Section IV: The Court-Martial and Afterward, 1981 - 1985
This is the fourth section of five reporting the official record of the case of USMC PFC Robert Garwood. Garwood disappeared in South Vietnam in September 1965 and was seen by several US and South Vietnamese prisoners of war, all of whom confirmed that he had "gone over" to the Viet Cong/North Vietnamese. Garwood did not return with US POWs in Operation Homecoming, spring 1973. Later, he identified himself to a World Bank official in a Hanoi hotel and, in February 1979, he returned to the US.
Garwood was charged by the Marine Corps with several violations of the Uniform Code of Military Justice (UCMJ). He was convicted of collaborating with the enemy and of striking another American who was in captivity.
If you have not yet read Sections I, II , or III of this report, you may want to click on the respective links and read those sections first. This section deals with Garwood's return to the US and the immediate aftermath leading up to his court-martial.
This report is taken directly and fully from a report prepared on the Garwood case for the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence, June 1993.
CONVENTIONS. The following conventions are used in all sections of this report.
After release from the Great Lakes Naval Hospital, Garwood was sent on 30 days convalescent leave and then ordered to report to Camp Lejeune, NC, not later that 0900, 7 May 1979 for duties as a file clerk, until a date for his court-martial could be established.
While on leave, several dynamics began to take place:
Although Garwood resumed USMC duties in early 1979 at CAmp Lejeune, it was not until mid-November 1980 that the court-martial actually proceeded in earnest. (The trial actually had begun in February or March 1980 but had to be delayed due to a change in defense attorneys and to the number of motions presented to the court. Composto and Miller removed themselves from the defense in April 1980 and civilian attorney Foley was to be relieved by Garwood in June of that year.) Part of the delay was due to disagreements among defense attorneys concerning the tack to take for Garwood's defense. A significant problem appeared to be that Dermot Foley, the lead civilian defense attorney, had not had significant courtroom experience as a trial lawyer. A bankruptcy and commercial law specialist, Mr. Foley had become involved in the case by virtue of his having been the attorney for the National League of Families and had volunteered to represent GArwood immediately upon finding out that he had requested repatriation. (In addition, Foley's brother, Brendan, and Air Force major, had been shot down in Laos in November 1967 and neither he nor his F-4 aircraft had been found.)
Defense counsel Foley would not remain long as Garwood's attorney, nor would military defense attorneys Composto and the recently appointed Captain Dale Miller USMC. Foley was replaced (June 1980) as the civilian counsel by John Lowe and Vaughan Taylor, the latter attorney remaining as Garwood's counsel up until this time (1993). In the case of military attorney Composto and Miller, they were replaced by CAptain Leo Olshin, USMC (April 1980). Within 18 months of Garwood's repatriation in March 1979, all three of the original defense counsels -- Compost, Miller, and Foley -- had been replaced with a new group of lawyers. This change in counsel added to the considerable delay in the Garwood court-martial and, along with a year of pretrial maneuvering and two months of testimony, added to the length of the entire Garwood trial, one of the longest in the history of military law. (See Groom and Spencer, Conversations with the Enemy, pp. 333 - 386, for a lengthy explanation of the pretrial attorney activities; however, it should be noted that some of the dates are not accurate, per official USG and USMC records.)
In the 92 trial days, litigated over a time period in excess of 11 months, 16 volumes of trial records and exhibits, containing 3,833 pages of trial transcript, were produced. (See Attachment to 16 May 1985 ASD/Legislative Affairs office memo.) Some 18 witnesses were called during the trial but Garwood never took the stand in his own behalf. (It is interesting to note that of those who testified during the Garwood trial, almost all were enlisted personnel who had served with Garwood at some time during his military service. Obviously, those who had been in the POW camps with Garwood knew most about his collaboration with the enemy.) There continue to be, however, large gaps in time during which we do not know for certain where Garwood was located and/or what he was doing. ALthough a formal request had been made to the SRV (Socialist Republic of Vietnam) for all of Garwood's official files and records, no response has been received from Hanoi. (As recently as early 1993 and official request for all of Garwood's files and records was made of the SRV.) Clearly, only Garwood and the SRV know for certain what he was doing and where he was located during these gaps in time.
