© William George Eckhardt 2000
All
rights reserved.
“No
My Lais in this Division – Do you hear me!”[3]
Appropriate timing is critical in profitable discussion of volatile, contentious, and emotional issues. Discussion of the My Lai Tragedy is now timely. The
passage
of some thirty years has allowed the passions associated with the
Vietnam Era
to cool. Movement into history of the My
Lai Incident and its surrounding
legal, political, and ethical debate
has
begun. Reflection becomes less
meaningless self-flagellation, often to make a political point, and
more of an
appropriate use
of the lessons of history to prevent future misconduct.
This essay is not a definitive
treatment of the My Lai Incident which, obviously, is prohibited by
space
limitations. Neither is it the function
of this essay to be purely legal or technical, for historical lessons
from
famous trials certainly are not all legal.
It is important to examine what actually transpired especially
since,
following the conclusion of all of the legal proceedings, the
Government is no
longer bound by its ethical obligation to present its material only in
open
court.[4] It is appropriate to reexamine the
significant legal problems surrounding the My Lai Prosecution and to
ascertain
if current legal rules are satisfactory or have been corrected.[5] Of even greater importance are the lessons
learned from this horrible battlefield tragedy – how has institutional
behavior
been modified?[6] Lastly, a brief look at the future treatment
of the My Lai Tragedy is instructive.[7] The ultimate purpose for and thesis of this
essay is to record how this tragic event has been “used” to undergird
responsible command and to prevent future battlefield misconduct.
Normally the function of a criminal
trial is to resolve individual guilt. That
singular task is in itself quite difficult in well-publicized cases. When military personnel are tried for
misconduct on the battlefield, there is often a mixture of individual
and
corporate responsibility. The individual
may be guilty, but equal or greater responsibility may rest with
society in the
selection, training, leadership and mission given to the alleged
lawbreaker. Separation of individual and
corporate responsibility becomes almost impossible.
Matters are compounded even further when there
is a perception that national honor and political cause are at stake. Individual criminal accountability may be
lost in such a volatile mixture.
When such battlefield misconduct
occurs, the prosecutor’s function is often far greater than merely
bringing a
law violator to the bar of justice. It
can be quite politically costly for the Government to expose
battlefield
misconduct and to attempt to hold accountable the perpetrators. In the development and evaluation of criminal
cases, the normal and routine becomes complicated.
Fact gathering – the essential basis of a
criminal trial – is often removed in both time and distance from the
event. Rarely does a prosecutor of
war-related crime have the luxury of routine contemporary police
investigatory
and forensic expertise. Even gathering
the basic facts may be complicated by security concerns that can even
prevent a
visit to the “crime scene.” Further,
basic facts may be suspect in the minds of many if they come from
“enemy”
lips. Absence of the normal, solid,
factual basis can lead to unfounded and unfocused public speculation
and can
fuel passions destructive to a reasoned judicial process.
Yet, if a trial of battlefield misconduct
becomes notorious, the Government, by the very act of prosecution,
publicly
labels that conduct unacceptable and criminal.
Publicity, flowing from the very act of prosecution, fuels the
engines
of prevention that is the chief goal of prosecution.
My Lai is more than a battlefield
tragedy. My Lai is more than the subject
of several well publicized criminal trials.
The very word “My Lai” is synonymous with battlefield atrocity. Within the context of the Vietnam Era, it may
well have been the turning point in an unpopular war and may well be a
high
water mark in the “cultural civil war” that befell our country in the
late
1960s and early 1970s. In countries that
respect the Rule of Law, incidents such as My Lai – with their
attendant unique
and volatile legal, political, and social baggage – invariably end up
in the
courtroom. Yet a trial – with individual
rights and liberties at stake and constrained by the rules of evidence
– may
not be the ideal forum for authoritatively disposing of such
battlefield
misconduct. Accordingly, in reflecting
on such incidents, the focus should be broader than courtroom issues
and must
be more interdisciplinarily addressed to historic lessons of
consequence.
Why examine My Lai? Such questions
are often best answered by
specifying what should not be included.
An examination of My Lai should not be an exercise in national
self-flagellation. One of the biggest
hindrances to a productive examination of My Lai was the unreasoned
anti-United
States rhetoric coming from audiences in both this country and abroad. Most discussions of this type took issue with
the United States Government in general, or with its foreign or
military policy
in particular, and used My Lai merely as the vehicle for criticism. The division in our own country, driven by
political beliefs, saw one side which was too quick to criticize and
another
side that would refuse to admit that there was a problem or to even
enter into
the discussion.[8] Yet, honest, self-critical examination of
such incidents is needed so that our country – and indeed other
countries – can
learn from the past to prevent in the future.
As every teacher knows, all examples designed to influence
future
conduct do not have to be “good.”
Indeed, My Lai is so horrible and had such an impact on the
world’s
social conscience that it became an immensely important example of how not to conduct oneself on the
battlefield. As will be noted later,[9]
My Lai has
caused a fundamental reexamination in the teaching of battlefield
fundamentals,
has provided both the reason for and the contents of discussions
surrounding
professional conduct on the battlefield, and has been the motivation
for new
procedures to insure responsible command.
Indeed if the preventive prosecutorial function is to continue,
My Lai
must not only be remembered, but it must continually be “used” to
prevent
future incidents.
No one will ever know exactly what
happened at My Lai on March 16, 1968.
The initial cover-up within the Americal Division; the lack of a
timely
investigation; the absence of physical forensic evidence; the disparity
in
culture, education, and politics between victims and perpetrators; and
the
pollution of politics, cause, and national honor make definitive
recreation of
events impossible. The sources of facts
are numerous: news media accounts,[10]
journalistic
books,[11]
the Peers
Report (an official investigation),[12]
Congressional testimony,[13]
CID
(Police) Reports,[14]
and trial
testimony.[15] Each of these sources has flaws.
Yet, there are common facts that are
undeniable and largely undisputed.[16] The basic facts of My Lai are thus not in
serious dispute.[17]
Charlie Company of Task Force
Barker, a part of the Americal Division, conducted operations in Quang
Ngai
Province in the Republic of South Vietnam in March of 1968. The My Lai Operation was scheduled for March
16th. The area in question, known to the
Americans as “Pinkville”, was a “hotbed” of enemy activity. Charlie Company, led by Captain Ernest Medina
and having Lieutenant William Calley as one of its Platoon Leaders, had
been
operating in this area and had received several casualties from mines
and
booby-traps, some undoubtedly planted by civilian Viet Cong
sympathizers.
