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The original documents are located in Box 24, folder "MIA's (1)" of the Philip Buchen Files
at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 24 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
September 4, 1974
MEMORANDUM FOR:
Howard Kerr
FROM:
Bill Casselman /s/
SUBJECT:
MIA Litigation
In reference to your request, there is no legal action necessary to
followup on the attached letter. I defer to you and Jack Marsh as
to the necessity of replying to Mr. Foley's letter to the President.
Generally, it is the view of this office that intervention by the
White House in ongoing litigation is not desirable, except perhaps
from the standpoint of clarifying the policy underlying the government's
position. While it is not necessary for him to do so, should Jack wish
to intercede with the Department of Defense with respect to the policy
decisions concerned in the MIA controversy, that would be proper for
him to do. However, any contemplated policy changes should be
promptly brought to the attention of the appropriate officials within
the Department of Justice to avoid prejudicing the government's
position in this litigation absent an agreement among the parties
to settle this dispute.
Enclosure
cc: Phil Buchen
GERALD FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
August 20, 1974
MEMORANDUM FOR BILL CASSELMAN
FROM:
Commander Kerr
The attached looks like a follow-up to
your 8/3/74 memo.
Is there any action necessary on
Mr. Marsh's part?
FORD is LIBRARY GERALD
OFFICE OF THE VICE PRESIDENT
WASHINGTON, D.C.
To:
Jack Marsh
From:
Bill Casselman
RMU/
arm.
Date:
8/3/74
Time
p.m.
I have briefly reviewed the materials provided
by D. G. Foley, Esq., regarding Segal V. Gordon.
I intend to file the materials unless there is
something else I should be doing with them.
10
FORD is QERALD LIBRARY
KAPLAN, KILSHEIMER & FOLEY
ATTORNEYS AT LAW
LEO KAPLAN
JAMES B. KILSHEIMER. III
122 EAST 42ND STREET
DERMOT G. FOLEY
NEW YORK, N.Y. 10017
HAROLD SIMON
ROBERT N. KAPLAN
MURRAY HILL 7-1980
August 8, 1974
Hon. John O. Marsh, Jr.
Room 295
Executive Office Building
Washington, D. C., 20501.
Dear Mr. Marsh:
At our meeting with Mr. Ford on August 2nd, there
was discussion of the pending MIA litigation. There was no
time to go into certain details then and I am somewhat concerned
over the possibility that inconsistency will be suspected
between my statements of August 2nd and the fact that, since
then, I have filed a new but related lawsuit in the Court of
Claims. Accordingly, I have prepared the enclosed letter to
Mr. Ford with some supporting materials. I would be most
obliged if you would arrange to bring them to his attention.
Very Truly Yours
Dermot G. Foley.
DGF:mm
Enc.
AMERIT CERALD ? FORD
KAPLAN, KILSHEIMER & FOLEY
ATTORNEYS AT LAW
LEO KAPLAN
122 EAST 42ND STREET
JAMES B. KILSHEIMER. III
DERMOT G. FOLEY
NEW YORK, N.Y. 10017
HAROLD SIMON
MURRAY HILL 7-1980
ROBERT N. KAPLAN
August 8, 1974
Hon. Gerald R. Ford
Executive Office Building
Washington, D.C.
Dear Mr. Ford:
On August 2, 1974, I was one of a group of MIA family
members who met with you in the Executive Office Building. During
our discussion of measures which could be of assistance in the
MIA matter, you inquired about the impact which currently
pending litigation may have on steps which you might take. As
the attorney prosecuting that litigation, I indicated that if
a solution to our problems was developed out of Court I
would expect to discontinue the litigation.
I regretted that there was not time for more discussion
of the point and I wish to remedy that now.
Since our meeting I have filed another related lawsuit.
This does not represent a substantive change in the position
which I have been maintaining for the past year. Rather,
it is essentially a technical adjustment designed to preserve
the status quo.
Our original complaint, among other things, sought
restoration to missing status of those men who have had status
changes which we contend are unconstitutional and void. We always
recognized that there was a problem of jurisdiction in District
Court on this aspect of our action because of provisions of the
Tucker Act. As time went by these difficulties were complicated
by considerations of laches, limitations and such. It became
obvious that another action must be brought in the Court of
Claims so that our rights would be preserved. As a matter of
professional responsibility, I was compelled to attend to this.
Before filing a new complaint I sought to accomplish
what was needed through a direct request to Defense Department
officials. The gist of this approach was that now while everyone
seemed to recognize the need for notice and hearing before a
status can be changed, the cases, where there was no notine or
hearing, should be rectified. I enclose a copy of my letter 672839 to
Hon. Gerald R. Ford
August 8, 1974
Page - 2 -
Dr. Roger Shields dated April 19, 1974. No response has been
received to that letter beyond a report that it had been referred
to Counsel.
As time passed without progress my options necessarily
became more restricted. Finally, this week, I filed our new
lawsuit. A comparison of the new complaint with our earlier,
complaint will show that we are simply trying to preserve a
position and not breaking new ground. I enclose, for purposes
of such comparison, a copy of our new Complaint (Crone et al.
V. McLucas et al.) and a copy of our Jurisdictional Statement and
Appendix in McDonald et al. V. McLucas et al. which, at Appendix
"C", contains our original complaint.
I am offering the foregoing details as to what we are
doing because of the high value which I place on your sincerity
and assistance. For the sake of the men there is a need to
build bridges rather than walls and, toward this end, I would
not want even the suspicion of bad faith to mar out efforts. I
trust that this letter will be a contribution in that direction.
Respectfully yours,
Termot Foley
Dermot G. Foley
DGF:mm
Enc.
P.S. Dear Mr. President:
After this letter was signed but before it
was mailed, the resignation of Mr. Nixon became a reality.
I sincerely hope and pray that you, your Administration
and our Nation will be blessed with calm seas and a
prosperous voyage.
