© 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.
B. THE PROBLEM.
Our world seems to have entered an
era of internal conflicts. Humanitarian
intervention has moved from an obscure idea to the dominant topic of
discussion.[96] Old, long-established concepts of sovereignty
are being eroded. Attempts to enforce
the Law of War and even to establish an International Criminal Court[97]
seem to
indicate a return to international legal idealism and an attempt to use
international law to “control” the use of force reminiscent of the
international thinking between 1890 and 1940.[98] We are in an age of peace keeping, peace
enforcing, and peace making in which militaries are more “police-like”
and have
more complicated political objectives.
Professional conduct during military operations and rules of
engagement
are even more important.
Current realities require continued
focus on the lessons of My Lai. There
has never been a greater need for training to produce competent
soldiers who
can perform in a more complex operational environment with the
increased
demands of modern technology. The
consequences of operational ill-discipline become starker.
The need for practical rules of engagement
are even more necessary as the new era produces greater difficulty in
defining,
both domestically and internationally, clearly agreed upon political
objectives
for the use of force.
The lessons of My Lai are further
highlighted with the fall of the Berlin Wall.
That historic event, of course, is a symbol of the increase in
free
market economies, of the movement toward democracy, and of the general
integration of former communist countries into the West.
No one seeks that integration more than
autocratic militarized former communist regimes. Former
communist military leaders look to the
West as a model to emulate. They seek to
adopt and to utilize military doctrine.
Yet military doctrine, for the United States specifically and
for the
West in general, has three essential components: (1) civilian control;
(2)
respect for the Rule of Law – including the Law of War; and (3) respect
for the
rights of individual soldiers. It has
been especially surprising to me that military doctrine would be one of
the
“keys” to effective democratization.[99] In such changing times, nothing is more
important to the professional use of force and to human rights than the
lessons
learned from My Lai.
[1]
William George
Eckhardt, Clinical Professor of Law and Director of Urban Affairs
Outreach,
University of Missouri-Kansas City School of Law. B.A.
1963, University of Mississippi; LL.B.
1966, University of Virginia School of Law; LL.M. Equivalent, The Judge
Advocate General’s School; Diploma 1978, United States Army Command and
General
Staff College; Diploma 1982, United States Army War College. Retired Colonel, Army Judge Advocate
General’s Corps. Provided legal advice,
litigated in federal and military courts, and taught military law for
thirty
years. Served as a Prosecutor and as a
Defense Counsel in Vietnam. Chief
Prosecutor, My Lai Cases. Legal Adviser,
United States European Command. Director
of National Security Legal Issues and Legal Adviser, United States Army
War
College. Awarded The Federal Bar
Association’s Younger Federal Lawyer Award “For distinguished service
as a member
of the Judge Advocate General’s Corps, U.S.A., particularly in his
capacity as
chief trial counsel and Government representative in the My Lai
court-martial
cases; for discharge of his duties with ability, vigor and dedication
consistent with the highest ideals of the legal profession.”
A
reflective, evaluative essay such as this is formulated over time and
is built in defined stages. Early
thoughts were first gathered in the mid-1970s for a presentation to the
Yale
Club of Northern California in San Francisco.
Some ten years later these early ideas produced a “work horse”
teaching
article ‑ a war college paper and a law review article.
My Lai is both an event and a problem. One
cannot discuss the problem of
professional conduct on the battlefield without also discussing the
tragic
events of My Lai. Putting ideas into
perspective came the “old fashioned way” ‑ teaching and working with
bright
students on the legal and ethical bases for the profession of arms. Ideas are challenged, shaped, and put in
perspective. Repeated presentations give
one confidence. Rarely does one have the
privilege of putting academic ideas into practice as a legal advisor to
a
senior combat commander in wartime.
Perspective, once again, was possible in a legal academic
setting with
the passage of time and with an opportunity such as this.
This essay is an effort to record in a short,
readable, non-technical style the “history” ‑ from my point of view ‑
of the My
Lai Tragedy.
[2]
Essence of
introductory remarks given by Belgium Host prior to a presentation
entitled
“Difficulties in Prosecuting Battlefield Offenses: My Lai Example”
during a
Congress of the International Society for Military Law and The Law of
War in
Brussels, Belgium on May 31, 1991.