The night before the operation,
unfortunately after an emotional memorial service for a respected
company
casualty, Captain Medina briefed his company on the upcoming operation. This operation was unusual because
intelligence indicators pointed, erroneously it turned out, to the
presence of
a Viet Cong Battalion in the village. A
significant engagement was expected. It
is widely agreed that Captain Medina gave his Company quite a pep talk. He ordered his men to destroy all crops, to
kill all livestock, to burn all houses, and to pollute the water wells
of the
village. There is, however, an important
disagreement concerning his reported orders to kill non-combatants.[18] Significantly, he gave no instructions for
their segregation and safeguarding.
After an artillery preparation,
Charlie Company was helicoptered into the area at 0730 and began a
sweep
through the village. Captain Medina
remained on the outskirts of the village so that he could effectively
control
the operation. For all practical
purposes, there was no resistance.
During the next three hours, houses were burned, livestock was
killed,
and women were raped and sexually molested.
Groups of villagers were assembled and shot.
Especially large groups of bodies were
located in a ditch and beside a trail.
In short, approximately five hundred non-combatants died.
During this period, Captain Medina
remained outside the village, and no evidence placed him at the site of
any of
the group killings. He gave an order to
conserve ammunition at approximately 0830 in the morning.
His Vietnamese interpreter begged him to stop
the killings. He clearly possessed the
ability to communicate with his subordinates, and they with him. When he physically came upon a group of
bodies on a trail, he ordered a cease-fire that was obeyed. Only a small portion of the soldiers
participated in this misconduct. Yet,
those who did not participate did not protest or complain.
Captain Medina later told interrogators that
he lost control of his unit and found out “too late” what took place.[19]
Circling overhead in a helicopter
that morning was Warrant Officer Hugh Thompson and his two door
gunners, Specialists-Four
Larry Colburn and Glenn Andreotta.
Puzzlement caused by unusual activity on the ground turned into
alarm
and outrage as they realized that Vietnamese civilians were being
killed. Hugh Thompson heroically landed
his
helicopter and ordered his door gunners to “cover him” as he confronted
Lieutenant Calley. Thompson and his men
saved civilians who were in a bunker, carried a wounded child to the
hospital,
and vigorously protested to their superiors.
Their efforts resulted in the issuance of a cease fire order
from higher
headquarters.[20]
During the late afternoon, when
querried by higher headquarters and ordered to return to My Lai,
Captain Medina
gathered his platoon leaders. During
that meeting he asked Lieutenant Calley: “How many was it – 100 – 200?”[21] Unfortunately, the order to return to the
village was countermanded, ostensibly for safety reasons.
The tragic day ended as horribly as it began.
Captain Medina and an intelligence officer,
Captain Eugene Kotouc, interrogated Vietnamese prisoners in conjunction
with
Vietnamese authorities. Captain Medina
shot over the head of a Viet Cong suspect to force him to talk. Captain Kotouc threatened other suspects with
a knife, cutting off the finger of one suspect.
When Captain Kotouc would point symbolically toward heaven, the
accompanying Vietnamese police would lead the suspect away and shoot
him.
Public exposure of the My Lai
incident did not take place for over a year.
An unusually articulate letter triggered an investigation by a
former
soldier, Ron Ridenhour, to various governmental officials.[22] Yet, it was only after the Army Inspector
General had completed his investigation and had turned the probable
criminal
offenses over to the Criminal Investigation Command for further
criminal investigation
and after Lieutenant Calley had been formally charged that journalist
Seymour
Hersh reported the incident.[23] Contrary to the opinions of many public
commentators, the press did not expose the incident or cause the
Government to
react. The Government merely did its
duty and reacted to a credible, but unusually articulate, citizen’s
complaint.
News media reporting resulted in an
instant cause celebre. The
corroboration of unimaginable allegations
and their subsequent investigation riveted America.
Pictures of the carnage at My Lai taken by
Ronald L. Haeberle, a young Army enlisted reporter during the
operation, were
published with devastating effect in the December 5, 1969 issue of Life
magazine.[24] Time magazine placed Lieutenant Calley on its
cover with a bold caption: “The Massacre: Where Does the Guilt Lie?”[25] The evil of what transpired was further
graphically illustrated during a CBS in person interview with Paul
Meadlo, a
soldier who assisted Lieutenant Calley.
Paul Meadlo emotionally confessed to shooting old men, women,
children,
and babies.[26]
Lengthy investigations, hearings,
and trials followed. The Criminal
Investigation Command, unaided by today’s modern computer technology,
gathered
witness statements from former soldiers scattered across the United
States. These reports were the factual
basis for prosecution. Lieutenant
General William R. Peers was appointed to conduct an inquiry into the
incident
and its possible causes. His report is a
classic government “White Paper,” gathering appropriate background
information
and making necessary individual and institutional assessments. However, the Peers Report’s witness
statements were largely unhelpful to the trial lawyers.
Compound questions coupled with rambling,
unfocused answers that often were not pursued provided little trial
ammunition. It should be noted that
testimony before the House Armed Services Committee was given a
congressional
classification and was not released prior to the trials.
The contents of this Congressional testimony
played no role in the trials. However,
the Armed Service Committee’s calculated attempt to block release of
this
testimony and thus sabotage the criminal trials had a profound impact.[27]
The trials that followed were
military courts-martial because the accused were soldiers and because
the
Congress placed “war crimes” exclusively in the military criminal code.[28]
Since
Congress specifically designed trials by courts-martial to be as
similar to
criminal trials in civilian federal district courts as possible,[29]
the
military venue was largely irrelevant to the legal issues involved.
“War
crimes,” in the international law sense, is a technical term. My Lai was not a “war crime” because the
victims were not enemy aliens in an occupied territory.[30] Even though not technically “war crimes,”
what occurred at My Lai clearly fell within the list of crimes
specified by
Congress in the Uniform Code of Military Justice – murder, assault,
rape, and
larceny, among others. These were the
crimes chosen for prosecution.