April 19, 1974
Dr. Roger Shields
Assistant to the Deputy Secretary
of Defense (I.S.A.)
Room 4E825
Pentagon,
Washington, D.C. 20301
Re: MIA/POW Status Changes
Dear Dr. Shields:
This letter is in furtherance of the subject of our
telephone discussion on April 8, 1974.
As you will recall, I suggested that there is no way
of reading the decision of the Three-Judge Court in McDonald
V. McLucas without concluding that it is a violation of the
Constitution to change status under Sections 555 and 556 of
Title 37 of the U.S. Code unless there is a prior hearing
respecting which next-of-kin received notice and at which
such next-of-kin were given access to evidence and a meaning-
ful opportunity to participate in the proceedings.
As you know, these due process criteria were not met
in the status changes made to date, in which MIA's of the
Vietnam War were determined or presumed to have died. The
conclusion that such status changes were unconstitutional
and unlawful, is unavoidable,
The question presented by these facts is equally
obvious: what is to be done about these unconstitutional
determinations? Families of a number of the men involved
have sought legal assistance from me in an effort to have
missing status restored nune pro tunc. Obviously, I believe
it should be.
FORD is LIBRARY
Dr. Roger Shields
April 19, 1974
Page - 2 -
Before taking any steps, however, I thought it would
be decent to ask the Department of Defense whether or not we
agree on this matter and whether such retroactive restoration
of status would be made voluntarily by the Department. A
definitive answer, whether positive or negative, would be
most helpful. If the Department is willing to voluntarily
restore missing status retroactively on the sole ground that
the prior change was unconstitutional by reason of the absence
of notice and hearing, this will simplify matters considerably.
If, on the other hand, the Department will not effect retro-
active missing status restorations on this ground and a clear
policy statement to this effect is made, then, at least, we
will know where we stand and it will be known, by all concerned,
that applications to the Department for such restoration would
be an exercise in futility.
I would appraciate authoritative clarification of the
Department's position on this matter as quickly as is convenient]
possible so that I can give appropriate advise to those family
members who have sought my advise on the subject as an attorney.
In addition, I believe that the families as a whole should be
informed,
If I can be of any assistance in expediting a response
or in the consideration of this matter, please let me know. I
would appreciate hearing from you or the Department as early as
possible.
Very truly yours,
Dermot G. Foley
DGF :mw
UNITED STATES COURT OF CLAIMS
X
1. VELMA L. CRONE
:
2. PAUL E. CRONE
3. PATRICIA HEIDEMAN
:
4. MILDRED L. LODGE
5. RAYMOND J. LODGE
:
6. MARGORIE J. PICKETT
7. SUSAN SULLIVAN
:
8. ADELINE B. WESTWOOD
9. NORMAN P. WESTWOOD
:
10. IVAN WILEY
11. BETTY WILEY
:
Plaintiffs,
:
- against -
:
JOHN McLUCAS, Secretary of the Air Force,
HOWARD H. CALLAWAY, Secretary of the Army,
:
and J. WILLIAM MIDDENDORF II, Secretary
of the Navy,
:
Defendants.
X
PETITION - CLASS ACTION
TO THE HONORABLE, THE COURT OF CLAIMS:
Plaintiffs, by their attorney, allege:
JURISDICTION
1. This Court has jurisdiction based on the statutory
provisions of 28 U.S.C. § 1491. The matter in controversy
exceeds the sum or value of $10,000.00, exclusive of interest
and costs, and arises under the Constitution, laws and treaties
of the United States, including the Fifth Amendment; Chapter 10,
Title 37, United States Code; and the Paris Agreement on Ending
the War and Restoring Peace in Vietnam signed January 27, 1973
(the Paris Agreement).
DEFINITIONS
2. In this petition, the following definitions apply:
MIA--means a "member" who, at any time during the
period beginning January 1, 1961 to final judgment in this
action, was in a "missing status" while on active duty in Indo-
china (whether on land or in the territorial, adjacent or
surrounding airspace, seas and waters) in connection with
hostilities and military operations and who was the subject of
a determination of death (as hereinafter defined).
Next-of-kin--means the spouse, children, parents,
brothers, sisters, and persons officially designated as primary
and secondary next-of-kin (in records of the defendant Secretary
concerned) of MIA's, if such persons exist, and if they do not,
in any particular case, then the persons who share the closest
degree of blood relationship to such MIA. The legal represen-
tatives of MIA's are also included in "next-of-kin" for
purposes of representing the rights of MIA's.
Member--means a person appointed or enlisted in,
or conscripted into, a uniformed service of the United States
and under the jurisdiction of a "Secretary concerned" who is
a defendant in this suit. (See 37 U.S.C. § 101 (23))
Missing status--means the status of a member who
is or has been officially determined to be absent in a
of:
a. missing;
LIBRARY GERALD
2.
b. missing in action;
C. interned in a foreign country;
d. captured, beleaguered, or beseiged
by a hostile force; or
e. detained in a foreign country against
his will. (See 37 U.S.C. § 551 (2) )
Secretary concerned--means:
a. the defendant Secretary of the Army,
or his designee, with respect to matters concerning members
serving in the Army;
b. the defendant Secretary of the Navy,
or his designee, with respect to matters concerning members
serving in the Navy and the Marine Corps; and
C. the defendant Secretary of the Air
Force, or his designee, with respect to matters concerning
members serving in the Air Force. (See 37 U.S.C. § 101 (5) )
Determination of death--means any determination
by the Secretary concerned pursuant to Chapter 10 of Title 37,
United States Code, "Payments to Missing Persons," that a
member has died. Included in this term are "official reports
of death," "presumptive findings of death," and every other
such determination regardless of how denominated.
Continuance of missing status--means any determin-
FORD
ation by the Secretary concerned pursuant to Chapter 10"
of Title
37 that member in missing status is presumed to be living.
