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FOIA Letters To  US Army Judiciary Re Record of Trial and Allied Papers

FOIA Letter To Mary B. Chapman
US Army Judiciary
Wednesday, March 22, 2006

Ms. Mary B. Chapman
703 588 7920
US Army Judiciary
901 North Stuart Street
Alexandria, Virginia 22203

Subject: Request For Declassification

Greetings, Ms. Chapman:

I am requesting an update on the progress of declassification of the items excised and or pages removed from my Record of Trial and the Allied Paperwork. The original classification of these items was top secret, secret and confidential.

My initial formal request for declassification was on August 24, 2005.

You responded a month later stating I would be advised when the process was completed.

May I remind you that the original classification took two weeks in 1968, long before the computer age as we know it. Further reclassification took three days.

I sent a postcard to your office in February, 2006 asking for an update on this matter.

Please advise.

John McCarthy
3628 Colonial Avenue
Los Angeles, CA 90066
310 397 1143

FOIA Letter To Mary B. Chapman
US Army Judiciary

August 24, 2005

Ms. Mary B. Chapman
Department Of The Army
US Army Judiciary
901 North Stuart Street
Arlington, VA 22203-1837

Dear Ms. Chapman,

Let me express my profound gratitude for your recent ten pound mailing of the unclassified portions of my Record of Trial and Allied Papers.

Re our conversation of August 19, 2005 on the subject of recovering items deleted/excised from the original Record of Trial, CM 417936, I respectfully submit a request for those items once classified Top Secret, Secret and Confidential be provided to me at no cost, relating to my Court-Martial.

Additionally, there are files on this matter being maintained outside the US Army Judiciary. I also request a data base search be conducted re FOIA, to recover any and all files pertaining to myself, Project Cherry and other materials from any and all US Government Repositories that may currently maintain such files.

If your office does not have the authority for the conduct of this requested search, please forward this request to the appropriate authority and advise me who this office and person of contact would be.

There are FOIA requests pending with certain agencies and offices of Government which are included on my website


You may have already seen these letters since I emailed you the website information on August 19, 2005.

Because the dates of the Court-Martial were January 29-30, 1968, it would appear by US Government Regulation that the length of time has long since run regarding the de-classification of such material.

Those items removed/excised by CIA/CIC from the original copy I received from the SJA at Long Binh, South Vietnam deal with CIA directed operations targeting Cambodia for the express purpose of overthrowing the Cambodian Government of the Prince, now King Norodom Sihanouk and the assassination of Sihanouk utilizing resources provided by the Khmer Serei (K/S) who were trained, equipped and directed by myself as Case Officer of Project Cherry.

King Sihanouk is in possession of these State Department documents.


In the year 2000, once Top Secret US State Department Documents were declassified and placed on the Internet by the Lyndon Baines Johnson Presidential Library.


This page on my website contains documents two through six (2-6) of State Department discussions from National Security Council Meetings held in 1965, 66, 67 and 68. The documents relate President Johnson’s concern over the use of K/S personnel in overthrowing the Sihanouk Regime and the attempted assassination of Sihanouk. Page One of this information is my synopsis, as provided to Senator Kyl and Shelby.

Copies of these State Department documents were emailed and snail-mailed to former Attorney General Ashcroft, Senators Kyl and Shelby of the Senate Select Intelligence Committee and faxed to the White House Office of Karl Rove in 2001. There has been no response from any of these recipients. Follow-up phone calls to the Duty Officer of the US Judiciary Department were non-productive, with the exception of a response of astonishment and panic to the mention of “Treason in Wartime.” The Senate Judiciary Committee is also in receipt of this material. Likewise, they have not responded either.

These non-responsive recipients took the same Oath of Office that I did. That irrevocable Oath for protecting and defending the Constitution of The United States against all enemies both foreign AND domestic is current, for me. This inaction by appointed and elected members of our Government makes them accessories to the crime of Treason in Wartime and Obstruction of Justice in a Capital Murder Case. There is no plausible excuse for this inaction. It is a crime.

In these documents, LBJ expressly directed CIA and State Department to cease and desist all connection, support and association with the K/S and directed the CIA and State to convey his concerns on this matter, in person, to the Heads of State of both South Vietnam and Thailand. LBJ wanted further assurance that there be no K/S involved in US led cross border operations from South Vietnam into Cambodia. Those missions, known as Shining Brass and Daniel Boone, were specifically prohibited from any and all association with K/S and were directed through MACVSOG to ensure no K/S penetration of these Top Secret missions. The date of this NSC meeting, attended by all representatives, was June 13, 1966.