[3]
Order of the First
Armored Division Commander, then Major General Ronald Griffith, to his
assembled Brigade Commanders just prior to battle in the Gulf War. Reported by his Staff Judge Advocate, then
Lieutenant Colonel John D. Altenburg, Jr.
[4] See discussion infra Part I, What
Happened?
[5] See discussion infra Part II, Unique
Significant Problems.
[6] See discussion infra Part III, Lessons
Learned.
[7] See discussion infra Part IV, The
Future: Remembering My Lai.
[8]
Professor Douglas
Pike, Director of Indochina Studies at the University of
California-Berkeley,
has noted that the Vietnam War is “a prison of competing perceptions”
with
total lack of historic agreement. His
articulation of these competing perceptions regarding the Rule of Law
during
that conflict is helpful in an analysis of the ideological division in
our
country regarding My Lai. Professor Pike
writes:
One
main perception is
“unspeakable horror.” It holds the
Vietnam War was the most horrible, brutal, atrocity-ridden war in
recent
history. It was primitive savagery
augmented by modern technology. War
criminality, by the Americans and South Vietnamese, was commonplace. My Lai was the rule not the exception. Nor were the communists without blame,
witness the Hue massacre or the systemic assassination of village
leaders which
amounted to genocide. Suffering was
universal and inflicted on far more innocents than in previous wars.
[The]
[s]econd major
perception is: “War is War.” This thesis
argues that while a humane war is a contradiction of terms (even
oxymoronic),
the Vietnam War (certainly as far as the Americans were concerned) was
more
carefully conducted than any earlier war.
Rules of engagement and other restrictions on military actions
were
enforced for the first time really in any war.
Atrocities were less common, only better known.
The communists, for their part, were not
deliberately bloody handed. Much of
their brutality stemmed from the kind of a war they conducted: a
people’s war
in which people are both chief target and primary weapon.
The Americans would have preferred war out
and away from the population’s center (in outer space even) but the
communists
forced a war over and around the people.
This was the war nightly viewed on American television and left
the
impression it was more brutal than other wars.
Douglas
Pike, Case Studies in Non-Compliance: The Scope
of the Problem (Vietnam War), Prepared
Remarks on Panel at the Conference on Deterring Humanitarian Law
Violations 3-4
(Nov. 4-5, 1994) (on file with author).
[9] See discussion infra Part III, Lessons
Learned.
[10]
Numerous articles
appeared daily in most major newspapers.
Rarely was the immediate and the sensational penetrated. As might be expected, the best reporting came
from established, respected newspapers with experienced, knowledgeable
correspondents ‑ The New York Times’s Homer Bigart, see,
e.g., Homer Bigart, Prosecution
Says That Medina ‘Chose Not to Intervene a [sic] Mylai
[sic], N.Y. Times,
Aug. 17, 1971, at ‑ , and The Los
Angeles Times’s Kenneth Reich, see, e.g.,
Kenneth Reich, My Lai ‑ Was Justice
Carried Out?, L.A. Times,
Jan
1, 1972, at A1. Indeed, to preserve
contemporary history, the Medina Prosecutors gave an extensive
interview with
Kenneth Reich. Kenneth Reich, Charges
Valid, They Insist: Medina
Prosecutors Shrug Off Criticism and Defend Tactics, L.A. Times, Sept. 26, 1971 at
A1.
[11] See, e.g., Seymour
M. Hersh, My Lai 4: A Report on the Massacre and Its
Aftermath (1970); Richard
Hammer,
One Morning in the War: The Tragedy at Son My (1970). Statements by witnesses to journalists and
authors were often at great variance with statements given to
prosecutorial
officials and under oath at trial. See generally
Facing My Lai: Moving Beyond the Massacre (David L.
Anderson ed. 1998). This book is a
record of a conference held at Tulane University in December of 1994. It is an excellent example of value of
academia bringing together conflicting ideas.
Its contents are as diverse as the political feelings at the
time of the
My Lai trials. Importantly, this was one
of the first opportunities for the Government’s story to be heard. Significantly, I believe, as a result of this
book and conference, National Public Radio discussed Hugh Thompson’s
heroic
actions and not Lieutenant William Calley’s crimes on the succeeding My
Lai
Anniversaries.