3.
Evidence means probative matter which is admiss-
ible under the rules of evidence in courts of the United States.
Information--means probative matter which is
admissible in proceedings before administrative agencies of
the United States regardless of whether it would be admissible
as "evidence" in court.
Period--means the period from January 1, 1961 to
the date of final judgment in this action.
Next friend--means the next-of-kin of an MIA who,
during the absence of such MIA and his inability to appear and
represent his own interests, object on his behalf to the wrongs
of the defendants complained of herein.
PARTIES
3. Each of the plaintiffs is related to and is suing
as next-of-kin, and as next friend of an MIA and, in addition,
is the spouse, parent, dependent, and/or designated beneficiary
of such MIA.
Plaintiffs:
a. Plaintiffs VELMA L. CRONE and PAUL E. CRONE
are the parents of Sp.4 DONALD E. CRONE, United States Army, who
FORD
became MIA on February 15, 1971 and who was declared dead on
April 20, 1971.
LIBRARY
b. Plaintiff PARTICIA HEIDEMAN is the wife
of M/Sgt. THOMAS E. HEIDEMAN, United States Air Force, who
became MIA on October 24, 1970 and who was declared dead within
one day thereafter.
C. Plaintiffs MILDRED L. LODGE and RAYMOND
J. LODGE are the parents of Maj. ROBERT A. LODGE, United States
Air Force, who became MIA on May 10, 1972 and who was declared
dead on May 9, 1973.
d. Plaintiff MARGORIE J. PICKETT is the
mother of Corporal ROBERT E. GRANTHAM, United States Army, who
became MIA on March 8, 1971 and who was declared dead on May 14,
1971.
e. Plaintiff SUSAN SULLIVAN is the wife of
Lt. Col. FARRELL J. SULLIVAN, United States Air Force, who
became MIA on June 27, 1972 and who was declared dead on June 25,
1973.
f. Plaintiffs ADELINE B. WESTWOOD and NORMAN
P. WESTWOOD are the parents of Lt. NORMAN PHILIP WESTWOOD, United
States Navy, who became MIA on May 17, 1970 and who was declared
dead on May 18, 1970.
g. Plaintiffs IVAN WILEY and BETTY WILEY are
Who
became MIA on June 12, 1972 and who was declared dead
the parents of Sp.4 RICHARD DENIS WILEY, United States GRALD Army,
August
26,
1972.
5.
4. The defendants respectively are:
a. Defendant JOHN McLUCAS is the Secretary of
the Air Force and is sued in his official capacity as an officer
of the United States.
b. Defendant HOWARD H. CALLAWAY is the Secretary
of the Army and is sued in his official capacity as an officer
of the United States.
C. Defendant J. WILLIAM MIDDENDORF II is the
Secretary of the Navy and is sued in his official capacity as
an officer of the United States.
d. Reference to the Secretary of any branch of
the Armed Forces includes reference to his predecessors in
office during the period.
CLASS ACTION ALLEGATIONS
5. Plaintiffs request this Court to enter an order
permitting this action to be maintained as a class action.
6. Description of class. The class which plaintiffs
seek to represent is composed of all next-of-kin and next friends,
both in their capacity as representatives of the respective MIA's
and with respect to their individual interests.
FO
7. The prerequisites to a class action are met
as
follows:
LIBRARY
a. The class which plaintiffs seek to
6.
represent is so numerous that joinder of all members is impracti-
cable. There are more than 2,500 persons in the proposed class.
b. There are predominating questions of law
or fact common to the class which plaintiff seek to represent,
including:
(1) Whether the statutory provisions
for determinations of death, 37 U.S.C. §§ 555 and 556, are
unconstitutional and void on their face as a denial of due
process under the Fifth Amendment to the United States Con-
stitution;
(2) Whether the statutory provisions
for determinations of death, 37 U.S.C. §§ 555 and 556, are
unconstitutional and void in their application as a denial
of due process under the Fifth Amendment to the United States
Constitution;
(3) Whether by reason of the uncon-
stitutional and void nature of 37 U.S.C. §§ 555 and 556, on
its face, determinations of death purported to be made there-
under were made without authority and are, hence, null and void;
(4) Whether by reason of the uncon-
stitutional and void application of 37 U.S.C. §§ 555 and 556,
determinations of death purported to be made thereunder were
made without authority and are, hence, null and void;
(5) Whether by reason of the uncon-
stitutional and void determinations of death, the status of
LIBRAR
each MIA who has been the subject of such determination of death
7.
must be restored retroactively to missing status.
C. The claims of plaintiffs are typical of
and identical to the claims of the class which they seek to
represent. Plaintiffs do not have any special relationship
with defendants.
d. Plaintiffs will fairly and adequately
protect the interests of the plaintiff class. Plaintiffs'
claims are typical and representative of the claims of the
class. There do not now appear to be any defenses of a unique
variety which may be asserted against plaintiffs. Plaintiffs
do not have any interest which is antagonistic to the plaintiff
class. Plaintiffs' attorneys are experienced in the class
action litigation.
COUNT 1: UNCONSTITUTIONALITY
OF STATUTE
8. Sections 555 and 556 of Title 37, United States
Code, are on their face unconstitutional delegations of admin-
istrative power to defendants in their official capacities to
make conclusive determinations of death.
9. Each of the four following defects, standing
alone, renders the statutory provisions, §§ 555 and 556, un-
constitutional on its face:
a. there are, and have been, throughout the
period, no statutory criteria, or even a statutory policy, to
LISRAR
guide or govern the Secretary concerned in his decision
8.
whether or not to make a determination of death;
b. there is, and has been, throughout the
period, no statutory rulemaking authority delegated to the
Secretary concerned with respect to determinations of death,
and therefore the Secretary concerned may proceed and has pro-
ceeded only on a case-by-case basis, thus merging the rule-
making and adjudicative functions;
C. the statutory provisions, §§ 555 and 556,
do not provide and, throughout the period, have not provided for,
or required, the giving of notice to the respective next-of-kin,
next friend or person adversely affected by each particular
determination, of the pendency of the statutory review; and also
fail to provide for, require, or afford such persons an oppor-
tunity to participate meaningfully in such review, thereby denying
a full and fair hearing; and each plaintiff, and each member of
the plaintiff class, has been denied such notice and hearing;
d. the statutory provisions, §§ 555 and 556,
permit the Secretary concerned to make a determination of death
in the total absence of any evidence or information whatsoever.