Throughout the trial Garwood's defense attorneys attempted to place the charges against
him into two broad areas: a pre-capture desertion charge and that of mental
irresponsibility of instability. In late January 1981, Colonel R. Switzer, USMC, the
judge in the Garwood court-martial, ruled that certain specifications against Garwood be
dismissed for lack of evidence: 1) desertion; 2) solicitation of other US soldiers
to throw down their weapons; 3) verbal mistreatment of another POW (SGT Williams).
The charges that remained were those of collaboration with the enemy and the physical
mistreatment of PFC David Harker. Although civilian defense attorney Lowe argued in
his closing statement that GArwood had been subject to "coercive persuasion,"
had been incapable of making rational decisions, and was, therefore, mentally deranged
during his time in the POW camps, the jury still found Garwood guilty of collaboration
with the enemy and with having abused fellow POW Harker. ON 5 February 1981
Garwood was convicted on both these charges and found guilty on five specifications:
Defense motions to set aside the verdict were denied and Garwood was sentenced five days later. He was ordered reduced to Private (E1), given a dishonorable discharge from the USMC, and forced to forfeit all back pay and allowances (almost $150,000). ALthough Garwood appealed his conviction to the highest court in the land, the US Supreme Court decided not to hear the case in late 1985 and his conviction stood.
On 20 March 1981, shortly after Garwood was convicted, the DIA requested permission from the USMC to "interview Garwood so as to obtain any information he might have on Americans who remain unaccounted-for in SEA as a result of the Vietnam War." (DIA letter of 20 March 1981 to Commandant, USMC) Permission was denied on 1 April, based upon the USMC's concern that Garwood would appeal his conviction the the US Supreme Court and that he would attempt to "obtain some $148,000 held in a Uniform Services Saving Deposit Program (USSDP)," as well as promotions in grade to which he claimed entitlement. (Commandant, USMC, letter to Director, DIA of 1 April 1981)
On 5 November 1981 DIA requested the cooperation of attorney John Lowe in obtaining an interview with Garwood, his client. In his response of 30 December, Lowe notified DIA that the Garwood conviction was under appeal, would go through the appellate process, through the Navy Court of Military REview, then the Court of Military Appeals, and "ultimately the Supreme Court of the United States." (Lowe letter of 30 December 1981 to the DIA) Mr. Lowe continued that it was n the best interests of all concerned that the DIA "prevail upon the SEcretary of the Navy to disapprove the court-martial findings and sentence in order to free Pvt Garwood to give a complete briefing." (Ibid.) Mr. Lowe continued that GArwood would cooperate "fully" upon the removal of that "impediment." (Ibid.) The DIA showed no interest in making such and arrangement and no interview with Garwood ensued as a result of the 5 November letter to Lowe.
It was not until almost one year later that DIA's General Counsel (GC) contacted the USMC to request information on the status of the Garwood case. The GC was advised that the Investigative Board was to deliver its findings to SECNAV on 26 November 1982 and that the latter would refer the matter to the Navy's Judge Advocate General (JAG) for legal opinion as to both propriety and actions to be taken. It was estimated that the process would take up to five months to complete. (DIA General Counsel memo of 18 November 1982)
It was actually more than 12 months later, in December 1983, that the DIA was able to report that the Navy JAG had noted that Garwood's attorney Lowe had again stated that he "would not permit his client to be debriefed by DIA representatives prior to the completion of all of Pvt Garwood's appeals." (DIA Memo for the Record 7 December 1983) The DIA again noted that the administrative appeal for back pay and allowances approached $150,000 and that this appeal was "currently on the SECNAV's desk for resolution." (Ibid.) Although it was thought that SECNAV would uphold the verdict, DIA noted that Garwood could use the appellate process to the full extent and that the appellate remedies might take as long as two to three years to complete. It was anticipated, therefore, that it might be mid-1986 before DIA could get to debrief Garwood, ". . . and at that time he can tell us he's no longer interested." (Ibid.)