[12]
William R. Peers, Report of the Department of the Army
Review
of the Preliminary Investigations into the My Lai Incident (Dept.
of Army
1970). See also William R.
Peers, The
My Lai Inquiry (1979); Stanley R.
Resor (Secretary of the Army), Official
U.S. Report on My Lai Investigation, U.S.
News & World Rep., Dec. 8, 1969, at 78-79.
[13] Investigation of the My Lai Incident:
Hearings Before the Armed Services Investigating Subcomm. of the House
Comm. on
Armed Services, 91st Cong., 2d Sess., Under Authority of
H.R. Res. 105. (H.A.S.C. 94-47).
[14] Each
subject of
investigation would have a Criminal Investigation Command (Police)
report. For example, the report of Captain
Ernest
Medina: CID Report (1st M P Detachment (CI), USACIDA, DA, Washington,
D.C.
20315) Medina Ernest Lou, 10 Sep 1970, Report No. 70-CID011-00013.
[15] The
Clerk of
Court, U.S. Army Judiciary, is the custodian of Army Courts-Martial
records of
trial dating back to 1939. Requests for
these records or questions concerning Army Courts-Martial should be
addressed
to Clerk of Court (currently Joseph A. Neurauter), U.S. Army Judiciary,
901
North Stuart Street, Suite 1200, Arlington, VA 22203.
The telephone number is 703-588-7908; the facsimile
(FAX) number is 703-696-8777.
[16]
Perhaps the most
authoritative statement of facts comes from the official Government
citation
awarding the Soldier’s Medal to Hugh Thompson.
See text infra Part IV, The
Future: Remembering My Lai.
[17] See generally Jeffrey F. Addicott &
William A. Hudson, Jr., The Twenty-Fifth
Anniversary of My Lai: A Time to Inculcate the Lessons, 139 Mil. L. Rev. 153, 156-59
(1993); William
G. Eckhardt, Command Criminal
Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1, 12-14 (1982).
[18] See text infra Part II, Unique
Significant Problems: The “Order.”
[19]
Polygraph
Examination Report, Subject: Medina, Ernest Lou, 25 November 1970, Case
Control
No. 70-CID011-00013, Robert A. Brisentine, Jr., Examiner, Criminal
Records
Branch, U.S. Army Investigative Records Repository, Fort Holabird,
Maryland
21219, Statement of Robert A. Brisentine, Jr., p.4, ¶ ss.
[20] See infra
note 93 and accompanying text.
[21] See Polygraph Examination Report, supra
note 19, at ¶ uu.
[22] See William R. Peers, Report of the
Department of the Army Review
of the Preliminary Investigations into the My Lai Incident, Vol. 1,
p.
1-7. This letter is a model citizen’s
complaint. Governmental officials read
their mail and listen to “hot lines” to receive leads such as this.
[23] See Hersh,
supra note 11.
[24] The Massacre at Mylai [sic], Life, Dec. 5, 1969, at 36-45.
[25] My Lai: An American Tragedy, Time, Dec. 5, 1969, at 23-34. See
also Judge Bars Civil Trial For
Calley, Atlanta J.,
Sept. 26,
1970, at 20-B.
[26] See Calley v. Callaway, 382 F. Supp.
650, 661-62 (M.D. Ga. 1974).
[27] See text infra Part II, Unique
Significant Problems: Interference with the
Trial Process.
[28] See Memorandum from Robert E. Jordan,
III (Army General Counsel) to the Assistant Attorney General (Office of
Legal
Counsel) (citing Hearings on the Geneva
Conventions for the Protection of War Victims Before the Senate Comm.
on
Foreign Relations, 84th Cong., 1st Sess. 24-29, 58-59) (regarding
“Trial of
Discharged Servicemen for Violation of the Law of War) (on file with
author).
[29] “The
procedure,
including modes of proof, in cases before courts-martial, courts of
inquiry,
military commissions, and other military tribunals may be prescribed by
the
President by regulations which shall, so far as he deems practicable,
apply the
principles of law and the rules of evidence generally recognized in the
trial
of criminal cases in the United States district courts, but which shall
not be
contrary to or inconsistent with this code.”