10. The effect of the four constitutional defects
stated in paragraph 9 has been to deprive the plaintiffs and
the plaintiff class and their respective MIA's of their rights
to due process under the Fifth Amendment to the United States
Constitution.
11. As a result of the determinations of death made
pursuant to the foregoing unconstitutional and void circumstances,
9.
each of the subject MIA's was deprived of all pay and allowances
which should have accrued during the period following his re-
spective determination of death and was further deprived of the
benefits of search and accounting procedures pursuant to Article
8 (b) of the Paris Agreement. In addition, his next-of-kin as
represented by the plaintiff class herein, have sustained, and
are sustaining, pecuniary losses resulting from the said loss
of pay and allowances.
COUNT 2: UNCONSTITUTIONAL
APPLICATION OF STATUTE
12. Sections 555 and 556 of Title 37, United States
Code, have been applied throughout the period in a manner which
constitutes an unconstitutional delegation of administrative
power to defendants in their official capacities to make con-
clusive determinations of death.
13. Each of the four following defects, standing alone,
renders the statutory provisions, §§ 555 and 556, unconstitutional
as applied:
a. no criteria, standards or policies have
been issued to guide or govern the Secretary concerned in his
decision whether or not to make a determination of death and the
Secretary concerned has only proceeded on a case-by-case basis;
b. there is, and there has been, no procedure
or requirement for the giving of notice to the respective BR. FORD
friend, next-of-kin or persons adversely affected, of the pendenc
of the statutory review; in fact, such notice has been withheld
and such persons and/or their counsel have been intentionally
excluded from any participation in the review;
C. the Secretary concerned has not convened,
conducted or participated in any hearing or review whatsoever
prior to making determinations of death; and
d. the Secretary concerned, as a matter of
course, has made determinations of death in the absence of any
evidence or information respecting the fact of death.
14. The effect of the four constitutional defects
stated in paragraph 13 is to deprive the plaintiffs and the
plaintiff class and their respective MIA's of their rights to
due process under the Fifth Amendment to the United States
Constitution.
15. As a result of the determinations of death made
pursuant to the foregoing unconstitutional and void circumstances,
each of the subject MIA's was deprived of all pay and allowances
which should have accrued during the period following his re-
spective determination of death and was further deprived of the
benefits of search and accounting procedures pursuant to Article
8(b) of the Paris Agreement. In addition, his next-of-kin, as
represented by the plaintiff class herein, have sustained, and
are sustaining, pecuniary losses resulting from the said loss
of pay and allowances.
RELIEF REQUESTED
FORD & GENETO LIBRARY
16. There is no administrative remedy available to
plaintiffs and the plaintiff class and their respective MIA's to
prevent or correct the wrongs set forth in Counts 1 and 2. The
questions of law which are completely despositive of this action,
are inappropriate for determination by administrative agencies
and are appropriate for determination by this Court. Consequently,
there are no administrative remedies to exhaust.
17. There is no adequate legal remedy available to
plaintiffs and the plaintiff class and their respective MIA's
to prevent or correct or compensate the wrongs set forth in
Counts 1 and 2 unless the defendants are enjoined and restrained
from such wrongful conduct, and are compelled to restore the
said MIA's to missing status retroactively to the dates of their
respective determinations of death; otherwise plaintiffs and the
plaintiff class and their respective MIA's will suffer irreparable
injury.
WHEREFORE, plaintiffs request:
a. a judgment finding §§ 555 and 556 of Title 37,
United States Code, unconstitutional and void, on their face and
in their application, and requiring the defendants to restore the
MIA's to missing status retroactively to the dates of their re-
spective determinations of death;
b. a judgment requiring resumption of all pay and
allowances of the MIA's and awarding them all pay and allowances
withheld since the dates of their respective determinations of
death;
lass FORD
C. judgment in favor of plaintiffs and the
and their respective MIA's adversely affected by determinations of
death heretofore made, for all losses and damages they sustained;
d. an award of costs, disbursements and reasonable
counsel fees; and
e. such other relief as is just.
KAPLAN, KILSHEIMER & FOLEY
DeamoTS FOLEY Foly
A Member of the Firm
Attorneys for Plaintiffs
122 East 42nd Street
New York, New York 10017
(212) 687-1980
FORD : GERALD LIBRARY
13.
M/A.
THE WHITE HOUSE
WASHINGTON
Jay:
Please review these and,
if possible, report to
me by Friday or of for
that to Phil A.
(or with what propriety)
matters by what authority
Consider among other
we can influence the
result in such a case
as this.
T.
FORD & LIBRARY
THE WHITE HOUSE
WASHINGTON
December 16, 1974
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
TED MARRS sed
Phil - I would appreciate your having the appropriate
person review these decisions as to legality and
appropriateness. I do not understand the palatability
factor referenced by Mr. Bell.
Enclosure
LIBRARY GERALD P. FORD
FOREIGN CLAIMS SETTLEMENT COMMISSION
OF THE UNITED STATES
OFFICE
WASHINGTON, D.C. 20579
or THE CHAIRMAN
December 9, 1974
Nonorable Theodore Marrs
Special Assistant to
the President
The White House
Washington, D. C. 20500
Dear Ted:
Here are the two decisions I mentioned to
you -- one for payment and one for denial.
We can live with and justify either one.