Other NSC meetings describe LBJ’s concerns over the expansion of the Vietnam War into the 60,000 square miles of Cambodia and triggering the Peoples Republic of China’s response in support of defending Sihanouk in the event of US Intervention. This concern was LBJ’s main reason for his Directive to cease all support for the Government in Exile, the K/S. LBJ also directed a hand carried letter be delivered to Sihanouk, in person, assuring him of expressed concerns relating to K/S attempts to overthrow the Sihanouk Regime and the position of the United States in this matter of grave concern.

The above referenced information, when collated with the synopsis noted on page one of this letter, provides a clear and unambiguous conclusion that my assignment as Case Officer of Project Cherry was to a rogue operation in defiance of Presidential Directives issued during War Time and ignored by the CIA and State Department. Twelve members of the K/S were assigned to Project Cherry upon my assignment as Case Officer in September, 1967. The Principal Agent for these activities was Inchin Lam, the so-called victim in this matter.

This is the basis for the Top Secret Classification of material in the classified copies of the Record of Trial. The classification had nothing to do with the ‘legitimate’ conduct of the War In Vietnam.

The Top Secret classification of the Record of Trial is not the fact that Top Secret cross border operations were underway at the time in question. It is quite evident, with the information contained in the once Top Secret State Department documents, that this material was classified to cover a crime in progress; Treason in Wartime.

I defy anyone to concoct a reasonable retort.

Plausible Deniability is a non-operative excuse in this matter. LBJ made a statement in March, 1968 that he would not seek nor accept his parties nomination for reelection as President of the United States. It is common knowledge that LBJ felt betrayed by his closest advisors re the War in Vietnam. Rhetorically, could LBJ have been ignorant of the outcome of this Top Secret Court-Martial and the ramifications of the matters exposed?

In addition, so called ’evidence’ was fabricated to ensure a conviction at my Court-Martial. The testimony of the Government’s star witness, a pathologist, compelled the jury to reach a verdict of Guilt. The classification of the Trial allowed this. No one would ever question a matter without unavailable and irrefutable evidence to the contrary.

Also of concern, the ranking officer of the Court-Martial, told me to my face in 1984 in Virginia, where he was employed by the Secretary of The Army to hand load ammunition for the Secret Service, that if the Government thought me innocent of the charge of Premeditated Murder, they would never have brought me to Trial. Therefore, he had his duty to convict.

When I provided this officer with the recantation of the star witness he became irate. His anger grew when I provided him FBI reports on this matter. His final response; “Why wasn’t I told of this”? Why, indeed.

The Judge at the trial, Colonel Paul Tobin, currently at age 80, and a defense attorney in Tennessee, was informed in 2004 of the reversal of the conviction and dismissal of the charges in 1971, was equally perplexed and irate. He was not surprised that the CIA was involved in a rogue operation re Project Cherry. Tobin, as seen in the verbatim Record of Trial, had made the statement that the pathologist was considered a ‘friend of the court’ and allowed him to remain in the court room after being the first prosecution witness. This statement was made in the presence of the court. How quaint, with respect to the final outcome. Tobin had also made an astonishing remark from the bench: “Why are we being forced to go through this exercise?” Why, indeed.

This shows the fallacy of ‘military justice’. It also is the obvious reason why this and other officers are repeatedly assigned to military courts; they render convictions.

While totally unclassified, the theory of this witness’ testimony and secreted recantation shattered the Guilty Verdict when this same witness completely destroyed his in court testimony and secreted that information from myself and my attorneys because he did not feel it necessary to divulge this, as required by law. This involves the secreting of exculpatory evidence, a further crime supported by the overall classification of Top Secret: Supreme Court Decision Brady vs. Maryland.

The FBI also provided exculpatory information to the pathologist in this matter a week after the conclusion of the trial. He chose not to inform myself or my counsel as required by law. He remains an “expert” witness in cases involving Forensic Pathology and his reputation for truth and voracity remain unquestioned in today’s courts.

The recantation, located two years later in the office of Colonel Pierre Finck, the doctor who conducted the autopsy on John F. Kennedy and who testified before the Warren Commission, was presented to the Court of Military Review, the first step in appeals of convictions in the military system, who determined the recantation to be “newly found evidence and fraud on the court”.

Ironically, the position of the SJA in the Post Trial Review, supposedly still classified Top Secret, is in shambles because of the recantation of their star witness. This material must be declassified to provide unbelievable continuity to this travesty of justice. Maintaining any classification of this material furthers the crimes stated.

This finding by the Court of Military Review resulted in the charge of Premeditated Murder being dismissed. A General Order was issued by General William C. Westmoreland stating “All rights, privileges and property, removed as a result of the findings and the sentence, will be restored“. That order cannot give me back the two years of incarceration or recover my family.

