the American aid starts really flowing from about July 1949.

And not only that, but also the Americans move in with other social and economic systems. The Economic Cooperation Administration, the ECA is established that gives aid to the rebuilding to the roads and bridges and that sort of thing. The Americans also set up a thing known as STM; that’s the Special Technical Mission and that gives financial aid for cooperatives.

In addition to that, an organization known as MAAG, M double-A G, which stands for the Military Assistance and Advisory Group, is established to oversee the distribution of military aid to the Indochina territories. So you have that, sort of that administrative system being established as well. And I think that’s very important to understanding why America is drawn into this situation in Vietnam, because not only are they giving military aid and they’re funding the military assistance, but of course they’re setting up these administrative systems as well. So that’s another reason why they’re, of course, induced to stay on there.

Well, on the other hand, of course, the PRC then sends aid into the Vietminh and the Vietminh troops are sent across the border into China just with sandals and clothing because they’re going to be trained there, they’re going to be given new uniforms, they’re going to be armed and equipped, and they’re going to be trucked back down to – back into North Vietnam again. So this is a very important development and, of course, the Americans see this as well, that they – that the change in China is going to be a big generating force for change in Vietnam as well.

Well, Bao Dai is the Nationalist in charge. He has tremendous financial problems. He has these huge deficits, which curiously the French fund for him. And the – and then also there’s a big military development here, a big military buildup. The Vietminh establish an army of 100,000 for guerilla fighting. Bao Dai – there’s a 70 – has the 70,000 French Expeditionary Corps, but also his own sort of Indochinese forces. That’s a 150,000 army that he’s got.

So the argument then, of course, comes up with – and this is another important element, I think, is the development within America itself of the motto of who lost China – who lost China for us. And this, for course is a – there’s a plea that is expressed mainly by the Republican forces because they wish to embarrass the Democrats who, of course, the Truman Administration was there when the Communists took over power in China. So that becomes an important theme, I think, because later on, even the Republicans are going to be aware that they could possibly lose Vietnam. So this question of blame and loss becomes an important psychological factor, I think, in America. And that’s another theme, I think, we should always consider in trying to explain why the Americans got involved in Vietnam.

Well, as we know, the United States pressed the French to divest power to the Vietnamese. They can see that the way the French were going was quite impossible. They couldn’t continue to run it just as an autocracy. They had to incorporate the nationalist spirit. They had to have some sort of – it may be an electoral system or something like that. But Bao Dai was resistant to that. But nevertheless, the Americans did continue to pour in arms and equipment. Eisenhower gave a large amount of money and equipment because he wanted to persuade the French that they should be more accommodating to changes in Europe; that is that they should be more accommodating to Germany merging into the European society. So it was sort of a doubled reward for the French in – that is aid for Indochina and also aid in Europe.

This, of course, brings in the very important person John Foster Dulles who’s the Secretary of State and he sets up an organization known as SEATO, the Southeast Asia Treaty Organization, and I think that’s a very important organization that’s disappeared now off the map. But it was his intention of bringing all together the countries that have any involvement in Southeast Asia; that is Britain, France, Australia, New Zealand, Thailand, Philippines, and that’s it. So he was trying to bring an organization that would hold the expansion of China and also try and preserve the – or stop the Communists coming to power in Indochina as well.

And that’s, as I say, a very important development and it does have some important effect, because that’s really the reason why Australia gets involved in the Vietnam War. It’s this appeal to SEATO and also the more flags that we heard about in other discussions today.

So this leads us on then to the Geneva Conference. The French now are becoming exhausted. They – there is resentment at home at the huge investment in – thank you – in Indochina and they are really prepared to go, but it’s a matter of finding a means to go. And so there’s a discussion about four-power conferences and five-power conferences. And the conference in Geneva, therefore, turns into a means of settling not only the Korean War, but also set things with the Vietnam War. And the outcome, of course, is – the big outcome is that the Mendes-France government is elected in Paris and Mendes-France is a man who’s been – a leader who is constantly arguing that France should withdraw from Indochina. He’s now the prime minister and he’s able to start suing for peace and thinking about some sort of political settlement in Indochina.

So that’s the – that starts to be the withdrawal of France and is hastened, of course, by the Battle of Dien Bien Phu, which you’re all very familiar with this strange battle conducted in a very remote area on the Laotian-Vietnamese border. And we still don’t know why it was fought, but at any rate it was, and lost by the French and that really hastens their disappearance.

So now what happens is of course is that Vietnam is going to now slide into the much larger war that we’ve been talking about so much in the last two days. As we know, the Kennedy Administration takes over. He has this bright idea about sending in advisors to help the Vietnamese fight off the Communists. That doesn’t work. He’s replaced by Johnson, and Johnson, of course, is going to be the man who doesn’t lose Vietnam. So this concept of loss and blame reemerges again.

So these are the sort of various themes of – I’ve skipped over a number of them. And as I’ve said, you probably will – some people will probably argue with my selection. So I think I’ll leave it there and maybe we can take up further in later discussion. (Applause.)

DR. RITCHIE: Thank you. Because of time constraints, I think I’m going to make a switch in the order at this stage in the game since Stephen Griffin has a plane that he’s got to catch at the end of this conference. So I’m going to go next to Stephen Griffin who is a professor of constitutional law at Tulane University Law School in New Orleans. He holds law degrees from the University of Kansas and New York University. He’s also taught at the University of Chicago. His books include American Constitutionalism: From Theory to Politics and A Reader of Constitutional Theory. I wish he would be able to explain to us today why so many candidates in this election are running as constitutional defenders, and they’re all proposing constitutional amendments as part of their campaigns.

PROF. GRIFFIN: Thanks very much. I appreciate the substitution and I believe I’m the only legal academic here. So I wanted to extend a special thank you to the Office of the Historian for whatever black magic was done to get me on the program with such distinguished historians. It’s – really, the level of discussion in this conference has been awe inspiring for someone who largely has to follow the Vietnam debates through the secondary literature.

My paper uses Under Secretary of State Nicholas Katzenbach’s 1967 testimony in front of the Senate Foreign Relations Committee as a point of departure to understand past and present arguments on war powers. That testimony brought to a head constitutional issues that had been simmering throughout the war. Katzenbach particularly upset the committed by contending that the Tonkin Gulf Resolution was the quote “functional equivalent” of a declaration of war.

Senators understood him to mean that Congress had no effective role in the decision of whether the nation went to war and took great offense. But Katzenbach was no ordinary witness. He had been Attorney General before moving to State having served in the Department of Justice throughout the Kennedy Administration as head of the elite Office of Legal Council and then as Deputy Attorney General. He was familiar with constitutional and international law and had formally advised President Johnson as Attorney General on the legality of the war as Johnson made crucial decisions in 1965, two years earlier.