The question, however, is which would be
more palatable in today's climate.
Please see if you can get some reaction
just as quickly as possible because we must
issue some decisions very soon
Cordially,
J. Raymond Bell
Chairman
Enclosures
FORD is CERALD LIBRARY
M/A's 's
For Jay French
FORD i LIBRARY DERALD
THE WHITE HOUSE
WASHINGTON
December 16, 1974
MEMORANDUM FOR:
GENERAL LAWSON
FROM:
DR. MARRS
Dick the attached letter from Ann Mills Griffiths
is characteristic of the thinking of a number of
families of MIAs. Few have been quite as reserved
however.
The establishment of a committee would be a welcome
indicator of interest to all and announcement of
such before Christmas would be particularly appre-
ciated. By the way, December 27 or 28th is date
considered as MIA "anniversary."
As you know, prior to my opportunity to sample the
sincerity and depth of pained feelings in regard to
the Clemency Board I did not support such a Committee.
Now I am convinced it is = moral obligation.
If there is any way I can be of assistance let me
know.
I still cannot guarantee specific recommendations or
whitewash and don't expect the latter. Good selec-
tion of the committee can preclude a disaster type
product.
Enclosure
CC: Mr. Marsh
Mr. Buchen
Mr. Baroody
General Scowcroft
LIBRARY GERALD ? FORD
NATIONAL LEAGUE OF FAMILIES
OF AMERICAN PRISONERS AND MISSING IN SOUTHEAST ASIA
Mrs. Ann Griffiths, State Coordinator, Southern California
6575 Christine Circle, Buena Park, CA 90620
November 14, 1974
Dr. Theodore Marrs
Special Assistant to the President
The Whitehouse
Washington, D.C.
Dear Dr. Marrs:
I wanted to thank you for taking the time to discuss what I know to
be our mutual concern of obtaining the accounting. I greatly
appreciated our very frank discussion of this situation and related
matters.
In attempting to convince the families that bitterness should not be
aimed at our current President, I have to say that most families feel
President Ford is the only one who actually can help us obtain the
information we must have in order to feel any real peace within our-
selves. It really would not matter who occupied the presidency, the
frustration would still be vented upon that person. They would con-
sider it irrelevant that President Ford was not initially to blame,
only that he can help us now and has not yet acted with the strength
and determination they feel is mandatory.
I share your view that there is no person who can negotiate from a
position with nothing to offer. The leverage must be there. What can
we do to help our leaders gain the leverage? We must have suggestions
before we can attempt to help. So many of the families have already
waited so long that their patience has worn quite thin. Almost to a
member, the families were relieved and happy when Mr. Ford became
the President and they all shared the expectancy that now, finally,
something would be done. It is imperative that we have an all-out
effort for a solution immediately, and I know you certainly share the
urgency we all feel.
We anxiously await further word from General Lawson on the formation of
a special committee of qualified persons who might be able to advise
the President in a positive manner. Until then I know we must maintain
patience in spite of the impatience which often engulfs us. Again, thank
you for your concern, efforts and time.
Sincerely,
718868 GERALD
an Mills Draffitter
Ann Mills Griffiths
(714) 826-3110 or (714) 893-7531
Dec. 18, 1974
MIA/POW
mathro
To: Jay
From: Eva
Attached is a copy of
the memo Mr. Buchen
just received. FYI
TORO is LIBRARY
THE WHITE HOUSE
WASHINGTON
Isent a
copy to
Jay
LIBRARY GERALD FORD
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
December 18, 1974
MEMORANDUM FOR:
DR. TED MARRS
FROM:
GENERAL LAWSON
SUBJECT:
MIA/POW Matters
The attached draft proposal to the President has been forwarded to
Defense, State and NSC for approval, change, comment and coordi-
nation. Defense has concurred. Neither State or NSC has formally
responded, although I have been informally advised that some
resistance to the proposal is developing. I am pressing for a
decision in time to make an announcement on 27 January 1975 - the
second anniversary of our POW release. I will keep you advised.
1 Attachment
Draft Proposal
cc:
Mr. Marsh
Mr. Buchen
Mr. Baroody
BERALD 8. FORD LIBRARY
DRAFT
MEMORANDUM FOR THE PRESIDENT
FROM:
MAJOR GENERAL LAWSON
SUBJECT:
Designation of a Presidential Task Force
for MIA/POW Matters
For several months the MIA/POW families have been search-
ing for a responsible means of realizing their objectives. After
Retention Copy Military Office
careful and intense study, they have come forward with a request
for the establishment of a "Presidential MIA/POW Task Force",
modeled along the lines of the Presidential Amnesty Commission.
(Tab A)
Upon receipt of the request, a study group was formed to
evaluate the proposal. We have now completed a series of meetings
with members of the National League of Families, Congress, the
Departments of State and Defense, and various other interested
individuals. From these discussions, the following general.ob-
servations were formulated:
(1) Family members are generally optimistic about the
potential value of such a commission. Although they are realisti
LIBRARY GERALD FORD
enough to understand that a commission cannot perform "acts of
magic," they do believe that the combined power of the legislative
and executive branches of government united under a Presidentially
directed organization could achieve some measure of success.
-2-
At the minimum, they believe the commission would focus international
attention upon the failure of the North Vietnamese to comply with the
provisions of the Paris Peace Accords.
(2)
Members of Congress have already issued statements
suggesting creation of either a Presidential Task Force or a
Congressional Task Force to "investigate and make recommendations
regarding the conduct of the MIA/POW program.' (Tab B)
Congressional interest in the MIA/POW issue has increased in the
past six months. Amend ments to the Foreign Trade Bill and
the Military Construction Bill were initiated and only narrowly missed
enactment. Both State and Defense have registered concern for the
impact which these amendments could have had upon existing
programs (Tab C and Tab D).