Several months later, in June 1984, the Assistant Secretary of Defense (ASD) for International Security Affairs (ISA), stressing humanitarian concerns for any MIAs or POWs in SEA, drafted a letter requesting that Garwood's attorney Lowe arrange for an interview. (ASD/ISA letter to John Lowe, Esq. of 6 June 1984. Although this letter was drafted in June, it does not appear that it was sent to Lowe until December.) By the time the Navy JAG, the Navy's General Counsel, and then the DOD's Office of General Counsel reviewed the proposed letter, the 4 December 1984 Wall Street Journal article concerning interviews with Garwood had appeared. In this Bill Paul article, Garwood noted that he had, in fact, seen live US POWs in Vietnam after Operation Homecoming 1973. The times and locations noted in the article represented, therefore, live sightings of POWs. (The WSJ article of interviews with Garwood was the first mention of his having seen live US POWs after 1973. In all discussions with USG officials, Garwood had specifically stated that he had not first-hand knowledge of any live POWs after 1973. Indeed, on 29 March and again on 4 April 1979, in debriefings with the USMC and Congressmen Wolff and Gilman at the Great Lakes Naval Hospital, Garwood had indicated that he had not seen an American in ten years. The pronouncement notwithstanding, the WSJ live sightings were examined, analyzed, and evaluated by DIA, live sighting investigators, and again by a JTF-FA team of US investigators in June 1992. SECDEF's principal Garwood investigator remained in Hanoi three weeks in June 1992 tracing the live-sighting locations noted by Garwood. No evidence has bee found, in any of the live-sighting locations noted by Garwood, that there were ever any live POWs held in any of his locations after 1973.)
These new Garwood revelations generated significant activity in the media. On 6 December 1984 Duncan Spencer, a co-author of the Groom book, noted in the Washington Times that Garwood had indicated that he would return to Vietnam "at any time to locate prison camps where he estimates 60 - 75 US soldiers remain in secret captivity." (Washington Times article, 6 December 1984, by Duncan Spencer.) Congressman Gilman even wrote to SECDEF Caspar Weinberger asking that his House Task Force on American Prisoners and Missing in Southeast Asia be able to meet with Garwood as early as possible. (Gilman letter to SECDEF Weinberger, 17 December 1984)
In a DIA memo dated 19 December 1984, it was noted that the civil litigation portion of Garwood's appeal had been completed that his claims for back pay and allowances had been disapproved. Since, therefore, there was no further prospect that Garwood would obtain any back pay or allowances, the USMC speculated that he might have come forward with live-sighting information in his 4 December interviews with the WSJ to "exploit the news value of his information and thus avail himself of commercial opportunities." (DIA Memo of 19 December 1984)
It was also noted in the 19 December 1984 DIA memo that the USG needed to proceed with caution concerning any requests for "immunity" which attorney John Lowe might request, in return form Garwood's testimony on the live sightings mentioned in the WSJ article. (In the meantime, DIA began to examine the live-sighting locations noted in the WSJ article, especially the alleged detention facility near Yen Bai, some 75 miles NW of Hanoi.)
Indeed, on 21 January 1985, Garwood's attorney Vaughan Taylor officially requested immunity for the 1970 - 1979 years in Vietnam. If Garwood were to receive immunity, he would agree to be interviewed by DIA or by any other USG organization, according to attorney Taylor. Interestingly enough, John Lowe was no longer serving as primary defense counsel for Garwood and although the USG was apprised of this by mail, no mention was made as to why Taylor had now become the lead attorney for Garwood. Although it appears that ASD/ISA was willing to consider some kind of "transactional immunity," (ASD/ISA Memo to SECDEF of 1 February 1985) the SECDEF was not so sanguine about either a grant of immunity or about what information Garwood might have some six years after his repatriation. (Note for ASD/ISA from SECDEF of 7 February 1985) In addition, on 1 March SECNAV noted that the Commandant, USMC, "strongly opposed" any immunity for Garwood because "granting immunity will be repugnant to all who serve and have served in uniform, especially those most familiar with his treacherous activities in Vietnam." (SECNAV Memo to SECDEF of 1 March 1985) Furthermore, SECNAV was concerned that any immunity would have an adverse impact upon both morale and the principle of POW discipline. In short, SECNAV noted that no immunity should be granted. (Ibid. No immunity has ever been granted to Garwood.)