Looking past the immediate controversy caused by his testimony, Katzenbach’s statement was one of the most detailed public presentations of the official position of the executive branch on war powers during the Cold War era. As one might expect, it was consistent with the advice President Johnson had been given behind closed doors. On closer inspection, it showed the consistency of the executive branch’s position throughout the Cold War. In broad terms, this position had three elements. First, war powers were shared between the executive and legislative branches, with their meaning being determined largely by historical practice. Second, whatever the meaning of Congress’s power to “declare war” under Article I section 8 of the Constitution, it was not a check on presidential war powers. Third, declarations of war had been rendered obsolete in the new international legal order given life in the UN Charter.

So then I summarize in my paper Katzenbach’s testimony and also the advice given by the legal advisor at the State Department at the time.

His testimony was very much a sophisticated international lawyer’s view of postwar history. In this telling, prior to the adoption of the UN Charter, declarations of war were used to announce military adventures of aggression and conquest. This was presumably the meaning such acts had when the Constitution was adopted, Katzenbach implied. But with the acceptance of the Charter came the abolition of war as a matter of international law and the obsolescence of declarations of war. Katzenbach implied strongly that the “declare war” clause was therefore outdated. When asked about the Vietnam War and the role of the Tonkin Gulf Resolution, he made the instantly controversial remark that the Resolution was the “functional equivalent of the constitutional obligation expressed in the provision of the Constitution with respect to declaring war;” a kind of wordy way of saying it was the functional equivalent.

Katzenbach did not state that the president’s authority to wage the war was essentially based on or limited to the resolution. President Johnson made this clear in a statement while the hearings were occurring, a reiteration of a position he had first taken publicly two years earlier in 1965. Even without the resolution, according to this position of the executive branch was that the president had sole authority to intervene in Vietnam on whatever terms he saw fit.

Before moving backwards from these mid-1960s arguments to the 1950 Korea decision which is implicated for reasons I’ll discuss, I want to make three brief points about not only Katzenbach’s testimony but the legal advisor’s advice unto which unfortunately I can’t summarize.

First, they didn’t provide much in the way of legal authority for their positions. Their statements were more in the nature of position taking. This is not to say they were wrong, but it does highlight how their arguments were dependent on a historical consensus about the meaning of events, such as the Korean intervention, rather than on how those events figured in some valid form of legal argument.

Second, the framework in which Katzenbach and the legal advisor approached the question of the legality of the war was, to a substantial degree, shared by members of Congress. That is, members of Congress accepted that the president should take the lead in matters of foreign affairs, even when such matters involved committing troops to combat.

Third, legal scholars have not paid sufficient attention to how these statements were broadly consistent with the position taken by the executive branch throughout the Cold War. While Johnson probably believed that President Truman had made a mistake in not asking for a resolution to justify the Korean intervention, this did not mean he believed that such resolutions were legally or constitutionally required. This stance has confused senators and scholars then and now. But it is reasonably supported by the historical record. The perspective Katzenbach provided in his 1967 testimony had deep roots at the State Department.

In fact, I think the modern version of a broad view of presidential war powers started when Secretary of State Acheson had a memorandum published supporting the constitutionality of Truman’s decision to intervene in Korea with military force. Its thrust was that prior instances of presidents ordering the military to use force to protect specific American lives and property and in the broad interest of American foreign policy provided support for the Korea decision. These instances were framed within the adoption of the UN Charter, which the memo described as a landmark in the development of American foreign policy and the creation of a new international legal order.

The memorandum pursued the argument that Truman’s action was justified under the charter in order to ensure the continued existence of the United Nations. This was followed by a list, a very famous list of 85 occasions in which the President had used U.S. armed forces without authorization from Congress for purposes related to foreign affairs and the protection of American citizens. Contemporary versions of this list are now up to over 200 instances.

From a lawyer’s point of view, the memorandum was curious in several respects. It defined the issue in an odd way, invoking the Commander in Chief clause as the constitutional authority for Truman’s action, but in the context of sending armed forces abroad rather than deciding to go to war with a foreign power. It makes a difference.

The textural basis for congressional authority in this area were not discussed, nor was there any discussion of the history of the adoption of the Constitution, views of important members of the founding generation, practice in the early Republic, or a thorough review of judicial precedent.

In developing a postwar view concerning presidential war powers, the State Department might have taken inspiration from arguments made during World War II concerning the establishment of a new system of collective security. And in the paper, I discussed an example, a pamphlet – a substantial pamphlet published by James Grafton Rogers in 1945, someone who had served in the State Department in the Hoover Administration, arguing that the U.S. essentially could participate in a system of collective security in a system where the consent of Congress would not be required for every use of the new military force.

So the main lines of the State Department’s case for a broad view of executive war power were these. War powers are shared between the executive and legislative branches with a significant sphere of independent authority reserved to the President. The Congressional power to declare war is not a source of exclusive authority over the use of the armed forces, and comes into play only on rare occasions and never in the postwar period. The international legal order given birth by the UN Charter constitutes another source of authority for the President as well as serving as an explanation for the obsolescence of declarations of war. And indeed, as far as I can tell – and this was pointed out by Administration defenders during the war – no country has declared war since 1945, not just us. All of these lines of argument came together in Katzenbach’s 1967 testimony.

Now, before I turn to analyzing it from a legal point of view, I want to note some reasons why the debate over the legality of the war was especially tangled and unproductive. These reasons were the product of historical circumstances and had nothing to do, strictly speaking, with the quality of the legal reasoning, but they did affect the debate.

To an extent that is surprising today, neither side in the Vietnam era debates wanted to talk much about the significant role declarations of war had played in the twentieth century in authorizing World Wars I and II. No one wanted to talk about the run-up to World War I or the debates over the League of Nations. No one wanted to discuss the events that led to World War II, possibly because the dominant opinion among political elites was that America had waited far too long to enter the conflict against Nazi Germany. So the role of Congressional declarations of war, their historical meaning for the people who were around at the time in the twentieth century went unexamined.

Another problem was that members of Congress critical of the war were never in any mood to admit the possibility that the Tonkin Gulf Resolution was fully effective to authorize the war. This led to a great deal of talk still prominent today among historians about the war being undeclared. But we legal scholars would like to know what you mean when you say that. Are you meaning – do you mean that the war was in some sense in legal doubt?

This question is harder to answer, since everyone agreed Congress had taken some legislative steps, including authorization of funding, to approve what was happening in Southeast Asia. At the same time, members of Congress skeptical of the war at the time raised a good issue for the future. If formal declarations of war were outmoded, as the executive branch claimed, how would Congress participate effectively in future decisions to engage in armed conflict?

So now I’m going to discuss the legal status of the Vietnam War directly, although, hopefully maintaining a historical perspective. It’s a little difficult because as soon as you take a stance on the legality of the war, in a sense you become part of the history that I’m trying to describe. And there are enough legal commentaries on presidential war powers, and I’m not trying to add to them in a doctrinal sense. I think we can gain some critical distance on the constitutional issues by observing that the state of legal knowledge on presidential war powers itself has a history. Most legal scholars, even those very expert and prominent in the 1960s had not thought much about presidential war powers and understandably floundered somewhat in the subsequent debate.