I was very much aware of the information removed from my trial record. I eventually replaced those excised items into my copy of the Record of Trial which became mutilated by the conditions of my confinement in a 5x7 foot cell, incommunicado, with a virtual solitary existence for twenty four hours per day, no running water and a continuously burning light bulb; a condition now deemed as cruel and unusual punishment for even those prisoners in Guantanamo Bay or Abu Ghraib.

I note in your cover letter to me in sending these copies of the unclassified Record of Trial you included “Because you allege that you were “unable to maintain the integrity of the copy issued to you”, while incarcerated, all processing fees are waived.”

Thank you, again.

In fact, when I was presented with my copy of the Record of Trial in February, 1968, I quickly noted information still contained in the record as being classified Top Secret.

I contacted General Westmoreland by letter and informed him that I could not maintain the physical security necessary for the information still remaining in my Record of Trial. Westmoreland sent his Aide De Camp to recover the Record which was returned to me within a week with the noted material removed. This matter is noted in the files of the Assistant Chief of Staff for Intelligence and the archives of the files of former Secretary of The Army Stanley Resor. The matter came to light when my civilian attorneys were applying for Top Secret Clearances to access my Record of Trial. The State Department was very concerned that my civilian attorneys would have access to material which dovetails with their recently declassified documents for the crime of Treason in Wartime. They also noted, with expressed concern, that my copy of the Record of Trial had words or sentences excised, not pages, therefore ’highly sensitive information’ was in my copy and there was nothing they could do about it except try to prevent TS access to my attorneys.

I point this out to show my concern over the sensitive material in this case. I met my responsibilities and obligations. Now it is time for those currently in the position and authority to do the right thing.

I had no idea that by safe guarding information I knew to be of a very sensitive nature I was enabling the cover up to Treason in Wartime. Had I known, matters would have evolved differently.

The Top Secret classification of this matter caused much grief and anxiety. It must be declassified to put closure to this matter and further expose the crimes of Treason in Wartime and Conspiracy to Obstruct Justice in a Capital Murder Case.

It is my intention to place this material on my website for the view and edification of interested parties. Clean copies of the missing pages of the Record of Trial would be an asset. Other requested information outside Army Judiciary is pertinent to this matter.

It is note worthy to observe the comments in the following chapter of “ONE MAN, ONE VOICE”:

TERMINATED AGENT MAY HAUNT U.S., Murray Marder would write: "[W]hile comparatively obscure, the McCarthy case carries a larger potential for international complications than the celebrated Green Berets case.

What did Murray Marder know back in 1970?

There is no causal relationship between the necessity of maintaining the classification of this material and the National Security of The United States. Might the declassification affect Foreign Policy? That depends on how embarrassing the totality is, and yet, a very serious crime has been committed here and further or continued classification would be an egregious act, and an additional crime.

CIA has maintained over the past thirty years that they have no information relating to Project Cherry and are not responsible for any activity associated with Project Cherry.

The recent revelation of comments made to CID Investigators years ago by Theodore Shackley of CIA that there was no reason for President Nixon not to allow CIA to testify at Colonel Rheaut’s Green Beret Court-Martial in Vietnam in 1969 because precedent had been set by CIA testifying at my trial creates a further problem. All witnesses who testified at my trial swore under oath that they were members of the United States Army. Read Perjury.

Shackley was then Station Chief for CIA operations in Saigon.

Ironically, Shackley and his body guard came to the anti-room preceeding my trail to talk with witnesses, when he was Station Chief for CIA in Vientiane, Laos.

Last year, CIA responded to a FOIA request for information on Project Cherry by stating this information remains classified.

This is a step in the right direction. It is obvious why CIA wants to maintain the classification on this matter; they were conducting rogue operations in violation of Presidential Directives issued during National Security Council meetings. That is Treason in Wartime.

US Government Regulations presently prohibit the classification of material to cover up a crime.

But, the original, intact copies, of the original Record of Trial are either still sequestered in a locked cabinet within the Judiciary’s Top Secret Repository located in the basement of the offices of the Army Judiciary or they have been moved to Ft. Meade, Maryland, in the offices of the National Security Agency.

In either case, I am quite sure they have not been shredded and are recoverable.

I note that each copy of the bold letter cover sheet on the three separate documents you have so graciously provided; “THIS FILE TO BE RETURNED TO HQDA (JAAJ-CC). In accordance with existing FOIA Regulations, I request the names and organizations of all persons who have requested copies of my classified Record of Trial and Allied Papers and the dates of those requests.