10 U.S.C. § 836(a) (1994).
[30] See generally Waldemar A. Solf, A Response
to Telford Taylor’s Nuremberg and
Vietnam: An American Tragedy, 5 Akron
L. Rev. 43, 48-54 (1972).
[31] See Jeffrey F. Addicott & William A.
Hudson, Jr., The Twenty-Fifth Anniversary
of My Lai: A Time to Inculcate the Lessons, 139 Mil. L. Rev. 153, 160-62
(1993) (accompanying footnotes
provide the names of those charged). See also Guenter
Lewy, America in Vietnam 362 (1978).
[32] See Polygraph Examination Report, supra
note 19, at 4b.
[33] See id.
[34] See Homer Bigart, Medina Said to Have Felt
He Lost Control of Troops, N.Y.
Times, Aug. 28, 1971; Ken Boswell, Lost Control of
His Men, Medina Says in
‘Truth Test,’ Atlanta J.,
Aug.
28, 1971, at A1; Ken Boswell, Polygraph
Expert Tells Medina Story, Atlanta
J.,
Sept. 9, 1971, at A1.
[35] In a
contemporaneous atrocity that occurred within sixty days of My Lai, the
North
Vietnamese entered Hue with lists of individuals to be arrested. See Guenter Lewy, American in Vietnam
274-75
(1978). Some six thousand Vietnamese
were systematically arrested and killed in this operation.
See id.
[36] The
Battalion
Commander, Lieutenant Colonel Frank A. Barker, was killed in action
prior to
the public disclosure of the My Lai Incident.
[37] The
law provided
that: “The conclusions based upon or graphically represented by a
polygraph
test and the conclusions based upon, and the statements of the person
interviewed made during, a drug-induced or hypnosis-induced interview
are
inadmissible in evidence in a trial by court-martial.” Manual
for Courts-Martial
(rev. ed. 1969), ¶142e
[38] See Polygraph Examination Report, supra
note 19 at 4a, 4b.
[39] See infra
text Part II(D)(1): Troublesome Legal Standards: Command Criminal
Responsibility.
[40] See Memorandum from Robert E. Jordan,
III (Army General Counsel) to the Assistant Attorney General (Office of
Legal
Counsel) (regarding “Trial of Discharged Servicemen for Violation of
the Law of
War) (on file with author); see also U.S.
Plans No Prosecution Of My Lai GIs Now
Civilians, Atlanta
Constitution,
Apr. 9, 1971, at A1.
The
Defense and Justice
departments [sic] have abandoned a search for ways to prosecute 15
former
servicemen linked by Army investigators to the My Lai massacre . . . .” It has turned out to be, as a practical
matter, an insoluble problem at this time,” . . . Charges
have never been brought against any
of the 15 because they already had returned to civilian life . . . . Justice and the Pentagon were stymied in
their 18-month effort to find some way of bringing discharged
servicemen to
trial for Vietnam atrocities primarily because of questions of legal
jurisdiction. The Uniform Code of Military Justice applies only to
uniformed
personnel, and the Supreme Court has ruled that a man cannot be
court-martialed
once he has been discharged from the armed forces.
There are no federal laws that would permit
trial of such offenses in civilian courts.
See
generally
Waldemar A. Solf, War Crimes and the Nuremberg Principle
(Comment: On the Need for U.S. Implementing Legislation), in Nat’l
Security Law 359, 407-08 (John Norton Moore et al. eds., 1990).
[41] See Jordan, supra note 40, at 7-8
(“Hearings on the Geneva Conventions for the
Protection of War Victims Before the Senate Committee on Foreign
Relations,
84th Cong., 1st Sess. 24-29, 58-59 (1955).”).
[42] See Solf, supra note 40, at 407 n. 200.
[43] “To
define and
punish Piracies and Felonies committed on the high Seas, and Offences
against
the Law of Nations.” U.S. CONST.
art. I, § 8, cl.
10.
[44] A
military
commission was used for violation of the law of war in the wartime
prosecution
in the United States of German saboteurs despite the claim of one of
the
defendants to be an American citizen. See Ex parte Quirin, 317 U.S. 1 (1942).