The lack of case law was a serious problem. American constitutional law is firmly based on the common law tradition. To oversimplify a bit, this means there is no law without precedents and there are very few meaningful precedents in the area of war powers. This gave competent lawyers very little to work with. After a time, legal scholars realized that declaring war could be accomplished by any means of enactment open to Congress. Any number of authorities could be cited for this proposition, but given that Katzenbach’s testimony looked to considerations of both constitutional and international law, I suggest Louis Henkin’s respected treatise on the law of foreign affairs is a good place to start.

Like most legal scholars, Henkin believed it was indisputable that President Johnson had the necessary constitutional authority to wage war in Vietnam from the resolution as well as later appropriations and enactments. He also acknowledged that the UN Charter was designed to outlaw war and to transform, if not eliminate the traditional law of war. However, Henkin contended, as many scholars have, that the UN Charter cannot affect our domestic law that is war powers under the Constitution; it’s not a constitutional amendment.

Finally, while Henkin noted that some critics of the war had expressed the view that Congress can decide for war only by formal declaration, he thought that was clearly wrong as Congress could employ a variety of means. Henkin’s treatment of these issues, although fairly standard among legal scholars, differs from many historical accounts. It seems to me that the controversy over Katzenbach’s testimony and the much broader dispute over the resolution had the effect of misleading historians about the legal status of the war.

Contrary to what historians may believe, the resolution was fully affected to justify the war in a constitutional sense. So Vietnam was not an undeclared war if by that you mean it was not constitutionally authorized. The appropriate focus from a constitutional point of view, although I admit this would require a lot of further argument, is whether the Constitution – whether a war is authorized, not whether there is a literal document with “declaration of war” written across the top.

This can change your view of history because this means that the list of authorized wars is longer than the typical list of declared wars, the so-called five declared wars. The list of authorized wars includes the quasi-war with France, the naval encounters with the Barbary states, Vietnam, the 1991 Gulf War, and the recent wars in Afghanistan and Iraq. This shows, if anything, a continuous practice of such authorization, a tradition which tends to make lawyers feel good, a tradition that connects the eighteenth century to our own.

The most recent scholarship on war powers continues to emphasize that what is important is for Congress to authorize wars whether by declarations or other legislative means. Most constitutional scholars agree that the recent authorizations to use military force, the AUMFs employed both for the wars in Afghanistan and Iraq are the legal and constitutional equivalents of declarations of war. The most extensive reexamination of the Gulf of Tonkin resolution conducted by John Hart Ely, one of the most influential constitutional law scholars of the last half of the twentieth century, reached the same conclusion.

While this certainly does not address all of the political issues surrounding how the Johnson Administration obtained congressional assent in 1964, it does point out the continuing relevance both on a legal and policy level of the resolution. In his recently published memoir, Katzenbach addressed the controversy caused by his 1967 testimony. He remarked that, “My position has been vindicated by all subsequent scholars, but infuriated many members of the committee.”

Well, Katzenbach is correct to say that it is now accepted that congressional authorizations to engage in armed conflict are the constitutional equivalents of declarations of war. Many commentators would also support Katzenbach’s claim that the UN Charter altered the international law of war.

What of the sturm and drang over the circumstances in which the Resolution was passed? While some senators like Fulbright spent years complaining about how the Johnson Administration got the resolution through Congress, I think we should take note of Henkin’s perceptive observation that the critics of the war were best understood as filing a complaint against what the Constitution allowed, rather than identifying a usurpation of its commands – something still worth thinking about.

While there’s a large measure of agreement today among legal scholars with Katzenbach on the points I just mentioned, time has not stilled the controversy over the broader position the executive branch took during the Vietnam War and the Cold War. The Johnson Administration did not argue merely that the resolution provided the authority that was required. It also made the point repeatedly that the resolution was not required. That is, it was not legally obligatory. Here there is strong and continuing disagreement with many of the scholars I have cited just recently agreeing that the resolution was constitutionally required before the President sent troops to fight the war abroad.

The war powers debate has suffered from a general lack of historical perspective, I think. I don’t think legal scholars have spent much attention, paid much attention to this consistent position of the branch, the executive branch. It became clear, for example, during the 1991 Gulf War that President George H.W. Bush took this position. At the time, scholars were somewhat incredulous and did not believe Bush’s view has any historical antecedents. But Bush was serious in contending that he had sole authority to send American troops into combat. Members of his national security team believed, like their predecessors, that war was one instrument among others in the making of foreign policy, and that the President had to control it.

Now, since I’m running out of time, I do want to notice – and don’t want to overpraise Katzenbach – I want to notice two pretty serious problems with his testimony, what he had to say, real quickly.

First, Katzenbach took for granted the validity of the Korea precedent. He thought that no one could argue that Truman’s action was unconstitutional. But the weight of scholarly commentary today is not only critical of Truman, but identifies his 1950 decision as the moment when presidential war powers ran off the rails.

Further Katzenbach’s interpretation of the war clause created a problem. He made a point of stating to Johnson that a declaration of war would be needed only in the case of a quote “all out war.” I quote that because that position has been taken most recently by a scholar you might have heard about, John Yoo. Now, this successfully identified a role for Congress, but at the cost of rendering Katzenbach’s interpretation of the clause – declare war clause completely ad hoc. But prior to the Cold War, there was no supporting authority for this argument, nor did he cite any.

The other problem with his testimony was that he relied on historical practice, this list of the past wars. And I don’t have time, unfortunately, to go into all the problems caused by this list. This list is more of a black box denuded of historical context than a living tradition. And rather than wrap it up with some more on Katzenbach, I want to be respectful of my times and I have time pressures myself. And I’m happy to send the full paper to anyone who’s interested. Thanks very much. (Applause.)

DR. RITCHIE: Thank you for those, I think, very significant remarks. I’m going to use my abilities as chair at this point to interrupt our program to bring us a word from our sponsor, and that is really our host for this meeting. Ambassador Brynn, we appreciate everything that you’ve done for us for this meeting, and we give you a few seconds at this – on the podium.

