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By Terrence McCoy
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By Ciara LaVelle, Kat Bein, Carolina Del Busto, and Liz Tracy
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The story of the lost army commandos of Vietnam, as they have come to be known, is harrowing. It's a tale of death, betrayal, denial, frustration, perseverance, and finally, vindication. Some 450 South Vietnamese citizens were sent to the North to do our dirty work in the early Sixties, then captured and left to rot; the U.S. Department of Defense (DOD) went so far as to declare them officially dead. Then three years ago Miami lawyer John C. Mattes revealed the Pentagon's coverup and sued the U.S. government on behalf of the survivors. The lawsuit and publicity that ensued prompted Congress to pass a law in 1996 that not only acknowledged the South Vietnamese commandos' existence, but ordered them paid back wages for years of incarceration.
This should have been the part where the music swells, the credits roll, and the teary-eyed audience files from the theater. Part Platoon, part Amistad, a sure-fire Oscar contender.
Sadly the commandos' ordeal, which included debilitating prison sentences fraught with physical and psychological torture, has dragged on. To date, only 71 of them have received compensation (between $40,000 and $50,000, depending upon the term of imprisonment). Mattes, a 48-year-old Coral Gables resident, blames the government, specifically the DOD, for ceasing the payments and stiffing his clients. The government accuses Mattes of taking too much of the commandos' money for attorney's fees.
"The government has launched a very aggressive attempt to silence me and leave these men without a penny," Mattes snaps. The attorney sued the U.S. government in 1998 in the U.S. District Court for the Southern District of Florida. "My case is about forcing the government not to renege [on its agreement to pay the commandos]," he declares.
At issue is the way Mattes will collect his share of the commandos' compensation and the size of his share. Mattes asserts his clients agreed from the start that he would receive 23 percent of any compensation plus $500 per plaintiff. The government would deposit the money into a trust account overseen by Mattes's Miami law firm. The firm would then distribute the cash to the commandos and/or their heirs, minus attorney fees. Under this plan Mattes's take could reach three million dollars.
But the 1996 law capped lawyers' shares at ten percent. At that rate, based on the number of clients, Mattes stands to collect roughly one million dollars.
Because of this inconsistency, and comments from individual commandos, the Vietnamese Commandos Compensation Commission (VCCC) stopped cutting checks in April 1998.
Mattes filed suit in August 1998. In November U.S. District Court Judge Shelby Highsmith ruled the ten percent cap should not apply. His reasoning: Mattes signed contracts with his clients before the federal law was passed. Highsmith even added a bonus. The 23 percent fee could cover work Mattes has performed on other matters such as his advocacy for veterans' benefits. Finally Highsmith ordered the VCCC to send the checks to Mattes. (The commission had been attempting to pay at least some of the commandos directly.)
In the court's final order, Highsmith noted he was "troubled" by the government's effort to amend the 1996 law while the case was pending. "Although this court does not believe that any of the actions by the Department of Defense were motivated by bad faith, it is clear that its conduct ... was not in the best interest of the commandos and resulted in further delay of the just compensation that they are entitled to receive."
Case closed, end of story, commandos get paid, Mattes gets paid, fade to black. Right?
Wrong. The solicitor general of the United States, who decides whether or not the government will appeal any unfavorable decision by a federal court, appealed the ruling.
The government lawyers charge that the lower court had no jurisdiction; that "it does not matter whether [Mattes's] clients have 'consented' to his 23 percent fee," because a federal law establishes the ten percent cap; and that his contracts with the commandos applied only to a settlement or judgment related to the lawsuit. Because the source of the money in question, a maximum of $20 million, is mandated by federal law, the contracts are irrelevant. (The lawsuit remains unresolved, the government's appeal notes.)
One of the U.S. attorneys admits some puzzlement at Mattes's position. "Unlike a normal lawsuit, this is a win-win situation," says Thomas M. Bondy from his office in Washington, D.C. "The people who suffered get compensation, their lawyer gets paid, and we, as the government, want to pay these people."
Scott Eash, a New Orleans lawyer and recent University of Miami Law School graduate working with Mattes, argues the commandos aren't upset with the higher fee: "Seventy-one of John's clients had gotten their compensation before the shutdown, and none of them complained," Eash declares.
The government insists the DOD did receive complaints about the attorney's fees. Mattes dismisses the justice department's assertion, pointing to a passage in Judge Highsmith's final order that states six people inquired about the percentage paid to Mattes.
"The DOD turns these inquiries into what they believe to be accusations of criminal activity on my part, yet they were just questions," Mattes emphasizes. That was the original pretext for stopping payment, he says.
Complaints or not, some of Mattes's commandos have gone AWOL during the past three years. From an original number of 281, his client total rose to nearly 350 at one point. Now, however, slightly more than 100 of those (all residing in Vietnam) are represented by another attorney. Mattes is pursuing a separate lawsuit against that lawyer for plaintiff poaching.
An appeals court heard oral arguments this past Friday. All that remains is for the three-judge panel to issue its decision; such rulings usually take at least three or four months, Bondy says, but this one might be issued sooner.
Mattes finds it ironic that the government denied the very existence of these men for decades, and now is supposedly trying to protect them from their money-grubbing lawyer. He sees the government's actions as retaliation for disclosing the phenomenon. Still pending is his fight to secure veterans' benefits for the group. The U.S. Army's position: Though they were under contract to the U.S. government, the fighters were members of the South Vietnamese military, and thus are not U.S. veterans. A decision on this issue is expected by late March.
In addition Mattes continues to advocate criminal prosecution of the military officials responsible for the coverup. (He also works full time as a reporter for WAMI-TV [Channel 69].)
"It's kind of a Kafka-Orwellian nightmare of trying to come to grips with these things called the justice department and the defense department," Mattes laments. "This isn't about money. My clients want an apology, recognition. They want to die with dignity. They don't want to be forced to litigate these issues."