The Navy JAG, nevertheless, was asked to prepare a proposed immunity grant for Garwood. In the proposal, the JAG noted that although the Garwood Case was not important for a principle of law, "it did reaffirm a principle that has immeasurable impact on military discipline: an American service member is always accountable for his actions, even as a POW." (Navy JAG memo for General Counsel of 13 February 1985) Furthermore, the Navy JAG was concerned that a grant of immunity for Garwood would have a significantly adverse effect on any retrial. The ASD/ISA was less concerned about any retrial of Garwood. Ostensibly, the ASD thought that a grant of immunity could be very narrow in scope and thus permit the USG to obtain additional information from Garwood as well as allow retrial if it were warranted. (ASD/ISA Memo to SECDEF 13 February 1985) Although the granting of immunity was as anathema to the ASD/ISA as it was to the Commandant, USMC, and SECNAV, there was consideration that some kind of immunity might have to be granted to Garwood in order to get him to talk more about his live sightings. (Ibid.)
On 20 February 1985, the ASD/ISA officially requested that SECNAV provide "the
Navy's views" as to why the Navy would not recommend granting immunity to Garwood.
(ASD/ISA Memo of 8 March 1985 to SECDEF) The National Security council (NSC) also
notified the Chairman, Joint Chiefs of Staff (JCS) (NSC Memo to JCS 13 March 1985)
that although many officials "reflected a general distaste for the man,"
personal feelings towards Garwood should be set aside in order to validate whether or not
the USG could believe all of any part of what Garwood was saying publicly. It was
also noted in the NSC memo to the JCS, that the National League of Families and the White
House had endorsed the NSC's talking with Garwood and that the DIA was anxiously waiting
to speak with him and eventually put him on the polygraph. (Ibid.) Additionally, a
negative decision to grant Garwood immunity would make USG statements regarding the
POW/MIA issue as one of the "highest national priority" look like rhetoric.
At this point, some 100 days after the 4 December 1984 WSJ article had appeared, Garwood was making public appearances and talking to the media about his live sightings. In addition, there were USG organizations actively involved in trying to get information from him concerning his live-sighting reports which had been published in the WSJ (some six years after his repatriation). These organizations included the NSC, SECDEF, JCS, SECNAV, Commandant, USMC, the Congress of the United States, and even the White House.
During this same period of time, the National League of Families organization wrote to the SECDEF indicating that Garwood perhaps held potentially valuable information on POWs and MIAs and that he should be interviewed. (ASD/ISA Memo to SECDEF of 5 April 1985. In this memo it was also noted that Garwood was to pass an outline of the information he possessed to Congressman William Hendon and the the congressman would pass it on to the SECDEF.) And, on 22 March 1985, Garwood held a press conference with the "Vietnam Veterans Coalition" in which he noted that he had given Congressman William Hendon an outline of the information he possessed on live POWs in Vietnam. The SECDEF next wrote to Congressman William Hendon, and asked the congressman to pass the Garwood information to the Department of Defense while requesting that he help arrange in-depth interviews between Garwood and DOD officials. The congressman was, in fact, urged, to act promptly "in accordance with the priority of the President and the SECDEF in resolving this issue." (ASD/ISA Letter to Congressman William Hendon of 28 March 1985) Before any response came from Hendon, however, Garwood's attorney, Vaughan Taylor, wrote the ASD/ISA noting that Garwood still wanted "transactional immunity" from the DOD for the 1970-1979 years. He also noted, however, that Garwood was prepared to "share his information with Congressmen who are also interested in Americans still unaccounted for in Southeast Asia, without the protection of immunity, for the sake of all concerned." (Taylor letter to Commodore Cossey, ASD/ISA, of 9 April 1985)
The SECDEF also wrote to the National League of Families in early April 1985 and indicated that he had decided not to grant immunity to Garwood while the court-martial was under review by the Court of Military Appeals. (SECDEF letter to National League of Families of 9 April 1985) In the meantime, the ASD/ISA asked Chairman Solomon of the House POW/MIA Task Force to help in getting Congressman Hendon to provide the DOD with any information given to him by Garwood regarding "those Americans still missing in Southeast Asia." (ASD/ISA Letter to Congressman Solomon of 12 April 1985) At almost the very same time, Congressman Hendon had written the White House asking for "a brief 15-minute appointment" (Hendon letter to the President of 16 April 1985) with the President because Garwood had provided him with some "startling revelations regarding US prisoners-of-war being held alive in communist prisons in Southeast Asia." (Ibid.) The White House then responded quickly and requested that Congressman Hendon have hs staff contact the office of Robert C. McFarland to arrange a convenient time to receive the information that Garwood had given.