AMBASSADOR BRYNN: Thank you, Don. I appreciate everything you’ve done for us and I’m going to have to run, but I did want to take this moment and will be no more than five minutes to say, first of all, thank you to Department of State, to Assistant Secretary Crowley, and to the Bureau of Public Affairs for their work in making this possible. Most importantly, a thanks to Dr. John Carland who I think we should give a round of applause to -- (applause) – and to Margaret Morissey who has been the silent operator to make this whole thing. (Applause.) Margaret, your halo is in the mail. (Laughter.) And to the committee that worked with John in HO, a core group of fantastic people who really have helped to put this together with the very forthcoming assistance of everybody else in HO. This has really been a team effort. Ironically, I have probably done the least for this, but here I am up here to celebrate all the work that HO has done. Just a few comments. I thought it was profoundly significant that we had the presence here of a delegation from the Socialist Republic of Vietnam both representing the country in a diplomatic sense and in a scholarly sense. This is certainly an epical event and says volumes about the new relationship between Vietnam and the United States. Secondly, on a more poignant note, this may be one of the last major conferences where we are going to have the advantage of actual players in the formative years of the conflict in Vietnam. The verdict is out on where they stood and where we think they should have stood on this thing. But seeing the – some of the heavies, in a figurative sense, here I think really is a remarkable tribute to Dr. Carland and to everybody who helped make this conference possible. Third, we certainly have not come to closure on Vietnam. And therefore, I hope that, John, you’ll be preparing another conference here down the road. We’ll give you a couple weeks off. Fourth, we have access now to a whole rich range of new resources because, partly, things are coming up in other archives. But the FRUS series of the United States which is now coming out in a number of volumes dealing with Vietnam is a major addition to the corpus of knowledge that will be used by all you scholars to inform us in the future. And I’d like to specifically celebrate the work of HO in – the Historical Office in the production of the FRUS series regarding Vietnam. This is a watershed era, and I think having the conference to coincide with this watershed is very important. I am going to thank all of you scholars, students, panelists, presenters who have brought to this conference an extraordinarily high quality of presentation. And I will close with one little poignant personal remark. I was assigned to Tan Son Nhut – I was posted to go to Tan Son Nhut Air Force Base in 1969 as a very young air force – very junior air force officer, probably young as well. And I took advantage of the fact that I spoke rather executable French to spend many evenings or some evenings at a local bar to reinforce my French, of course, and drink some Trente-Trois bier and I met a guy who was the owner of this little place and he served up some food as well. Of course, then that was in 1969, never thought much more about him until exactly 10 years later in June of 1979 when I was driving up from Abidjan and I reached Northern Cote D’Ivoire and stopped in Ferkessedougou to find a little place. So then I – who in God’s name was the owner of the auberge but this guy. (Laughter.) We sat there and drank more beer that evening and he said to me, “Mr. Brynn, someday somebody’s going to publish a volume which will explain the war in Vietnam.” Thank you. (Applause)

DR. RITCHIE: Thank you very much. We’ve been talking about the international nature of this conference, and our next speaker is a truly international person. Fabian Hilfrich is a lecturer in American history at the University of Edinburgh. He did his undergraduate studies in Munich. He got his master’s degree at Washington University in St. Louis and a Ph.D. from the Free University of Berlin. His interests are in nationalism and imperialism, and his writing has been on Vietnam and the Philippines. And so that sums up quite an international package, I think, for our next speaker.

PROF. HILFRICH: Thank you for the kind introduction, and I also don’t want to miss joining everyone in thanking you for this fantastic conference and the great organization. I wish the – the only complaint that I might have is that I was actually coming here from Scotland hoping for a little better weather, but – (laughter) – I guess at least I can say that your rain is a lot warmer than ours. (Laughter.) Now, let me take my allotted time to talk a little bit about the Vietnam War debate, and specifically about the role of patriotism and dissent in the Vietnam War debate. Now, in democratic societies, dissent can be a problem – dissent in wartime. On the one hand, freedom of speech is, of course, a fundamental democratic right that cannot be suspended at will. On the other hand, widespread dissent can undermine the appearance of a united home front, which can be a crucial quasi-military asset, as was particularly true in the limited war setting of the Vietnam War, where victory consisted of convincing the enemy to stand down, not of defeating him completely. Policymakers, therefore, considered it indispensable that the enemy believe that the United States was committed to the war effort.

Now, this dilemma between democracy and wartime needs circumscribed the rationale, but also some of the limitations of government efforts to tackle domestic dissent. My paper today analyzes the rhetorical strategies the Johnson and Nixon Administrations used to de-legitimize dissent without banning it, as well as the responses of the critics to such efforts. This sort of sub-debate of the Vietnam War debate on the legitimacy of dissent in wartime culminated in rivaling definitions of patriotism, which actually perfectly fit Alexis de Tocqueville’s distinction between instinctive and reflective types of patriotism. Whereas the former, the instinctive patriotism, demands collective and automatic loyalty to the nation as such, the latter focuses the individual’s loyalties on the nation’s democratic ideals.

From this finding, we can draw several important conclusions about the Vietnam War debate. The fact that most critics do not cede the patriotic label to the interventionists demonstrates that the Vietnam War did not destroy a fundamental consensus on American exceptionalism. At the same time, however, the disagreement about the meaning of patriotism points to a deeper disagreement about the essence of the American national character. The interventionists’ instinctive patriotism was a symptom of an otherwise increasingly nationalist and chauvinist rhetoric which focused on military prowess and dramatized the threat of Vietnam to the very survival of the United States as a nation – in other words, a nationalism that invoked the nation as such. The dissenters, by contrast, clung to a democratic understanding of their nation’s essence, believing America was threatened more by the administrations’ war policies than by the enemy from without.

This debate on dissent and patriotism also lets us observe how certain rhetorical strategies work in wartime generally, and specifically in the context of a limited war. Instinctive patriotic appeals internalized the war, creating the impression that the dissenters, rather than the enemies, were to blame for the stalemate in Vietnam. This dramatic narrative was more effective than that of a democratic crusade on behalf of South Vietnam – of course, the other main justification used by the government. Yet the conception of Vietnam as a limited war with safeguards against potential escalation prevented the government from exploiting this emotional reservoir to its fullest.

The right to dissent was, to be sure, rarely questioned on principle, particularly not in the early years of the conflict. Both Presidents Johnson and Nixon affirmed the constitutional right to free speech, often labeling it, and I quote, “the strength of the American system instead of a weakness.” This was not only a necessary affirmation in a democracy, it also enabled the government to make the connection to Vietnam, where they claimed to be fighting for just such rights.

Behind closed doors, however, Johnson and Nixon felt quite differently. They refused to believe their own intelligence services, which found no evidence of communist subversion of the antiwar movement. They toyed with the idea of censorship and they blurred or violated constitutional safeguards in order to control antiwar groups. Rhetorically, which is more important for my purposes, there were subtler ways to de-legitimize protest.

As in other conflicts, defenders of the Vietnam War implied quite simply that the critics were cowards. Democratic Senator Thomas Dodd attacked the, quote, “querulous, faint-hearted chorus of those who always ask for the price of victory.” And Secretary of State Dean Rusk referred to the dissenters simply as quitters.

In contrast to other wars, this discourse of a deficit in masculinity was frequently sublimated in the language of foreign policy realism, a supposedly dispassionate conception of international relations founded on the national interest. A realist evaluation of the situation, the interventionists claimed, could only lead to the conclusion that the war had to be fought. Consequently, critics were also attacked as naïve and gullible. In a further variation on this theme, interventionists added that only the executive possessed the information necessary for an informed judgment, but that it could not share it for security reasons. The implication, of course, was that the president ought to be trusted with making the right decisions. Now, we’re all also familiar with this executive privilege of knowledge argument from the early days of the Iraq War, when we were similarly asked to trust the government’s information on WMD in Iraq.