There were two chief locations for
these courts-martial: trial for the “ground action” occurred primarily
at Fort
McPherson, Georgia, and the trial for the “cover-up” at Fort Meade,
Maryland. Lieutenant Calley was tried at
Fort Benning, Georgia, and Sergeant Mitchell was tried at Fort Hood,
Texas,
before the cases were consolidated. In
all, some thirty individuals were accused of “commission and omission.” Charges were preferred against sixteen, five
were tried, and one (Lt. Calley) was convicted.
Charges against twelve others were dismissed prior to trial.[31] This prosecutorial record was abysmal. Yet, in retrospect, as will be seen, what is
amazing is not the poor prosecutorial trial record but how far the
prosecution
was able to progress despite herculean odds.
A.
THE “ORDER.”
Passage of time is the enemy of
justice. Memories fade and prosecutors
are forced to make pressured decisions by statute of limitation
deadlines. In the My Lai Incident, there
certainly was
no absence of witness statements. Yet,
reconstructing a battlefield incident some two years after the fact was
extremely difficult. Individual
involvement could be isolated and ascertained but the bigger problems
of “why”
the orders were given and the scope of the orders themselves still
remained. All of the witnesses indicated
that they had received a “pep talk” briefing ordering the company to
destroy
all crops, kill all livestock, burn all houses and pollute the water
wells. In all my military experience
before and since, I have never seen or heard of such an order. Obviously with the passage of time, the chief
prosecutorial concern and focus was on human life.
Surprisingly, there were no
customary instructions for handling civilians who might get in the way. Significantly, most simply declined to
participate. Not unexpectedly, only
those who participated in the killings said that they received orders
to do so. Prosecutors were quite puzzled
by the lack of
uniformity of the content of the order as it related to the killing of
non-combatants, particularly since the theory of prosecution for
Captain Medina
was that he was guilty as a principle to murder because he issued an
order to
kill non-combatants. Participating
defendants attempted to use the alleged Medina order to kill
non-combatants to
justify their actions both morally and legally.
The public viewed the order as evidence of intentional
governmental
policy, undoubtedly reasoning that all orders are governmentally
directed and
sanctioned.
This order dilemma was both resolved
and complicated when civilian counsel for Captain Medina, F. Lee
Bailey,
requested a polygraph examination. F.
Lee Bailey had long been a public supporter of polygraph examinations. The Army, under the leadership of Robert A.
Brisentine, Jr., who was recognized as one of the most professional
polygraphers in the United States, utilized polygraphs within a system
of
checks and balances on the equipment itself, on the control questions
utilized,
and on the examiner’s competence and performance. The
Government has long relied on their
accuracy. In preparation for the
Defense-requested polygraph, the Prosecution spent days identifying
questions
that needed to be answered. Nearly all
of our questions in fact were answered in the three days of examination. The results were startling but not totally
unexpected.
Captain Medina “was truthful
when he denied ordering or intentionally inferring to his company
during his
briefing of 15 March 1968, that non-combatants be killed at My Lai (4).”[32] Yet, Captain Medina “was not truthful
when he denied knowing that his company had killed numerous
non-combatants at
My Lai (4) prior to 0930, 16 March 1968, and was aware that his company
was
killing numerous non-combatants at My Lai (4) between the hours of 0730
and
0900, 16 March 1968.”[33] Since the killing occurred prior to 1030, he
possessed knowledge during a critical period.
The Prosecution thus learned from the polygraph examination that
Captain
Medina had not intentionally ordered this massacre, but that he had
known about
it, had the ability to stop at least a portion of it, and had done
nothing to
stop it. In more theoretical criminal
law terms, this information moved a key participant from direct to
indirect
criminal responsibility since he did not order or participate in the
killings
yet knew about the killings and had both the duty and the ability to
prevent
them.
Captain Medina was thus the pivotal
figure between personal responsibility and command responsibility –
between
ground action and cover-up. I was
personally relieved when I learned of these results.
I found it difficult to believe that an
American officer would issue such an order to kill defenseless
non-combatants. The polygraph confirmed
the information from the participants themselves about the contents of
the
order. This information pointed to
ill-disciplined troops getting out of control.[34] There is a great deal of difference between
out of control troops and troops carrying out calculated government
policy.[35]
The Medina Polygraph Examination
helped to resolve the pressing factual question regarding official
orders
pertaining to non-combatants. Yet, this
information complicated the legal theory of prosecution for a major
participant,
Captain Medina, the Company Commander and only surviving “on scene”
supervisor.[36] At the trial itself, mechanical results of
polygraph examinations were not admissible.
The law at the time was quite clear.[37] What was admissible is what a properly warned
suspect, in this case Captain Medina, told his polygraph examiner. In short, the “charts” are inadmissible but
the “pre-test confession” is. In his
pre-test statement, Captain Medina stated that at 1025, he issued an
order to
his platoon leaders to cease killing innocent civilians.[38] This admissible verbal statement is in sharp
contrast to the inadmissible polygraph charts which indicated that he
knew much
earlier – 0730 to 0900 – that his men were killing non-combatants. While the polygraph results may not have been
admissible, they made the Government’s duty to prosecute quite clear. A graphic case of command responsibility
presented itself.[39]
B. PROSECUTION OF
FORMER SERVICEMEN.
One of the more important
consequences of a cover-up and complex investigation in a draft-era
Army is the
“turn-over” of personnel who leave the Army at the expiration of their
terms of
service. For the My Lai Incident, this
meant the loss of jurisdiction for some ninety percent of the members
of Captain
Medina’s Charlie Company – approximately fifteen of whom were deemed
suspects.[40] Stated differently, only those who remained
in the Army were prosecuted. The
practical dictates of the law compelled this result.
Congress responded to the events of
World War II and the Nuremberg trials by utilizing the Uniform Code of
Military
Justice to make the international concepts of war crimes a part of our
domestic
national criminal law.[41] But Congress envisioned a far more
comprehensive jurisdictional basis for courts-martial than the Supreme
Court ultimately
found constitutionally permissible. By
the late 1960’s, Supreme Court precedents stated that courts-martial
had no
jurisdiction over civilians accompanying the armed forces, whether
military
dependents or employees, or even over former servicemen once they had
been
discharged.[42] The ramifications of these decisions on a
comprehensive system of war crimes enforcement did not become publicly
and
practically apparent until My Lai. In
short, established precedent would seem to preclude prosecution of
former
servicemen, now civilians, who committed offenses at My Lai.