In a 1 May 1985 letter to the National League of Families, the Chairman, Joint Chiefs of Staff (CJCS) indicated that he had supported SECDEF's decision not to grant immunity to Garwood while the court-martial conviction was under review and that it "has been my belief all along that if Private Garwood were truly sincere about his motives, he would have come forth with the information long before now." (General Vessey, CJCS, letter to Executive Director, National League of Families, 1 May 1985)
The CJCS also indicated that he understood Garwood had indicated his willingness to disclose any information he had without immunity. Any meeting between the DOD and Garwood did not occur for another year, however, and not until the United States Supreme Court had decided not to hear his appeal. Only in December 1985 did Garwood agree to meet with DOD representatives, almost seven years after his return to the United States.
On 15 May 1985 the ASD/ISA received correspondence from Dermot Foley, the first
civilian defense attorney to defend Garwood. The Foley correspondence was sent in
reference to a telephone call from the ASD/ISA (EAP - East Asia and Pacific REgion)
concerning recent claims by Garwood that he had live sightings of Americans in
Vietnam. This letter is significant from two points of view: (1) Mr. Foley appears to be saying that he felt that there would have been a
conflict of interest if he had known that Garwood had in fact, seen live US POWs in
Vietnam and Mr. Foley had not reported this; and (2) Mr.
Foley, in fact, does admit that "shortly after Pvt Garwood returned to the United
States, he was debriefed by DOD." (Foley to COL Jerry Venanzi, USAF,
ASD/ISA, letter of 15 May 1985)
At the same time that ASD/ISA representatives were examining the letter from Dermot Foley, they were meeting with the chairman and members of the congressional Task Force on POW/MIA Affairs concerning the Garwood live-sighting information found in the WSJ article of 4 December 1984. Again, DIA noted that "it could not comment on a newspaper article and this it wanted to professionally interview Pvt Garwood to obtain the information he claims to possess." (ASD/ISA memo of 15 May 1985) At the end of the meeting, Task Force member Congressman Solarz stated that the "Task Force should consider holding another meeting and inviting the Attorney General and the Marine Corps to further explore the possibility of congressional immunity for Pvt Garwood." (Ibid.)
In a report of this Task Force meeting, ASD/ISA representatives noted that after DIA representatives had left, members of the TAsk Force had the opportunity to question Garwood alone. At the time they asked if he would appear "before the committee and under oath without immunity to tell what he knows." (ASD/Legislative Affairs memo of 16 May 1985) Garwood, with his attorney present, agreed to do so but then asked if he would talk to DIA without immunity, he answered "No." (Ibid.)