The most damaging line of attack was the equation of dissent with treason, more specifically that it emboldened the enemy, demoralized and endangered American soldiers abroad. Again in public, the government tread lightly. The closest President Johnson came to charging his opponents with treason was the frequently-repeated concern that dissent might send, quote, “false signals,” both to Hanoi and to the Viet Cong. Partisan politicians and pundits were less circumspect. In the National Review, for example, James Fletcher flatly assigned moral responsibility for the victims of the Tet Offensive to the dissenters at home, a move which seriously questioned the very legitimacy of antiwar opposition.

Behind closed doors, however, Administration officials were as sanguine as Fletcher, considering the home front as, quote, “the weakest chink in the nation’s armor,” and the critics as responsible for the setbacks in Vietnam. When Richard Nixon asked Dean Rusk in 1968 [?] where the war had been lost, Rusk responded laconically, in the editorial rooms of this country.

Now, such thinking internalized the conflict. Stamina and willpower on the home front became more important than military victories on the battlefront, and the antiwar movement emerged as the real enemy. There may have been some truth to this interpretation in the context of a limited war, which was predicated on convincing the enemy that the United States would stay the course. Nevertheless, this reading turned into an obsession, one that conveniently shifted the blame for an unsuccessful and ill-conceived war. It also flattered the sensibilities of a nation that found it inconceivable that a small country and a ragtag group of guerrillas could defeat the most powerful country on earth. Nixon formulated this hubris publicly in the “Silent Majority” speech. And I quote, “Let us understand North Vietnam cannot defeat or humiliate the United States. Only Americans can do that.”

Now, taken together, these rhetorical strategies undermined the official claim that dissent was being protected and tolerated. At least implicitly, dissenters were branded as traitors and the main obstacle to victory and peace in Vietnam. Roughly speaking, the dissenters had two responses, a moderate and a radical one. Moderate dissenters accepted the terms of the debate and tried to refute their opponents’ arguments, whereas radicals attacked the government’s logic altogether. Moderate critics, on whom I will spend more time, insisted on their constitutional right to free speech, frequently labeling this a particularly American right, thereby already implying that they were loyal patriots. By the same token, suppression of dissent served as a key example of their larger claim that the war abroad was undermining democracy at home.

Moderate antiwar critics also tackled the subtler strategies of their opponents. There were enough foreign policy realists among them, most notably Hans Morgenthau, who had coined the term, to credibly contest the notion that the war was the realists’ choice. They maintained that it was not in the national interest. If the government charged them with naiveté, they countered by labeling their opponents crusading idealists. Finally, they attacked this executive privilege of knowledge argument by highlighting that democratic decision-making required wide dissemination of crucial information, and that the government was undermining the democratic process if it monopolized information.

The charges of treason were more difficult to refute. Defensively, moderates took pains to appear evenhanded, incorporating criticism of the enemy’s methods, brutality, and reluctance to engage in peace talks, in their material. More offensively, they emphasized that their criticism was not designed to encourage the enemy but to dissuade the United States from pursuing policies they deemed more dangerous than the enemy. Moderate dissenters also went to great lengths to praise the soldiers. George F. Kennan’s testimony before the Senate Foreign Relations Committee in 1966 typified this strategy. He opened with praise for, quote, “the finest fighting force ever fielded by the United States,” unquote, but then criticized, quote, “the purpose for which they are being employed.”

For critics in Congress, the issue arose most concretely in military appropriations. For most of the war, they stopped short of using the power of the purse to end the conflict because they realized, as Senator Fulbright did, that a negative vote, quote, “would clearly be misinterpreted, and anyone who does that would be branded a traitor, and it is emotionally and politically unacceptable to vote against supplies for the people in the field.” The interventionists’ demand to support the soldiers clearly blunted lawmakers’ potentially most powerful legislative weapon.

Now, in addition to serving as a shibboleth against dissent, the American soldier became also the model of interventionist patriotism. Although interventionists did celebrate the soldier’s willingness to die for Vietnamese freedom and democracy, they increasingly emphasized his unconditional loyalty and obedience, without even asking about the purpose for which he was being employed. They praised the soldier’s selfless devotion and demanded, quote, “the same courage, the same stability, and the same good judgment of the home front.” If the soldiers were prepared to bring the ultimate sacrifice on behalf of the collective, even without asking why, was it too much to ask that their compatriots at home support them by backing the war effort?

The interventionists supplemented this unquestioning soldierly patriotism with an emphasis on the need for national unity. If President Johnson had earlier celebrated dissent as a strength of the American system, he soon considered it a weakness. In the wake of the Tet Offensive, he warned, “I pray that you and every American will take to heart my plea that we guard against divisiveness. United, we are strong. Divided, we are in great danger.” This plea, frequently repeated by Nixon – thank you – returned to the idea that dissent was to blame for military reverses in Vietnam. The basis for the invoked unity was not considered agreement on the objectives of the war but Tocqueville’s instinctive patriotism, an automatic response triggered by attacks on American soldiers abroad.

Now, a representative of moderate antiwar critics, Senate Majority Leader Mike Mansfield, attacked this reading of unity in a memorandum to the President. And he said, “I think that free and constructive discussion remains the key to unity in this nation. Without it, there can only be an illusion of unity which fools no one abroad.” Against the government’s, quote, “blind faith under the name of patriotism,” unquote, the dissenters pitted their understanding of reasoned support, which alone could produce sustainable national unity. This patriotism turned the right to dissent into a duty. Fulbright called it actually a higher form of patriotism because it required more courage. This was de Tocqueville’s reflective patriotism, focused on the nation’s ideals and based on an individual case-by-case decision rather than a collective reflex. According to the critics, America’s ideals were threatened much more by official Vietnam policies than the nation’s physical boundaries were by Hanoi and the Viet Cong.

Now, with this response, of course, moderate critics had staked their own claim to American patriotism. By contrast, some radical critics consciously rejected patriotism and looked for new allegiances. They openly sympathized with America’s enemies, advocating their victory as the only possible and actually just end to the war, and as the necessary catalyst for a revolution in the United States. While white radicals fraternized with North Vietnam and the Viet Cong on the basis of ideological convergence, African American radicals emphasized racial kinship and the supposedly shared experience of the oppression of non-white people by white America. They transferred their allegiance from their native country towards an imagined community of non-white peoples and nations. In their effort to topple the system that they blamed for the war, these radicals rejected the government-imposed terms of the debate and deliberately also broke the law, in some instances. Such thinking certainly possessed its own inner logic, but it also allowed the government to mobilize the so-called silent majority against the entire antiwar movement, portraying it as criminal, extreme, and unpatriotic.

Still, the radicals’ rejection of patriotism remained a minority response. In fact, that it’s remarkable that most dissenters – most debaters on both sides of the divide emphasized their patriotism, disagreeing only about its meaning. The different conceptions are probably best summarized in two versions of one slogan that clashed long before the 1960s but which were revived during the Vietnam War debate. James Burnham of the National Review described the interventionist variant as, quote, “the older rule of the loyal citizen. My country, may she ever be right, but my country, right or wrong. Generally speaking, a nation is injured or destroyed by losing a war, even if it’s the wrong war,” unquote.