Eventually, the Department of
Justice declined to pursue prosecution.
However, there were three jurisdictional bases that could have
been
chosen. The first was trial by
courts-martial
of these former servicemen, now civilians, for violation of the Law of
War. Since Congress was utilizing its
separate authority to punish offenses against the law of nations,[43]
the
Government could argue that war crimes are simply unique and differ
from other
military offenses. The international
obligation to prosecute war crimes further distinguishes this basis of
courts-martial jurisdiction from the Supreme Court precedent forbidding
prosecution of former servicemen for more normal violations of the
Uniform Code
of Military Justice.
A second possibility was trial by a
military commission.[44] Historically, military commissions were
utilized for extraordinary problems. In
establishing military commissions, the President is given flexibility
in the
choice of both the forum and the rules of evidence.
This flexibility could be utilized to create
a forum for the trial of existing offenses that would preserve the
rights of a
defendant. Lack of recent usage and
clouded, unsavory historical precedent made this choice particularly
unattractive. For example, Abraham
Lincoln in the Civil War draconianly used such commissions to control
Indiana
citizens of questionable loyalty to the federal government,[45]
and the
United States used repressive military authority to control the
Japanese
population in the United States during World War II.[46]
A third method, arguably the most
attractive, amounted to an ad hoc but
rational deviation – trial in a federal district court for federal
offenses
previously made criminal in the Uniform Code of Military Justice. Because only the forum would change and
because such a change arguably would not be prejudicial, this ad hoc forum creativity would be
constitutionally permissible.[47] The unattractiveness of these three options
is apparent, as endless litigation would undoubtedly result. Not unsurprisingly, discharged servicemen who
committed offenses at My Lai were not prosecuted.
An important footnote to the problem
of jurisdiction over former service personnel who have committed war
crimes
must be added. Political will and
consensus to change the law came recently in 1996 when the Government
feared
that United States citizens who had participated in war crimes in the
former
Yugoslavia might escape justice.[48] The United States was forced to confront the
problem and to make clear that violations of the law of war can be
tried in
federal district courts. From my point
of view, one of the major legal problems so apparent in the My Lai
trials has
been successfully resolved.
C.
INTERFERENCE WITH THE TRIAL PROCESS
Public interest in judicial
resolution of criminal allegations is essential to a healthy democracy. However, justice is bruised when it must be
dispensed in a “goldfish bowl,” especially in an age of thirty-second
television
sound bites that convey much emotion and little substance.
As noted previously, justice is more
difficult when national honor and cause are at stake.
Under normal circumstances, a
prosecutor’s strongest ally is the civic virtue that witnesses have a
duty to
come forward and tell the truth.
Unfortunately, such was not the case in My Lai.
Most citizens simply wanted the problem to go
away. Witnesses soon learned that all
they had to do was to say that they “could not remember” and they would
avoid
embarrassment and controversy. In fact,
public peer pressure seemed to be on the side of non-cooperation. The inability to obtain information meant
that the Government was foreclosed from determining the extent of the
tragedy. Witnesses progressively
remembered less and less. Lawyers even
advised their witness clients to avoid process, leave the country, or
reject
immunity because of possible prosecution by an international tribunal.
Governmental officials were less
than enthusiastic. Although there were
hints that the cases should not be prosecuted, the Prosecution Team was
unaware
of any overt official hostility. From
our point of view, most of the difficulty came after the public outcry
following the conviction of Lieutenant Calley.
President Nixon’s precipitous intervention was countered by an
articulate, courageous, respectful military prosecutor, Captain Aubrey
Daniel.[49]
More
troublesome to us was the failure to move Lieutenant Calley immediately
to Fort
Leavenworth, Kansas, where the Government could utilize the more
conservative
and favorable habeas corpus precedent
for the collateral attack in federal court which we were convinced
would, and
which did in fact, follow.[50]
But, by far the most serious
interference came from the military’s Congressional “friends.” Representatives F. Edward Hebert and L.
Mendel Rivers of the House Armed Services Committee decided that
prosecution of
the events at My Lai was not in the national interest.
Having reached that conclusion, they
calculatingly used their considerable power to sabotage the trials. Their plan was technical, simple, and almost
effective. They held hearings (calling
all the necessary prosecution witnesses), placed a congressional
security
classification on this testimony, and refused to release it. Despite vigorous and varied protests,[51]
Congress
adhered to this refusal, intending that this refusal would prevent the
Government from calling any witness who had testified before the
Committee. If the Government could not
call necessary witnesses, it would be prevented from prosecuting the My
Lai
Incident. Such a result is compelled by
concepts of due process and by the Jencks Act[52]
which
requires, as a matter of basic fairness to a criminal defendant, that
the
Government provide to an accused a copy of witness pre-trial statements
in the
Government’s possession to facilitate cross-examination.
The remedy for non-production is to prevent
the Government from calling a witness whose statement was not released.
Thus, much like the Nixon Tape Case,[53]
there was
a fundamental clash between governmental branches, with the Congress
attempting
to veto an executive branch prosecution.
The Military Judge in the first My Lai court-martial (Sergeant
David M.
Mitchell) refused to let the Government call witnesses who had given
congressional testimony.[54] Not surprisingly, the Government’s case was
weakened, and the accused was acquitted.
Fortunately for the Government, other military judges – after
extensively “pleading” with Congress to release the testimony – found
that it
was error not to provide a copy of the Congressional testimony of
witnesses but
that the error was harmless in view of the extensive number of
pre-trial
statements available. This direct
congressional assault on the prosecution produced, in my mind, the only
serious
constitutional question. This constitutional issue was resolved by the
Fifth
Circuit, sitting en banc, deciding
eight to five that the clear error of non-release of this material was,
in
fact, harmless.[55]
D.
TROUBLESOME LEGAL STANDARDS.
1.
COMMAND CRIMINAL RESPONSIBILITY.
After most controversial
governmental actions, the search for blame or responsibility begins
with the
common sense question: “What did he know and when did he know it?”[56] Instinctively, we point to knowledge – the
key to accountability. Accountability
for battlefield incidents can extend beyond the military to the
civilian chain
of command and, in theory, include the President. Of
course, there are several types of
accountability: criminal, administrative, political, and historical. These are all different. Importantly,
in our society, criminal
accountability is not imputed. Culpable
personal involvement must be established within a criminal law
framework and
must be proven beyond a reasonable doubt.