My military attorney, Captain John Hanft, at the Pentagon SJA in 1968, informed me that a representative from the State Department had requested a copy of the Record of Trial in June, 1968. The document was returned to Captain Hanft a week later with this comment from the State Department representative: “Had we known this information was going to be discussed, we would have prevented the trial from taking place.”

Now we know why.

The President’s Foreign Intelligence Advisory Board meets periodically to “discuss” matters of concern of the NSC. Ironically, CIA, DIA, DOD and State Department personnel who attend such meetings do not talk with one another. They sit at separate tables. Therefore, it should come as no surprise that the Intelligence Community was not communicating with each other with respect to this matter. Unfortunately, this egoistic pattern continues to this very day to the detriment of us all.

The State Department denied any knowledge of Project Cherry or related documents to this matter when my FOIA request arrived at their office in 1984. They lied. The files of the Assistant Chief of Staff for Intelligence, ACSI, show State’s grave concern for exposure in 1968.

The US Army’s Criminal Investigation Repository in Northern Virginia, maintains a classified and unclassified file on myself. After sixteen years of search, the unclassified file was located in 1984. It was found in the “Record Jacket” of Inchin Lam, the so called victim in this matter, who was the third ranking member of the K/S as the First Secretary. I also request that file as well as a declassified copy of my “classified” file.

A Civil Law Suit filed Pro Se, by myself, in the Federal District Court in Washington, D.C., against the CIA, et al, for $1.3 Billion was dismissed on January 6, 2003, Without Comment and With Prejudice because the crimes alleged above were inadmissible due to the FERES DOCTRINE which precludes any member of the military, active or former, or their spouses, from seeking redress for grievances against any member of the US Government for any crime “INCIDENT TO SERVICE”. The documents of this civil action are in the files of the Federal District Court in Washington, in Judge Emmett Sullivan’s office, for those interested parties.

Your attention in this matter is appreciated and I hope to hear from you as to the procedures to be undertaken to recover the material in question and an anticipated date for full recovery of requested documentation related.

These documents may already be declassified and sitting in someone’s file, somewhere. That would not be an implausible possibility. It has happened before. It is important to remember the attempted secreting of my files inside the “records jacket” of another person, Inchin Lam.

Additionally, all of these documents were generated as a result of crimes against the Constitution of The United States.

Since I make this request as an independent writer focusing on actual and/or potential whistleblower-derived evidence exposing official wrongdoing at the highest levels of government, and since such exposure would significantly educate the general public as to all related government activities/policies/programs, I hereby request that you waive all records-search fees incident to your fulfilling this request.

I realize that decisions in this matter will be undertaken by individuals above your pay grade. Nevertheless, I appreciate your efforts and contact in this matter.

John McCarthy

Copy of Record of Trial by Court-martial


Colonel Robin Swope
Staff Judge Advocate USMA

Dear Colonel Swope,

I experienced a General Court-Martial conducted on 29-30 January, 1968, at the USARV Headquarters in Long Binh, Vietnam, resulting in a conviction for the charge of premeditated murder. Although facing the death penalty, the court, in their wisdom, sentence me to imprisonment "for the term of your natural life" only. Sentencing did not include reduction in rank, forfeiture of pay and allowances nor dismissal from the service. I continued to draw full pay although my "allowances" were drastically curtailed in violation of sentencing while incarcerated at the USDB at Ft. Leavenworth, Kansas.

Newly found evidence in the form of a written recantation by the Government's Expert Witness at trial was presented to the Court of Military Review which determined, in November, 1970, this information to be "fraud upon the court" resulting in the setting aside of the conviction and subsequent ruling by a new convening authority who determined that a conviction at a new trial was "highly unlikely", resulting in the dismissal of the charge on January 8, 1971.

I noted on the distribution list that the USMA was a recipient of a copy of this Record of Trial, Case No. CM 417936

I request a complete copy of this Record of Trial be made a available to me with a waiver for no cost, since this is "my" Record of Trial. I was unable to maintain the integrity of the copy issued to me subsequent to trial due to the environment of the maximum security 5 x 7 foot cell in which I was incarcerated in virtual isolation for months on end. I also request a copy of all allied paperwork associated with the Record of Trial at no cost to myself which I was never provided a copy of, IE, the Article 32 Hearing and the SJA Post Trial Review and copies of all interviews by CID, CIC and CIA of witnesses at trial.

Further information to assist in your search for the requested documents:

John J McCarthy, Jr.
Captain, Infantry, USAR
Unit Assigned--Detachment B-57, 5th Special Forces Group, Airborne, Project Cherry,
Case Officer for CIA Directed Black Terror and
Assassination Missions in Vietnam and Cambodia

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