Juxtaposed to this was the dissenters’ version, originally formulated by the German American called Schurz in the 1870s. And I quote, “My country, right or wrong. If right, to be kept right, and if wrong, to be set right.” These slogans represent different readings of American nationalism. The interventionist version referred to the nation, per se, as a given and unchanging collective, to which the patriot owed an automatic and un-reflected allegiance, even if it was engaged in the wrong war. Critics’ loyalty, on the other hand, was individualized, considered, and extended to the ideals and democratic principles upon which the country had been founded. For these dissenters, America was an idea rather than a country. A wrong war, even a victorious one, could destroy this idea, and with it the entire nation.

In terms of the trajectory of the Vietnam War debate, the interventionists’ growing emphasis on instinctive patriotism highlights the limited success of selling the war as an altruistic democratic crusade. This more idealistic and cerebral argument was not only increasingly questioned in the 1960s, it probably never carried the same motivational force as raw patriotism and nationalism. As the war turned into a stalemate, and as the cacophony of critical voices grew louder, interventionist congressmen and pundits called for a more explicit, quote, “act of national consecration because patriotism is the final and the greatest reserve of any nation-state,” unquote.

Although Johnson and Nixon increasingly obliged, as we have seen, this change had intrinsic boundaries in the context of a limited war in which emotions are controlled for the purpose of controlling escalation. The result of these countervailing demands, a war in cold blood weighed against the need to mobilize the home front led to contradictory propaganda policies, which Johnson’s speechwriter Harry McPherson, who of course was here yesterday, aptly described as, quote, “something like a semi-satisfactory sexual experience.” (Laughter.)

The upward trajectory of instinctive patriotic appeals demonstrates that policymakers were well aware of its mobilizing potential and of the limited appeal of idealistic rhetoric. Limited war strategy, however, kept them from exploiting this potential to the fullest.

Thank you very much (Applause.)

DR. RITCHIE: Thank you. I’ve been thinking that if, 40 years ago, someone had told me I’d be at the State Department 40 years later discussing the history of the Vietnam War, listening to Henry Kissinger speak with a Vietnamese flag behind him as he was speaking, I would have been very surprised. But if they told me the conference was going to end with a paper on dissent, I would have said, well, I can expect that. And I think that was quite an appropriate conclusion.

But we do have one more speaker, who is our commentator. And I think it’s especially appropriate that David Anderson get the last word at this conference because he is a professor of history and a former dean at the University – at California StateUniversity at Monterey. But it’s almost impossible to study the Vietnam War without running up against David Anderson’s books. He has a long list of publications on the war, including Shadow on the White House: Presidents and the Vietnam War, The Colombia Guide to the Vietnam War, The War That Never Ends, and it’s also appropriate that he be our last speaker because, from 1968 to 1970, he served in Vietnam as a sergeant in the Army Signal Corps.

PROF. ANDERSON: Thank you Don, and thank you, John. I think I can’t say, like Secretary Kissinger, that peace is at hand, but maybe I can say the end of the conference is at hand. (Laughter.)

My job here is to take these papers, which I would call a string of pearls, and to make – add the string. So I think I will do that to fit these interesting papers together into some kind of string.

In all three of these papers, I suggest that the string is the year 1950, which looms very large in the history of U.S. decisions that led to military intervention in Vietnam. Steve Griffin, who, unfortunately, had to leave but – to catch a plane, has provided a thorough examination of the 1950 thesis on presidential war power. Frank Cain makes the important observation that in February 1950, the Truman Administration recognized the Bao Dai government in Vietnam and began large-scale aid to anticommunist forces there. Fabian Hilfrich, in his excellent analysis of the clash between American proponents of instinctive patriotism and reflective patriotism, doesn’t explicitly single out 1950, but I will make my own connection to that in a moment.

Cain appropriately sets the Indochina policy decisions of the Truman and Eisenhower administrations explicitly in the context of the loss of China, a political charge from the China lobby, and the strategic assessment by both the Truman and Eisenhower administrations that the new communist regime in China must be contained. He notes that the United States loaned Chiang Kai-shek’s government $125 million in 1948 but did not send U.S. troops. The voice of constraint, by the way, was Secretary of State George Marshall. Cain notes in a quote he did not share with you in his remarks there that Marshall also warned France in 1947 that the colonial empires of the 19th century were a thing of the past. Marshall was making clear that the United States would not underwrite the military defense of Chiang’s regime and was not supportive of French colonialism.

In 1949, as Cain points out, preparing for Chiang’s collapse, the Truman Administration provided $75 million for the general area of China to prevent further encroachment of communism. Fifty million of this sum went to Indochina. In February 1950, the United States did recognize the French-backed Bao Dai regime and began to funnel aid to the French war effort against the communist Viet Minh. Cain reiterates that the U.S. objective in Asia was fear of an expanding China. The first funds in 1949 were just the beginning, and importantly, he points out Chinese aid to the Viet Minh beginning in 1950 strengthened U.S. determination to maintain the war against the Chinese communists from Vietnam.

When the French left Vietnam after the Geneva conference, he points out, Dulles and Eisenhower reversed Marshall and Truman’s initial caution, and the United States began to underwrite South Vietnam as a counter to communist China.

Hilfrich, as you’ve heard, makes effective use of the dichotomy described by Alexis de Tocqueville, between instinctive patriotism and reflective patriotism. To use contemporary terminology, Tocqueville is interpreting patriotism as constructed, as have a long line of historians. Interventionists in Vietnam used the rhetoric of instinctive patriotism to portray dissenters as cowards and traitors. Further, they argued that dissent undermined U.S. credibility with its enemies by raising doubts that America had the wherewithal to stay the course. The interventionists saw the greatest threat to success in Vietnam to be the lack of political will.

Hilfrich quotes Nixon’s silent majority speech: “North Vietnam cannot defeat or humiliate the United States. Only Americans can do that.” These words recall for me 1950. On January 25, 1950, a jury convicted Alger Hiss of perjury in the famous case in which Congressman Nixon had taken a leading role in the investigation of Hiss as an alleged spy. On February 9, 1950, Senator Joseph McCarthy made his debut “Communists in the Government” speech at Wheeling, West Virginia. McCarthyism was the product of conservative Republican frustration. These frustrations found a malignant release in McCarthy’s crusade to uncover communists in the government. He offered a simple panacea. If subversives could be exposed and eliminated, then everything would be alright in America and in the world. The United States was right and powerful and could only be defeated by its internal cowardice and treachery. If you believe that only Americans can defeat America, as Congressman Nixon seemed to in 1950 and President Nixon did in 1969, then you have an obligation to say so. There was a lack of understanding here of the power of other nations and the limits of U.S. power, a lack of realism.

Griffin notes that moderate dissenters had emphasized the ideals of free speech and democracy, and that other realist dissenters like Hans Morgenthau maintained that the war simply was not in the national interest. In his paper, Cain points – makes the point that the United States chose, for realist reasons, not to fight the Chinese communists through Chiang Kai-shek. And there was a similar logic not to fight China in Vietnam through Bao Dai or Ngo Dinh Diem. Realists viewed the interventionists as idealists who saw no limit to U.S. power and ideals.