The unique military requirements of
communal living and dangerous instrumentalities shape military law. The uniqueness of military law is
constitutionally recognized when the Founding Fathers placed the
Congress, and not the Commander-in-Chief President, in
the “driver’s seat” in determining rules and regulations for governing
the
armed forces.[57] However, because of the unique societal
responsibilities of the military, there are also certain legal
liabilities.
One of the liabilities is that the
military is the only profession whose members can be criminally
punished for inaction. This is noteworthy because the
criminal law is built upon two events occurring simultaneously: a
prohibited
act (actus reus) with a proper intent
(mens rea). In criminal
law, both must be simultaneously
present. This, of course, is not
the case with command criminal
responsibility. If one “aids, abets,
counsels, commands, or procures”[58]
the
commission of a crime, one is a principle and is considered to have
committed
the actual criminal act itself. But
command criminal responsibility is one step removed: someone else,
usually a
subordinate, commits the act. The
inquiry then must examine an individual’s connection with the offense
including
the duty to intervene, the ability to communicate and do something, and
knowledge. Since duty and communication
ability are usually givens, the practical vital connection becomes
“knowledge.”
The establishment of that connection
or knowledge became quite controversial in the case of the company
commander at
My Lai, Captain Ernest Medina. The
articulation of the relevant command criminal responsibility standard
was found
in Department of the Army Field Manual, The
Law of Land Warfare. The command
criminal responsibility standard was then, and remains to date,
legislatively
uncodified. In paragraph 501, entitled
“Responsibility for Acts of Subordinates,” the Manual makes clear that
a
military commander may be responsible for war crimes committed by
subordinates
or persons under his control. The key
sentence states:
The commander is
also responsible if he has actual knowledge, or should have knowledge,
through
reports received by him or through other means, that troops or other
persons
subject to his control are about to commit or have committed a war
crime and he
fails to take the necessary and reasonable steps to insure compliance
with the
law of war or to punish violators thereof.[59]
A commander
is thus required to intervene and, if intervention comes too late, to
appropriately see that violators are brought to justice.
One is thus left with the
application of the phrase – “[knew] or
should have [known,] through reports received by him or through other
means.”[60] This standard, the Medina Prosecution team
contended and the Military Judge instructed,[61]
required
actual knowledge which, of course, could and in most cases would be
proven by
circumstantial evidence. Thus some
intent – personal linkage with the event – would be required. The Medina Command Criminal Responsibility
Standard proved to be quite controversial.[62]
For
example, Telford Taylor, a respected and articulate Nuremberg
Prosecutor,
argued that a standard requiring actual or constructive knowledge was
too
broad.[63] However, in setting an appropriate standard,
it is important that the knowledge element be preserved.
If it is not present, then one has taken away
both the act and the intent and created criminality without personal
fault
based simply on the action of others.
The standard of command criminal
responsibility is still not clear. The
American standard has been declared politically unworkable in paperwork[64]
accompanying the more conservative standard established by the later
1977
Protocols to the Geneva Conventions: “knew or had information which
should have
enabled them to conclude in the circumstances at the time.”[65] Surprisingly, the drafters of the standards
for the Yugoslavian Tribunal apparently ignored the Protocol Standard
when they
adopted their command responsibility standard: “knew or had reason to
know.”[66]
Such an important legal standard
should be rigorously discussed and codified.
Prosecutors should not be given an opportunity to “manipulate”
the law
in their favor. But, even more
importantly, this standard demands codification because it is the very
heart of
military professionalism. Disciplined
and controlled use of force is the very reason for professional armed
forces. The criminal standard for
command criminal responsibility undergirds the unique and basic
societal
obligation of every sergeant, lieutenant, captain, colonel and general
to
control his or her troops and to intervene at the first sign of
ill-discipline. Its articulation is not
primarily for criminal law purposes but to clearly and authoritatively
state
national consensus on the professional ethical standard expected of
officers
and non-commissioned officers.
Importantly, a clearer articulation of the standard allows
clearer
teaching and learning resulting in prevention of battlefield offenses. Appropriate articulation of the standard of
command criminal responsibility remains the last unfinished business of
My Lai.[67]
2.
PRETRIAL PUBLICITY.
One of the basic fundamentals of due
process is that an accused is entitled to a fair trial and to have
guilt or
innocence determined beyond a reasonable doubt based upon facts proven
in open
court. A jury must not be influenced by
information in newspapers, magazines, books and on television. Notorious cases always cause problems. The My Lai trials, in general, and the trial
of Lieutenant Calley, in particular, tested the boundaries of the
authority of
a trial judge to insure a fair trial and highlighted the clash between
the
First Amendment’s right of Freedom of the Press[68]
and the
Sixth Amendment’s guarantee of a Fair Trial.[69]
If massive publicity presumptively
denies an accused a fair trial, there simply could not be trials in cause celebre cases. There must be some
nexus between pretrial publicity and the jury.
There must be more than mere exposure to the facts.
Automatic dismissal because of massive
pretrial publicity is not the answer.
The fact-finding process itself must be affected.
Vigorously using the tools suggested
by the Supreme Court in the Sheppard
case,[70]
Judge
Reid W. Kennedy in the Calley court-martial set the example for other
My Lai
trials by using every power in his arsenal to ensure a fair trial for
Lieutenant Calley. He issued orders to
prospective witnesses not to discuss their testimony publicly. He issued orders to prospective court-members
to refrain from intentional exposure to facts regarding the entire
incident. He directed counsel to explore
possible relief within the broader federal court system.
He instructed the Government to forward to
the Attorney General incidents of violations of his orders by potential
witnesses and the intentional interference with due process by the
media who
interviewed them. He issued gag orders
to court personnel and to those even remotely connected with the trial. He promulgated extensive rules of court
controlling access and prohibiting cameras and recording devices in and
near
the courtroom and provided special instructions regarding the handling
of
transcripts and exhibits. He revoked
press credentials for violations of his orders.