(3)
The Supreme Court decision which upheld the lower
courts' actions in the McDonald versus McLucas case (permitting
the redesignation of certain MIA/POW's to that of Presumptive
Finding of Death [PFOD]) gives the green light to service secretaries
to hold independent hearings and reviews on all MIA/POW cases
immediately if they so desire. This issue is one of the most
FORD & GERALD LIBRARY
controversial aspects of the entire MIA/POW program. Currently,
because of White House guidance, redesignation hearings are only held when
requested by a family member. Some members (primarily wives)
would privately prefer to have the redesignation program proceed - but,
-3-
they cannot bring themselves to be the initiating factor. Others
(primarily parents) have and will continue to use every possible means
of delay to obstruct redesignation action. By law, this action cannot
be held up much longer. A commission would be a most useful means
to publicly illuminate all aspects of this very difficult question.
After careful consideration of all aspects of the National
League of Families proposal, the study group has concluded that the
formation of a Presidential Task Force for MIA/POW Matters is
timely and could serve an extremely useful function in the final
resolution of the Vietnam era MIA/POW issue. It is recognized that
there are certain inherent dangers associated with the establishment
of Presidentially appointed commissions, in that occasionally their
recommendations tend to be narrowly focused and cannot be implemented
when viewed in the context of national policy. However, in this case,
the question does not appear to be - "Will there be a commission?",
but "Who will initiate a commission." The mood of Congress is quite
clear. If the Executive Branch does not initiate action fairly quickly,
a Congressional task force will almost certainly be appointed to
accomplish the study. Neither the families nor the representatives
of Defense or State Departments favor that action. Considering all
aspects of the current situation, it is recommended that you establish
Presidential Task Force for MIA/POW matters.
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The Department of State and the Department of Defense concur
with this recommendation.
- -4-
If you agree, a working group consisting of White House,
Defense and State Department personnel will be established in order
to develope the specific guidelines for the task force in order that
you might present this information to the National League of Families
at the earliest possible date.
APPROVE
DISAPPROVE
LET'S DISCUSS
4 Attachments
runo
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BERN
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NATIONAL LEAGUE OF FAMILIES
OF AMERICAN PRISONERS AND MISSING IN SOUTHEAST ASIA
1608 K STREET, N.W., WASHINGTON, D. C. 20006 (202) 628-5811
September 30, 1974
PRESIDENTIAL TASK FORCE -- POW/MIA
I. Why a Task Force?
The responsibility for obtaining a successful resolu-
tion of the POW/MIA issue should be centralized. Previously the
issue has been a concern of the Executive Branch including State
Department, Defense Department, and the Congress. It has lacked
the cohesiveness that a commission directly responsible to the
President would have. Therefore, it seems desirable--even
imperative- that a Presidential Task Force be established.
II. Make Up of Task Force
Of course the President would determine the make up.
But, because we so fervently desire an acceptable determination
of the fate of our men, we are bold enough to make these suggestions:
1. Someone from the Executive Branch to chair
the commission.
2. Senate representation.
3. House representation.
4. State Department representation.
5. Department of Defense representation.
6. National League of Families representation.
7. Members of other agencies could be used as
consultants as the need arises; i.e., Justice
Department, J. C. R. C. Team, Four Party
Joint Military Team, Red Cross, etc.
III. Purpose, Objectives, and Responsibilities of Task Force
LIBRARY GERALD = FORD
1. Very simply to develop, coordinate and execute
of
plan for obtaining an honorable resolution of the POW/MIA issue
as quickly as possible.
2. It is easy to state simply and succinctly the
purposes and objectives. The difficulty is in developing a plan
and then in executing such a plan. This will require diligent
- 2 -
thinking and rethinking, but the following might be used as a
use which may be altered and enlarged upon as we proceed towards
the goal.
The Task Force, as an arm of the government and directly
responsible to the President shoud:
2.1 Seek ways to bring world-wide attention to the
fact that the government of North Vietnam and the leaders of the
Provisional Revolutionary Government (Viet Cong) are not abiding
by international agreements which were witnessed by and attested
to by other governments.
2.2 Use the United Nations and other world forums to
call upon other governments of the world that are signatory to the
Geneva Convention, to demand publicly and through official govern-
ment channels that the DRV and PRG abide by international agreements.
2.3 Observe closely the coalition government in Laos
and use all the means available to us to get cooperation and
assistance in obtaining an acceptable accounting and return of
all POW's according to the Laotian protocols.
2.4 Use all available means to obtain an acceptable
accounting and return of all POW's who may be in areas outside
of North Vietnam, South Vietnam, and Laos. These would include
but not be limited to Red China and Cambodia.
2.5 Study the possibility of applying economic pressure
in obtaining an acceptable accounting, not only to North Vietnam
but to any country that has not to our government's satisfaction
pressured the DRV, PRG, Pathet Lao, and Khner Rouge to honor
their commitments.
2.6 Send a high ranking U. S. envoy to Southeast Asia
to go from capital to capital (from Saigon to Phnom Penh to
Vientiane to Hanoi to Peking) to try to gain entry into areas
presently controlled by Communists for our J. C. R. C. Team, the
International Red Cross, or neutral countries, so such teams
could search out crash and incident sites, talk with natives,
and try to obtain the honorable accounting we desire.
2.7 Seek out governments from neutral countries that
would volunteer to send in teams to inspect crash and incident
sites if such arrangements could be negotiated.
2.8 Work closely with our J. C. R. C. Team, the Four
Party Joint Military Team, and other existing agencies engaged in
Southeast Asia that could help in the POW/MIA issue.
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IV. Funding
The Task Force should be specially funded for a given
period of time--say four months. During this time the Task Force
yould exert maximum effort in developing and executing a plan.
.ie 120 days would end about January 27, 1975, which is the
second anniversary of the signing of the Paris Peace Agreements.