Hilfrich generalizes dissenters, although he mentions radical and a group – a variety of dissenters, but he generalizes dissenters basically as liberal dissenters. But I would note that the majority school of Vietnam War historiography is a school often termed liberal realist. That may sound paradoxical, but a dual critique of the war appears in most of the literature. The liberal dissenters would have said that the war diverged from American ideals of self-determination and did not recognize the nationalist and social justice goal of Vietnamese revolutionaries. I think that appears in the historiography.

The realist dissent has also informed the historiography. It views the United States as a regular nation, not necessarily exceptional, with national interests and specific capabilities that have to be kept in balance with each other and with the interests and power of other nations. As Hilfrich notes, the interventionists’ instinctive patriotic rhetoric had failed. Instinctive patriotism is difficult in limited wars and wars of choice such as Vietnam. They are not wars for national survival. If the reasons for American policy had been instinctive, there would likely have been a declaration of war and a national mobilization.

Griffin examines the absence of a declaration of war. In wars of choice, which the U.S. wars since 1945 have been, who chooses, the president or Congress? The wartime debate between interventionists and dissenters came at various times to the charge that the American war in Vietnam was undeclared or presidential, and by implication, thus illegal or unconstitutional. Now, Griffin finds persuasive the claim by Nicholas Katzenbach and others that presidents have the power to authorize warfare, and that the Gulf of Tonkin Resolution clearly was a congressional authorization for the president to use force in Southeast Asia. The question remains open, however, he points out, as to how the executive and legislature share war powers if that is indeed the case. The Tonkin resolution did not declare that a state of war existed, as FDR’s famous “Day of Infamy” speech did in December 1941.

Limited wars, like Korea, Vietnam, Iraq, Afghanistan, do not by definition mean a national mobilization or that a state of war exists. What is an all-out war, the term employed by Katzenbach? It should be noted, by the way, that Johnson did not want an all-out war that would give conservatives in Congress a reason not to fund his cherished Great Society. As Griffin observes, Katzenbach and others who have advanced the presidential war power thesis have relied more on historical experience than legal precedent. In fact, it’s flattering to us scholars to know that our study has such public policy significance. I often have quite the opposite impression that policymakers know little about what we write from archival sources.

AUMFs, authorizations to use military force, in Iraq and Afghanistan are, as we’ve heard, the legal equivalents of the declaration of war. In a post-modern war, that is a war against terrorists, whom does the government declare war against? An AUMF would seem more applicable today than a declaration of war.

Even with the advent of the UN and its desire to eliminate war, as we heard, however, the concept of an attack or use of force has meaning as a state of war when the conflict is between two sovereign nations. The UN charter may have altered the international law of war, as Griffin attests, but it did not itself alter the way that nations think of war, that is between nation states. An international legalist could say that the United States officially did not recognize the DRV Government, and that to declare war would have been to recognize it as a belligerent and thus as a state.

On the other hand, since the United States had agreed not to interfere with force with the implementation of the Geneva Accords of 1954, it had recognized de facto the DRV. Since the DRV was in fact internationally recognized as a nation, Congress legally could have expected and demanded a request for a declaration of war in 1964 or 1965. Beginning with Truman, presidents have consistently argued that congressional authorization was not needed at all. Constitutional historians generally agree that the 1950 thesis employed to sanction presidential action in Korea breached constitutional tradition in a fundamental way.

During the Vietnam War, members of Congress were slow to respond to the executive. A good example is Congressman Clement Zablocki of Wisconsin. He was – he went from being a Cold War rubber stamp for presidential leadership to a co-sponsor of the War Powers Resolution. He personified the growing public skepticism about executive authority or claims of authority. In Hilfrich’s terms, he went from being an instinctive patriot to being a reflective patriot. Griffin ends, appropriately, noting that the containment strategy requires centralized decision-making to be effective. During the Cold War, Congress often did not struggle with the executive because members of Congress and the executive accepted the containment paradigm. As Louis Fisher, in his book Presidential War Powers, has argued, and Griffin also argues, Congress was not assertive enough of its constitutional role.

One of Griffin’s historical points, which he did not list, the – it was 85 points in Katzenbach’s memos – he points out that many of these precedents for unilateral presidential authorization of force were, in many cases, racist, imperialist, gunboat diplomacy in Asia, the Pacific, and Latin America. And these were instances which most modern chiefs of – chief executives would not want to be associated. In other words, Katzenbach’s list actually cited as precedent the record of American imperialism as a justification for U.S. intervention in Vietnam. Wow. Where was George Marshall when we needed him?

All three of these excellent papers point to lessons not heeded. In Cain’s paper, we see the departure of U.S. policy in Vietnam, beginning with Dulles and Eisenhower, away from George Marshall’s sound cautions about the United States underwriting a war with the Chinese communists through third parties. In Hilfrich’s paper, we see the contested ground of patriotism, which is still with us. Is it not paradoxical that a central response to instinctive patriotism to the war on terror was a bill actually entitled the Patriot Act, which allowed restrictions on reflective patriotism?

Finally, in Griffin’s paper, we see the rationalisms and distorted history that enabled Johnson to conduct a presidential war in Vietnam, and other presidents have also employed. One Vietnam War should’ve been enough for American public discourse on war to learn not to accept uncritically executive assertions to “trust me; I know best,” in defense of interventionist uses of force.

Thank you. (Applause.)

DR. RITCHIE: Thank you very much. I know we have run over time, but it seems only fair, since you have persevered so long, to allow those in the audience to participate in a few questions at the end. And there are several hands up in the front, here.

Can you –

QUESTION: My question is for Professor Hilfrich. I actually wanted to congratulate you on your very insightful exploration on this dualism of reflective and instinctive patriotism. My question as a post-colonial scholar would be, you’ve obviously, I assume, invoked Benedict Anderson’s idea of imagined communities to this particular situation. Would you care to talk a little bit about, in these (inaudible) narratives of resistance and subversion, on the other hand, and nationalistic impulses on the other, have the paradigms shifted since the Vietnam War, in your opinion as a historian, in cases such as the war we are fighting in Afghanistan or the Iraq War? And if they have, how have the paradigms shifted?

PROF. HILFRICH: I think perhaps, if anything, the discourse of instinctive patriotism has even, in some respects – and I think – I have one concrete example in mind – has gotten stronger. I mean, first, of course – first of all, I was struck by – that, of course, the normal use of the word patriotism, as we encountered it, for example, in Dr. Kissinger’s remarks, too, was just, I mean, patriotism means instinctive patriotism. Patriotism means supporting one’s country in wartime, no matter whether this is a necessary war or a war of choice. So that is still very much with us that the automatic assumption is patriotism means instinctive patriotism.