He even asked the defense if they wanted pre-trial sessions to
be closed
to the public. Judge Kennedy was similarly conscientious in voir
dire, sua sponti asking each day if there had been
any exposure to
outside influences.[71]
It is the creativity of the trial
judge, rather than the precise legal rules, that is important. A trial judge has flexible and extensive
power. The vigorous, creative use of
that power is key in maintaining the integrity of the trial process. Even with such extensive worldwide publicity,
the My Lai trials offered proof that vigorous trial judges can insure
that
guilt or innocence is determined on facts presented in open court. Publicity need not kill fair trials.
3.
OBEDIENCE TO ORDERS.
In incidents such as My Lai, the
practical fulcrum of individual responsibility often turns on obedience
to orders. Ascertaining individual
responsibility within
a military group is always difficult.
Where does corporate responsibility become individual
criminality? After all, a military is
built upon
discipline, responsible command, and obedience to orders.
Is it fair to hold a soldier accountable for
executing the orders of his superiors, especially in a life-threatening
combat
environment?[72] Yet, the emotional impact of having to
consider this issue and the practical training of soldiers to disobey
illegal
orders are more troublesome than the actual application of the legal
standard
regarding obedience to orders, which is rather straightforward.
Wearing a uniform does not make one
a moral automaton. One is always
accountable to God and to conscience when executing governmental orders. Illegal orders are, of course, the
responsibility of both the one who issues the order as well as the one
who
obeys that order. Both are criminally
responsible
as principals. For the one who obeys the
order, the analysis is as follows.
First, as with My Lai, there must be a factual determination
that a
soldier did receive such an illegal order.
Was there or was there not such an order? Even
if there is no fabrication concerning
the receipt of such an order, not every order leads to exoneration. Second, there must be a determination
regarding the legality of the order. For
example, the Military Judge in the Calley court-martial determined, as
a matter
of law, that any order received by Lieutenant Calley directing him to
kill
unresisting Vietnamese within his control or within the control of his
troops
would have been illegal.[73] The analysis now turns to an inquiry
regarding mental state or knowledge.
Third, for there not to be a
defense, a soldier must know as a reasonable person (an objective
standard: “a
person of ordinary sense and understanding”) or have actual knowledge
that an
order is illegal. As noted on appeal,
Lieutenant Calley’s real quarrel was with the reasonable person or the
objective standard.[74] He seemed to want, for obvious reasons, a
subjective standard.
The law is simpler in articulation
than in practical, non-courtroom application.
Teaching the principle of the necessity to disobey illegal
orders is
complex and sophisticated in a critical area that begs for simplicity
and
clarity. When discipline and life itself
depends upon instantaneous obedience to orders, it seems counter
productive to
teach soldiers to disobey orders. Military
organizations simply are not academic debating societies.
The only way to teach the duty to disobey
illegal orders is to plainly state that the intentional killing without
justification of non-combatants – old men, women, children, and babies
– is
murder and is illegal. Having stated
that obvious truism, it must be stressed that there is no lessening of
the
strong presumption of legality of orders.
But, if an order is of doubtful legality, soldiers are to ask
for
clarification or, at the more senior levels, to ask that the order be
put into
writing.
Yet, the most effective teaching
point is not
solely to teach negatively – disobey illegal orders – but to teach
positively –
expected proper professional battlefield behavior.[75] The emphasis thus becomes the professional
function of a soldier, stressing specific actions that are expected. My Lai forced the teaching of the
obvious. Before My Lai, no one would
have thought it necessary to formally teach the youth of American not
to kill
innocent women, children and babies.
But, as we learned the hard way, such lessons are obviously
necessary.
Practical deterrence is one of the
chief goals of any criminal prosecution.
How a government uses a tragedy to teach, to prevent and to
reform is
critical.
Examples can be both good and
bad. As every teacher can attest, often
there is more learning from a bad example than from a good one. Occasionally, an incident or example is so
bad that it focuses individual and institutional attention on a
specific
problem. Such was the case of the My Lai
Incident and the issue of professional conduct on the battlefield. Lessons learned from the My Lai Tragedy were
fundamental and essential. The energy
and focus caused by My Lai significantly contributed to increased
military
professionalism and to the prevention of future tragedies not only by
the
American armed forces but by armed forces worldwide.
A. ILL-DISCIPLINE ON
THE BATTLEFIELD LOSES WARS.
The Rule of Law girds our public
life. Any violation of that fundamental
principle brings instant societal reaction. Revulsion from the extent
and
mindless brutality of the My Lai Incident caused a shift in public
opinion
toward opposition to involvement in Vietnam and in the Vietnam War. Our nation expects those who use force –
whether
they be fireman, policemen or soldiers – to follow the Rule of Law. Whenever there is a death or a serious
incident, we carefully investigate, or, put another way, “Monday
morning
quarterback” the incident. Both our
liberty and our honor are too important to do otherwise.
When force is used, we demand that it be done
lawfully and professionally.
Soldiers are asked to die for
causes. My Lai teaches that when
soldiers behave criminally and unprofessionally, their cause can be
damaged and
they and their comrades may die in vain.
Misconduct on the battlefield loses wars. How
does one prevent such battlefield
misconduct? A soldier will answer with
one word: discipline. The My Lai
Incident required a reemphasis of five long-standing and professional
basics.
1. Professional training. Those
who use force must not only be
proficient in the performance of their individual skills but they must
be able
to perform those skills in harmony with others.
Being a soldier – or a policeman or a fireman – requires
constant
training. A disciplined soldier who is
well trained and motivated is much less likely to commit battlefield
offenses.
2. Compliance with standard
operating procedure. Collective
training leads to an agreed upon and approved way of acting in a given
situation. Training makes correct action
instinctive. Reflexive, well thought out
procedures for using force are necessary because deliberate, rational
thought
is lessened with the addition of adrenaline and confusion in a
fast-moving
life-threatening situation.
3. Compliance with the rules of
engagement. Rules of engagement tell
soldiers when and under what circumstances they may shoot.
The entire chain of command must know,
understand and enforce these rules, which are both general in nature
and
conflict specific. Such rules are vital
to the control of an armed force.
4. Control of subordinates. A
responsible commander is what legally and
practically distinguishes an armed force from rabble.
My Lai teaches the necessity of clear,
concise, legal orders. Importantly, My
Lai teaches every sergeant, captain, colonel and general that they must
intervene at the first sign of lack of discipline.
There is no room for a non-involved, “head in
the sand” approach. Inappropriate
inaction will be prosecuted.