V. Reporting
The Task Force should issue reports periodically, the
first report to be issued within one month from its organizational
meeting and monthly thereafter or more frequently if deemed
necessary. The final report should be given approximately
January 27, 1975, at which time the commission could assess the
situation and recommend that the Task Force be disbanded or con-
tinued depending on the situation at that time.
PRESIDENT
CHAIRMAN - TASK FORCE
NATIONAL
SENATE
HOUSE
LEAGUE OF FAMILIES
STATE
DEFENSE
is
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1974
OFFICE OF U.S. SENATOR ALAN CRANSTON
Press Contact: Lu Haas
11000 Wilshire Blvd.
Los Angeles, Cal 90024
Phone: 213/824-7755 or
824-7844
September 25, 1974
FOR IMMEDIATE RELEASE
U.S. Senator Alan Cranston announced today that he will ask President
Ford to create a special board of inquiry to review all existing government pro-
cedures and policies relating to Americans still missing-in-action in Southeast
Asia.
Cranston said that if the President cannot create such a board by executive
order, he will initiate legislation establishing the board.
"Many Americans, " said Cranston, "have already begun to forget the war
in Vietnam. But for wives and families of those men whose fate is still uncertain,
the memory of that cruel and tragic conflict is very fresh indeed. For them, the
anguished uncertainty continues day after day."
"I believe that a board of inquiry would be able to make badly-needed
comprehensive recommendations as to what the federal government can do to'
settle once and for all the question of the fate of those Americans who are still
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missing and unaccounted for.
"The board should include in its review of existing policies and procedures
a thorough examination of Department of Defense practices with regard to MIAs
and POWs, as well as recommendations for needed legislative and executive
action.
"Specifically, the board should:
"1. Determine if the State Department is actively seeking an end to the war
in Vietnam so that search teams may conclude--by examining crash and grave
sites--whether any Americans remain alive in Communist-controlled territory.
"2. Review Department of Defense policies and regulations on determining
the status of missing-iu-action.
"3. Recommend to the Administration and the Congress any legislation
needed to correct current problems regarding DOD policies and regulations."
Cranston noted that the Senate Committee on Finance has adopted, as
Title IV of the Trade Reform Act, language which reflects amendments offered by
more
MIAs--add one
Senators Chiles and Gurney of Florida conditioning the extension of most-favored-
nation treatment and government credits to non-market economies upon a
Presidential determination that such countries had undertaken to obtain the
cooperation of the pertinent governments in Southeast Asia in locating U.S.
personnel missing in action, repatriating those who are alive, and in recovering
the remains of those who are dead.
Earlier the Senate adopted, as part of the Military Construction Authoriza-
tion Act, a provision--of which Cranston was the prime cosponsor--stating that:
No change in the status of any member of the uniformed services who is in
a missing status may be made unless and until two provisions have been fulfilled.
First, the President must determine and notify the Congress in writing that all
reasonable actions have been taken to account for such members, and that all
reasonable actions have been made to enforce the provisions of Article 8 (b) of the
Paris Peace Accord. Second, the service Secretary concerned must notify that
person's next-of-kin in writing of the proposed change in status. The next-of-kin
then has 60 days after receipt of notification of the proposed change in status to
file an objection to the change.
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"These are important steps toward resolving the question of MIAs
POWs fairly and compassionately, " Cranston said.
"Creation of a board of inquiry would be another important step toward
demonstrating to the long-suffering relatives of our men that the government is
giving priority to this tragic problem."
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GERALD
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department OF STATE
Washington, D.C. 20520
December 7, 1974
Honorable Russell B. Long
Chairman, Committee on Finance
United States Senate
Dear Mr. Chairman:
This letter responds further to questions from several
Members of the Committee during the Secretary's testimony
December 3 concerning the Gurney-Chiles amendment (Sec.
403) to the Trade Reform Act, which calls on the Soviet
Union and other nonmarket economy countries to help us
achieve an accounting for Americans who are missing in
action in Southeast Asia, including the repatriation of
any men who may still be alive and the return of the
remains of the dead.
It goes without saying that the Administration shares the
concern expressed by this amendment about North Vietnam's
failure to account adequately for our men lost in Southeast
Asia. We have pressed the communist authorities in
Indochina repeatedly on this subject, and the Secretary
has raised it personally with the Soviet and Chinese
leaders. We have stated that there can be no considera-
tion of economic assistance or other forms of acconmoda-
tion with Hanoi until there is satisfactory compliance
with the provisions of the Paris Agreement, including its
missing in action requirement. When the Secretary met at
the United Nations with the Foreign Minister of Laos, who
he made clear the importance we attach to search efforts
represents the Pathet Lao side in the coalition government,
for our men missing in that country. The U.S. took the
initiative at the United Nations to sponsor a resolution
on accounting for the missing and dead in armed conflicts,
which was overwhelmingly approved by the General Assembly
on November 6. Our actions will continue with serious
determination until we have obtained the fullest possible
information on our men.
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Although we agree with the aim of the Gurney-Chiles
amendment, we are concerned that its reporting require-
ments will hinder, rather than advance, achievement of
that objective. As the Secretary indicated in his response
to questions, it is simply unrealistic to expect progress
in this important matter on the basis of efforts which are
publicly disclosed. We assure the Committee we will con-
tinue our efforts to enlist Soviet cooperation on this
subject, but to give this any chance of success, we hope
the amendment can be stated as the Sense of the Congress,
and that the reporting requirement can be removed. We of
course do not wish to have the bill delayed by amendments
on the floor but would hope this section could be adjusted
in Conference.
If we can provide further information on this subject,
I hope you will let me know.