But where I think the Vietnam War has, in fact, ended up in some respects strengthening the case for instinctive patriotism is through the role of the soldier. I’ve emphasized in my paper how important the soldier is as a model of this kind of patriotism and also as reminding the audience that you have to support the soldier. Now, and particularly because, of course, there is the conventional wisdom of the Vietnam War, that the soldier has been abandoned by particularly the critics but also the public at large. And I think we see a lot of that – there is a lot of preemptive obedience on the part of the American public. And I think what they sometimes don’t see is that not necessarily does support for the soldier mean support for the war. And a critic of the first hour of the Vietnam War, Wayne Morse, for example, said the best way to support the soldier is to bring him home.

So there are different views on what support of the soldier means as well, whether it’s – whether the only support is then also supporting the war in which the soldier is currently engaged. So, but I think in that respect, Vietnam has actually strengthened the case for instinctive patriotism.

QUESTION: Thank you.

DR. RITCHIE: Question here?

QUESTION: Yes, I just want to say that one thing I felt that was lacking in the discussion of changes in war-making was the presence of nuclear weapons and the degree to which that changed people’s assessments of the time and what would happen in a war, and gave strength to the executive. The second point about that was, of course, connected to your point about all-out war. One of the fears, of course, of all-out war was that there would be a push toward escalation, and that was the problem for presidents to face, and so that Johnson not only wanted to defended his liberal programs but he also feared the political pressure for escalation that had happened during Korea and that Truman had faced as well, so that that also became a reason for not employing the declaration of war.

PROF. ANDERSON: If I may, in Steve’s absence, Tom, he does talk in his paper about the Cold War. He goes to some extent about the general – especially in the ’50s, with the advent of the nuclear war and the general consensus that this level of danger requires a kind of ability to strategize and centralize the authority. I think that you could probably argue, and I think he does, that by the time of the ’60s, that’s changing somewhat. But it’s still that legacy of the ’50s and the whole nuclear danger and the prudent – containment being prudent, I think, has a strong impact on this invitation to struggle between communists – I mean the Congress and the president.

DR. RITCHIE: We have a question from the bleachers.

QUESTION: For Professor Hilfrich, are you aware of any jailed protesters having the writ of habeas corpus suspended in their case, like President Lincoln did, by either Johnson or Nixon?

PROF. HILRICH: Not aware of having it personally suspended by the presidents. But of course, there were cases, and there were particularly cases on the state level. And so these cases did come up. But for the most part, when they were followed through – and very often, it was the ACLU who took up those cases – whereas the ACLU tried to painstakingly avoid taking a position on the war, whether it was for or against the war, it did take up these cases, and generally won them as well.

DR. RITCHIE: Another question? We have a comment? Do you have a microphone?

QUESTION: This is not so much in the form of a question (inaudible). But Tom very graciously allows me to introduce some additional testimony, if you will. This has been an excellent conference, but I’ve been listening very carefully, and it was only Professor Griffin’s remarks in the – previous to this panel that I heard the words “collective security” mentioned in this conference. And I – that has been the missing framework of this discussion. I am David Rusk. I’m the elder son of Dean Rusk. My younger brother, Rich, you’ve heard from earlier, and I appreciate his assistance in this.

I’d like to share some words from Dean Rusk from his memoirs that he collaborated with Rich on, to put a framework on the issue of Vietnam, particularly on the question of collective security – can you hear in the back okay? Okay. Is that all right? Working fine? It is August of 1963 and our dad is in the Crimea meeting with Khrushchev on the occasion of the signing of the Limited Nuclear Test Ban Treaty merely 10 months after the Cuban Missile Crisis. And he writes that, “During our talks at the Black Sea, Khrushchev drew me aside with only his interpreter and told me something that still chills my blood. Mr. Rusk, said Khrushchev, Konrad Adenauer has told me that Germany will not fight a nuclear war over Berlin. Charles de Gaulle has told me that France will not fight a nuclear war over Berlin. Harold McMillan has told me that England will not fight a nuclear war over Berlin. Why should I believe that you Americans would fight a nuclear war over Berlin?” And my dad writes, “I stared back at Khrushchev and said, ‘Mr. Chairman, you will have to take into account the possibility that we Americans are just goddamned fools.’”

Now, I say that because the constant, overriding preoccupation with my father, President Kennedy, President Johnson, Robert McNamara, that whole group, was how do we avoid World War Three in a nuclear age? And writing 20 years later, Pop writes about Vietnam, “In Vietnam, the decisive issue was the fidelity of the United States to collective security and its treaty commitments and the implications of that fidelity for world peace.” He was not an admirer of the SEATO treaty. During the Truman Administration, when Pop was Assistant Secretary of State for the Far East, he had opposed entering into any collective security agreement in Southeast Asia involving any great powers. That was an accomplishment of John Foster Dulles, with the aid of Mike Mansfield as the principal Senate sponsor, 1955.

But by 1961, South Vietnam had been added to that list of nations to whom we had collective security commitments in that respect, and they felt that it was vital for us to honor that. And writing again 20 years later, after my dad had left office, he said, “Because Vietnam ended badly for American policy, an architect of that policy such as myself is not the best one to assess whatever good might have come from our commitment to Southeast Asia. But even so, other capitals remember that the United States of America went halfway around the world, sacrificed nearly 60,000 dead, hundreds of thousands of wounded, and vast resources to meet its commitment to a small country. We did ‘take steps to meet the common danger’ as we pledged to do to those protected by SEATO if they were attacked. I suspect that leaders in other capitals, when contemplating fresh adventures, might say, ‘Now, wait a minute, comrades. We’ve got to be a little careful here, because those damn fool Americans just might do something about it.’ If future events ever lead to a conviction that the United States will not respond to acts of aggression, the world would face risks to peace more severe than we’ve ever seen.”

It’s now 2010. It’s16 years since our dad passed away. It is 65 years since a nuclear weapon was fired off against another society, 65 years since Nagasaki. We have seen the Soviet bloc fall apart. We’ve seen the dissolution of the Soviet Union. We have not seen another attack by a – by any country against a nation under the shield of our collective security agreements since Vietnam itself. In terms of the objective that was expressed here on many occasions and by many panelists about our role in Vietnam, that is to maintain an independent, viable, noncommunist South Vietnam, we failed. But in the larger context of 2010, in a world that is incomparably safer from the threat of nuclear holocaust, was the Vietnam War really a failure? That’s something really worth examining by this context.

Thank you very much. (Applause.)

DR. RITCHIE: John, what is our –

DR. CARLAND: Call for one more?

MYRA BURTON: Oh, John, it’s 10 of 7. We’re supposed to end in six minutes.

PARTICIPANT: (Off-mike.)

DR. CARLAND: Myra is always one who keeps us on a straight and narrow path.

Let me just echo all the things that Ed Brynn said. This has been a wonderful two days for me personally, but I also want to thank not only all the people in the Historian’s Office who worked so hard to make this. I want to thank all of the panelists and all of the attendees. You guys had a hard job, too, and many of you stayed the course and did what was necessary, and we really appreciate it and hope this is something that will continue to provide stimulating thoughts, provocation, papers, what have you, over the next several years.

I declare this meeting closed.