5. Insist on the truthful, moral
“high road”. Whenever force is used,
three questions must be answered in the affirmative: (1) Is it legal?;
(2) Is
it moral?; (3) Does it make common sense?
Especially in the uncertainty and chaos of the fog of war, the
answers
to each of those questions can vary.
Only if the answers are all positive should an order be given. In other words, train, expect and demand the
highest ethical conduct from those that employ force.[76]
B. PRACTICAL USEFUL
RULES: BRINGING THE LAW TO
THE
BATTLE STAFF
My Lai forced the return of the Law
of War to the profession of arms from the providence of lawyers,
politicians,
and diplomats. The importance of this
move cannot be overstated because professional conduct on the
battlefield is
the essence of military professionalism.
The “legalization” and “criminalization” which seemingly
represented the
post-World War II Nuremberg and the post-Far East War Crimes trials
contributed
to an intellectual shifting of this problem away from commanders. My Lai’s aftermath demanded a workable,
practical, not overly technical approach re-inculcating military
fundamentals. It was apparent that the
obvious must be expressly taught:
soldiers are to protect the innocent and are not unnecessarily to kill
noncombatants – old men, women and children.[77] The Army set about creating a training
program[78]
that has
become the model for the rest of the world.[79] The United States “military’s law of war
program is one of the more comprehensive in the world.”[80]
Additionally, computer technology
and renewed emphasis on professional battlefield behavior produced
remarkable
progress on rules of engagement. Rules
of engagement are a combination of the dictates of the law (primarily
Law of
War), of government policy, of diplomatic requirements, and of
operational
imperatives.[81] Rules of engagement translate domestic and
international law and politics and the dictates of operational
necessity into
rules telling military personnel when and how to shoot.
Historically, they have always included the
written and unwritten codes of the profession of arms.
Complex machinery increased the demand for
such rules. Inter-operability between
services and among allied armed forces increased the need for workable
rules of
engagement.
Thus, the timing was right for the tremendous
advances that were made with the adoption of the Peacetime Rules of
Engagement.[82] One set of rules now applies worldwide to all
commands and to all services.
Importantly, deliberative planning permitted the advanced
drafting of
various contingencies any one of which could be implemented within
hours. Gone were the days when the United
States
military drafted rules of engagement on the back of an envelope
in-flight to
the drop zone as reportedly was done in 1965 in the Dominican Republic
Crisis.
Of equal importance, “law” took its
appropriate place in the battle staff.
The Goldwater-Nichols invigoration of war fighting commands[83]
coincided
with these rules of engagement development to provide a climate for
further
integration of the Rule of Law.[84] Currently, senior combatant commanders have
active staff cells that draft mission-specific rules of engagement at
the same
time that war plans are being made for troops, logistics, and
operations. Control of force and
protecting lives of both
soldiers and non-combatants are the goals.
The focus on practical rules by the
American armed forces had considerable useful international human
rights
implications. Other countries copied the
practical training programs developed after My Lai.
Increased international awareness of human
rights problems accelerated not only the use of such rules, but also
the
blending of human rights concerns with traditional law of war training. In areas of human rights concern, the focus
naturally
and quickly turns to those who use force.
Development and utilization of practical rules have had a
profound
effect. For example, “disappearances”
dropped fifty percent in Peru when a Peruvian initiative, “Ten
Commandments of
Human Rights for Soldiers,” was adopted.[85] This Peruvian Army initiative came as a
result of a governmental program that encouraged foreign governments to
explore
such possibilities in the name of human rights.
Emphasis on a practical system of
useful rules reinforces the leadership position of the United States in
doing
what it seems to do well, using the pen to articulate workable rules
that
balance legal requirements with the demands of workable practicality. This effort equals and parallels the result
of our Civil War experience of the Lieber Code that provided an
extremely
comprehensive, humanely explicit and practically comprehensive document. This brilliant document with its
groundbreaking methodology went on to become a model for military law
reform
among the Great Powers and further to become a foundation for the Hague
and
Geneva Conventions.[86] The current progress in the development of
practical useful battlefield rules reinforces our proud military legal
heritage.
C.
COMMUNICATION BETWEEN THE MILITARY, THE PUBLIC, AND THE
GOVERNMENT.
The necessity of communication is
one of the most important lessons learned from My Lai and from the
Vietnam
War. The combination of three important
principles of the German Philosopher of War, Carl von Clausewitz,
underscores
this necessity. First, force should be
used only in pursuit of political objectives.
Mindless use of force is counter productive.
There must be a policy joinder of political
objective and military means. Second, an
enemy should be attacked at the weak point – the center of gravity. For the United States, that center of gravity
is maintaining the delicate, democratically determined consensus to use
force. That important political
consensus is easily attacked by those who point to violations of the
Rule of
Law in the conduct of the war. The trend
to use “things legal” against a war effort clearly accelerated with
Vietnam and
is quite evident in the My Lai Incident, which became a legal anti-war
battle
cry. Third, effective defense and war
policy can only be formulated after an appropriate dialogue between and
among
the military, the people, and the government.
These three different groups represent varying points on a
triangle, all
of which must be fully heard. The
implementation of these principles is present in lessons to be learned
from My
Lai.[87]
After My Lai, a practical result of
these three Clausewitzian teaching points is the addition of a fourth
component
of military operations. Traditionally,
military operations consisted of planning, training and execution. To these three components, justification has
been added. This new element can be seen
in the increasingly detailed explanations used by Presidents when
military
action is undertaken and in the direct participation of military
officers in
“CNN-type” news coverage. Communication
is the hallmark of this trend.
Responsible command is the result.
Justifying, or being accountable for, the legitimacy (morally
and
legally) of military operations in the court of public opinion is the
objective.
Nothing could be more important than
a clearly articulated political objective.
Renewed emphasis on that articulation demonstratively began with
President Reagan’s address justifying the bombing of Libya for
terrorist acts
committed against United States’ service personnel in Germany.[88] Its most recent culmination came in the
speech of President Clinton before the expected use of force against
Iraq to
support the United Nations inspection regime.[89] This address is noteworthy for its systematic
discussion of previously unreported factual evidence and demonstrates
the
manner in which the Government collects, articulates, and releases such
information to justify its actions morally and legally.