Cordially,
Linwood Holton
Assistant Secretary
for Congressional Relations
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GERALD
ovos
&
OF
ASSISTANT SECRETARY OF DEFENSE
WASHINGTON, D. C. 20301
GRUND
SAMERICK
6 DEC 1974
INTERNATIONAL SECURITY AFFAIRS
MEMORANDUM FOR GENERAL LAWSON
SUBJECT: Accounting for Missing Servicemen
The Vietnam Ceasefire Agreement, signed in January 1973, in addition
to providing for the return of prisoners of war and civilian detainees,
made provision for an accounting for those missing U. S. servicemen and
civilians who did not return. Now, almost two years later, that ac-
counting has not been accomplished and the Military Services continue
to carry over 900 men in a missing status. The inability of the Military
Services and our government to obtain compliance from North Vietnam and
its allies with Article 8(b) of the Ceasefire Agreement, which obligates
the signatories to cooperate in efforts to account for the missing, has
resulted in great frustration and continued anxiety for the families of
those who did not return from Southeast Asia. Much of this frustration
has been directed at the Department of Defense. The resulting situation
in which we find ourselves, and which will be described below, pleases
no one.
Some next of kin are vehemently opposed to the change in status of their
loved one from missing in action or prisoner to deceased. Others would
like the Services to continue with status reviews but cannot bring them-
selves to comply with current Service procedures which have evolved as a
result of the sensitivity of this issue. Congress has also consistently
expressed great interest in the issue of accounting. This interest has
recently been expressed by the introduction in Congress of measures which
would severely restrict the ability of the Military Services to deal with
the problem of their members who become missing in either wartime or
peacetime.
As you are well aware, the majority of our efforts to obtain an accounting
for our men who did not return have been put forth by our delegates to the
Four-Party Joint Military Team in Saigon. Although we have continually
pressed the other side in that forum on their clear obligation under Article
8(b) of the Paris Agreement concerning this purely humanitarian issue, we
have achieved only minimal results. The only substantive response has been
the return to us last March of the remains of 23 American servicemen whom
the DRV reported as having died in captivity. The remains of some 17 other
FORD & LIBRARY
2
Americans have been recovered through the activities of our Joint
Casualty Resolution Center which is based in Thailand. Thus far,
the Center has been restricted to uncontested areas of South Vietnam
in conducting field searches.
When our men returned from enemy captivity in early 1973, they were
able to provide information which allowed resolution of fewer than
100 cases of the 1363 servicemen who had remained unaccounted for at
the time the repatriation was completed. On 20 July 1973, a law suit
(McDonald V. McLucas) was filed against the Secretaries of the Military
Departments in an effort to halt changes from missing status to de-
ceased. The resultant Temporary Restraining Order handed down by the
Court restricted the Secretaries to reviews of and changes to the status
of missing servicemen to only cases in which the primary next of kin re-
quested the appropriate Secretary in writing that he not delay action on
the case based on information in his possession. The final decree in
McDonald V. McLucas, entered on 11 March 1974, required that the Secretaries
afford certain rights, including that of a hearing, to those next of kin
currently receiving governmental financial benefits prior to a review of
their missing service member relative's case which could result in a find-
ing of death. By early April 1974, the Services had developed and imple-
mented regulations to conform with the requirements of the decree. Ad-
ditionally, at that time, we were informed that the decision would be
appealed to the Supreme Court by plaintiffs' counsel. The appeal was
subsequently filed, and the Supreme Court affirmed the decision of the
lower court on 11 November 1974. We have been informed that the deadline
for an appeal for a rehearing by the Supreme Court is 6 December 1974,
and that as of yet, it has not been filed. The case remains technically
active in that regard, although we believe that the granting of such an
appeal is unlikely.
With these legal entanglements now practically behind us, I believe it is
time for a look at where we have been and where we should go. An assess-
ment should be made now of our efforts to achieve the accounting required
by Article 8(b), together with consideration of further status reviews
and changes. The mechanism exists in the Services to proceed in an orderly
fashion in accordance with the requirements of the decree with those cases
which warrant review. Some reviews will continue to be made based on the
recovery and identification of remains. Others will be warranted because
of the receipt of new information, or information which verifies that which
is currently possessed. Still other cases may warrant review simply be-
cause of the dim prospect for the survivability of the incident itself, the
fact that our returnees could add nothing to known information which would
i
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3
indicate survival, and even the receipt of additional information,
which might be given by the other side in some future compliance with
Article 8(b), would not include additional data in a number of cases.
Although the obligation for the other side to account for our men is
clear in application to both the missing and the dead, the interpreta-
tion made by many is that once a change is made to deceased, the other
side is relieved of their accounting responsibilities. Recent proposed
legislation reflecting this view attempts to attach unreasonable con-
straints on the statutory authority of the Secretaries under 37 United
States Code to make findings of death, and based on the hope that some-
how, if there is a halt in status changes, the other side will come
forth with an accounting. Our review of the past plenary sessionsof
the Four-Party Joint Military Team reveals that the other side fully
realizes the importance we place on the accounting for our missing and
the return of the remains of the dead; therefore, they will continue to
stall and rebuff our efforts in this area until internal pressure here
will result in their achievement of political and military concessions
which they have previously been unable to gain.
I believe the Services have proceeded thus far in an extremely conserva-
tive fashion in their reviews of the cases of their missing servicemen.
They have continued, as in the past, to honor family requests for reviews.
At the present time, no hearings or reviews are being scheduled by the
Services except in those cases where the primary next of kin requests a
hearing, or where new and significant information, such as the recovery
and identification of remains, is forthcoming. As you know, the views
of next of kin vary on this issue, and often have caused dissention within
the same family. We know there are cases which warrant review and the re-
quest for which would never be sent by the wife. Many feel they could ac-
cept a change, but not if a need existed for them to initiate the action.
Testimony to this effect was recently given by family members before the
House Armed Services Committee in connection with consideration by Sub-
committee Number Two of proposed legislation to restrict status changes.
In summary, I believe the situation should be studied in light of the
current and foreseen environment so that we can chart a proper course
of action.
Reger E. Shindah
ROGER E. SHIELDS
FORD
Deputy Assistant Secretary
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