On 29 May 1985 the ASD/ISA notified the General Counsel for OSD that the House Task Force on POW/MIA Affairs had requested that senior members of the OSD legal staff met "informally" with the Task Force on the "issue of Pvt Robert GArwood." ASD/ISA Memo to General Counsel, OSD, of 20 May 1985) The Task Force was interested in obtaining information on the legal questions concerning Garwood's court-martial, his appeal, and the legal reasons for DOD's not having granted Garwood the immunity he had requested. (Ibid.) Meanwhile, William T. Bennett, of the Burch and Bennett, P.C. law firm, had written to Congressman Solomon, the Task Force chairman, and noted that Garwood was "clearly willing to testify under oath in open session" (Bennett letter to Chairman, House Task Force on POW/MIA, 22 May 1985. Bennett was, for a short period of time, a local Washington D.C. area attorney who represented Garwood. Vaughan Taylor continued to be the primary attorney for Garwood and remains so until this date, 1993.) but the he was "uncertain that any polygraph examination can be relied upon, and, accordingly desires to consider the issue at further length before making a definite commitment." (Ibid.)
On 29 May 1985 the SECDEF's office sent a memo to the ASD/ISA noting that Richard
Childress of the NSC had reported that Garwood had refused Congressman Solarz' request, on
behalf of the Task Force, to take a polygraph examination and that the Task Force would
now "seek to have Pvt Garwood testify under oath." (SECDEF Memo to
ASD/ISA, 29 May 1985) The SECDEF's office then noted, on 3 June 1985, that the Task
Force would offer Garwood the opportunity to testify in closed/executive session on
12 June. (SECDEF Memo, 3 June 1985) The Task Force was mainly interested in
following up on the remarks that GArwood had made on 15 May, during their informal
discussions with him. Of paramount interest to the TAsk Force, of course, was the
discussion of Garwood's live-sighting reports, as previously identified in the WSJ article
of 4 December 1984. The TAsk Force also wanted to have this hearing in
closed/exectuive session so as to preclude the "possible misuse of any confidential
information that could adversely impact US policy interests or personnel."
(Chairman Solomon letter to PFC Robert Garwood, USMC, of 30 May 1985)
Court of Military Appeals Upholds Conviction; On to the Supreme Court
On 3 June 1985 the Court of Military Appeals upheld Garwood's court-martial conviction for offenses committed from 1965 - 1969. And, in the 12 June memo from the ASD/ISA to the SECDEF it was noted that the question of granting immunity to Garwood for the period of 1970 - 1979 would now surface, in exchange for his providing information "he alleges to have on POWs and MIAs." (ASD/ISA Memo to SECDEF of 14 June 1985) Even though Garwood's attorney Taylor indicated that he would now file a writ of certiorari (This writ requests the record of a case for review.) to the U.S. Supreme Court, the ASD recommended to the SECDEF that no action be taken on immunity for Garwood until "the process of appeal to the Supreme Court had been completed." (ASD/ISA memo to SECDEF 14 June 1985) On 20 June 1985 the SECDEF concurred with the ASD recommendation and the decision was once again made not to grant immunity to Garwood.
On 26 July 1985, the ASD/ISA responded to Garwood attorney Taylor's letter concerning
immunity and noted that the DOD's position on Garwood's request remained unchanged:
"A grant of immunity will not be considered while an appeal is underway."
(ASD/ISA(EAP) letter to Vaughan Taylor of 26 July 1985) Within a week, Vaughan Taylor responded to the ASD/ISA noting that "Unless and until
the Department of Defense provides the immunity requested on 21 January 1985, he (Garwood)
will not meet directly with the Defense Intelligence Agency."
(Taylor letter to ASD/ISA(EAP) of 31 July 1985)
On 7 December 1985, attorney Taylor wrote the ASD/ISA and noted that on 2 December the "Supreme Court announced that it had declined to take the case of United States v. Robert R. Garwood." (Taylor letter to ASD/ISA (EAP) of 7 December 1985) That decision notwithstanding, Mr. Taylor wrote that Garwood now agreed to be "ready, willing, and able to de debriefed by the Defense Intelligence Agency as soon as the immunity he requested in my letter to you of 21 January 1985 is granted." (Ibid.) Ten days later, on 17 December 1985, a DIA memo noted that the DOD General Counsel had reviewed the immunity question and noted that "transactional immunity" should not be an issue now since Garwood was a civilian. (DIA memo from Chief, Special Office for POW/MIAs, of 17 December 1985)
Go to: Section V,1986 - 1992