Most significantly, internally, a
presidential justification for the use of force, contained in the War
Powers
Notification Letter to Congress, requires the Government to state
clearly the
“mission.”[90] That paragraph quickly becomes an essential
document for appropriate war fighting planning.
It is often the first complete and comprehensive articulation of
the
precise task that the military is expected to execute.
This mission paragraph is invaluable for the
mental discipline required to gain consensus and to articulate for the
public
record the goal of the Government.
Justification by commanders of a
military operation is the hallmark of responsible command.
What is done, why, how, and at what cost is a
vital part of appropriate dialogue between and among the military, the
government, and the people. Such direct
military justification has been made possible by technology but
necessitated by
the lack of competent news reporting.
Reporters without necessary education or background are
incapable of
reporting what they do not know or understand.
Misinformation articulated by novices can be devastating.
Communication is thus essential in
the use of force in a democracy.
Justifying conduct in the court of public opinion, explaining
the cost
of military options in lives and treasure, and explaining the nuances
of battlefield
behavior are all necessary to keep the political consensus to use force. Since the attack on that consensus
increasingly involves Rule of Law questions, the lessons learned from
My Lai
have increased importance.
What is the purpose of examining
past events? Is not the whole purpose of
history to learn from the past to prevent repeating it in the future? One of the most important prosecutorial
functions is prevention of similar misconduct.
Indeed, the amazing “saga” of My Lai is the willingness of the
United
States to discuss this institution-staining tragedy and to “use” it to
insure
professional conduct on the battlefield.
The history of the event itself and the problem it represents
are critical
to the “ending” of this American Tragedy.
A. THE EVENT ITSELF.
The answer to the question, “What
should we remember about My Lai?” came with an institutional
thunderbolt on
March 6, 1998, at the Vietnam Memorial in Washington, D.C., as the
Thirtieth
Anniversary of this tragedy approached.
On that date, the United States Government presented the
Soldier’s Medal
(the highest award for bravery not involving conflict with the enemy)
to Hugh
Thompson and to his door gunner assistants, Larry Colburn and Glenn
Andreotta
(posthumously). These three individuals
did precisely what soldiers should do: when something goes wrong on the
battlefield, they intervened to correct it and they reported it.
The Washington Post headline says it
all: “30 Years Later, Heroes Emerge from Shame of My Lai Massacre.”[91] A military medal normally is not presented at
a national monument with the Army Band playing, is not attended by
dozens of
foreign journalists, is not reported in national newspapers with
photographs
and citations, and is not attended by the Army Chief of Staff and
Members of
Congress. Yet, thirty years after this
tragic incident, the Government publicly and permanently acknowledged
what
transpired and took steps to insure that in remembering and in teaching
this
tragedy, the appropriate conduct exemplified by Hugh Thompson and his
crew
would become an essential lesson.
Although Lieutenant William Calley’s actions will always be
remembered
with horror, shame, and revulsion, the selfless, professional actions
of Hugh
Thompson and his assistants should not only be remembered, but emulated.
The tone and purpose of this
ceremony began with an invocation, prominently reported by The New York
Times:
“We stand in honor of their heroism, and we have taken too long to
recognize
them. Remembering a dark point in time,
we are now a richer nation as their personal heroic service is woven
into the
fabric of our history.”[92] Nothing could be more important than to honor
the moral courage represented by Hugh Thompson.
He is the Sir Thomas More of our current military.
Life-risking action to perform the basic duty
of a soldier, protecting the defenseless, coupled with the moral
courage to
report and to testify mark him as someone to emulate.
My personal admiration knows no bounds for
the additional moral courage that is not
reflected in the citation. Hugh
Thompson, over the course of some two years during the My Lai hearings,
told
the truth despite peer pressure, ostracism, threats of prosecution, and
a
nationally televised congressional brow-beating. All
of these acts were an attempt to prevent
him from testifying or to punish him for doing so.
The most fitting official end of the
My Lai “saga” is the approved Governmental wording in the citation for
the
Soldier’s Medal awarded to Hugh Thompson.
This is the My Lai of history:
For heroism above
and beyond the call of duty on 16 March 1968, while saving the lives of
at
least 10 Vietnamese civilians during the unlawful massacre of
noncombatants by
American forces at My Lai, Quang Ngai province, South Vietnam. Warrant Officer Thompson landed his
helicopter in the line of fire between fleeing Vietnamese civilians and
pursuing American ground troops to prevent their murder.
He then personally confronted the leader of
the American ground troops and was prepared to open fire on those
American
troops should they fire upon the civilians.
Warrant Officer Thompson, at the risk of his own personal
safety, went
forward of the American lines and coaxed the Vietnamese civilians out
of the
bunker to enable their evacuation. Leaving
the area after requesting and overseeing the civilians’ air evacuation,
his
crew spotted movement in a ditch filled with bodies south of My Lai
Four. Warrant Officer Thompson again
landed his
helicopter and covered his crew as they retrieved a wounded child from
the pile
of bodies. He then flew the child to the
safety of a hospital at Quang Ngai.
Warrant Officer Thompson’s relayed radio reports of the massacre
and
subsequent report to his section leader and commander resulted in an
order for
the cease-fire at My Lai and an end to the killing of innocent
civilians. Warrant Officer Thompson’s
heroism
exemplified the highest standards of personal courage and ethical
conduct,
reflecting distinct credit on him and the United States Army.[93]
Most importantly, the Army, the very
institution shamed by My Lai, has explicitly and prominently heralded
Hugh
Thompson’s battlefield example in its all important leadership guide. The Army’s Field Manual notes that “[i]n
combat
physical and moral courage may blend together.
The right thing to do may not only be unpopular, but dangerous
as
well. Situations of that sort reveal
who’s a leader of character and who’s not.”[94]
Prominently displayed across the whole printed page is the Hugh
Thompson
Example.[95]
Thus, a prosecutor’s duty is
concluded. The Government investigated
and did not cover-up. The Government
publicly condemned the atrocity and persistently prosecuted despite
unprecedented odds. The Government
focused on this horrible lesson and, in the corrective actions that
followed,
significantly advanced the Law of War.
The Government, assisted by the passage of time, formally and
publicly
admitted the tragic events and publicized for future instruction and
emulation
the heroic selfless action of an intervenor. The
prosecution lesson for the future is
clear. ACT LIKE HUGH THOMPSON.