[45] See Ex
parte Milligan, 71 U.S. 2 (1866) (holding that, when civilian
courts are
open and functioning, martial law cannot be applied to deprive citizens
of the
right to trial by jury in a civilian forum).
[46] See Korematsu v. Unites States, 323 U.S.
214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).
[47] See generally Jordan J. Paust, After My Lai:
The Case for War Crime
Jurisdiction Over Civilians in Federal District Courts, 50 Tex. L. Rev. 6 (1971).
[48] See War Crimes Act of 1996, 18 U.S.C.A.
§ 2441 (West Supp. 1999).
War
Crimes.
(a)
Offense. ‑ Whoever, whether inside or outside the
United States, commits a war crime, . . .
shall be fined under this title or imprisoned for life or any
term of
years, or both, and if death results to the victim, shall also be
subject to
the penalty of death.
(b)
Circumstances. -- The circumstances . . . are that
the person committing such breach or the victim of such war crime is a
member
of the Armed Forces of the United States or a national of the United
States . .
. .
Id.
[49] In
an editorial
preceding the excerpt of Captain Aubrey M. Daniel’s (the Prosecutor in
the Calley case) letter to President Nixon,
Life magazine commented:
The
furor over the Calley
verdict was in its way almost as appalling as Mylai [sic] itself, and
President
Nixon’s intervention did not improve matters.
As
Telford Taylor
wrote in LIFE last week, the verdict was harsh, but acquittal would
have been a
disaster: here was a responsible officer, not even in the position of
being
fired upon, who callously mowed down women and children.
The sympathy that welled up across the nation
was in large part grounded on the notion that Calley was, if not
singled out
(after all, MyLai [sic] is a low point, even in this cruel war, for
avoidable
cruelty), being made the scape goat.
Others above him were lightly rebuked, or charges against them
dismissed. Besides, wasn’t Calley, like
everyone else in the armed forces, fighting a ruthless enemy?
Such
feelings are
understandable, but sympathy did not stop here.
For some of the doves, Calley was merely a cog in a machine gone
mad;
everything about the war is wrong, and in the words of a distinguished
Washington clergyman: “Calley is all of us.
He is every single citizen in our graceless land.”
On that line of reasoning, responsibility is
everyone’s and therefore no one’s.
Perhaps
this kind
of masochism, this increasing feeling of national shame and revulsion
at the
war, helped generate that other excessive response in so many
Americans: the
sense that Lieutenant Calley was merely doing his duty, a wronged
patriot,
perhaps even a hero, for whom flags should be lowered and folk ballads
sung. George Wallace rushed to make him
an honorary lieutenant colonel in the Alabama National Guard. Not to be outdone, President Nixon freed
Calley from the stockade while his lawyers appealed his case and was
cheered
for it in Congress (several of the Democratic presidential aspirants in
the
Senate were not exactly profiles in courage either).
But
this was not to
be the President’s only intervention. In
San Clemente, the press was summoned to be told that whatever course
the
military appeals took, the President would personally review the case
finally
in a “nonlegal, nontechnical” fashion.
Since the President had such authority anyway, calling it to
everybody’s
attention seemed a presidential play to the political constituency
Nixon so
often cultivates, and earned an eloquent rebuke . . . from Captain
Aubrey M.
Daniel III, who prosecuted Calley. To
the officers who must conscientiously pass on Calley’s case on appeal,
the
implication was clear that if they didn’t mitigate the lieutenant’s
life
sentence, the President would. In a
President who as a lawyer so often speaks out for law and order, in a
Commander-in-Chief who should be concerned with the calm, orderly
processes of
the Uniform Code of Military Justice, Nixon’s action was reckless and
dismaying.
Excerpts
of the Daniel letter articulate the ramifications of such
intervention:
[How]
shocking it
is if so many people across this nation have failed to see the moral
issue
which was involved in the trial of Lieutenant Calley – that it is
unlawful for
an American soldier to summarily execute unarmed and unresisting men,
women,
children and babies.
But
how much more
appalling it is to see so many of the political leaders of the nation
who have
failed to see the moral issue or, having seen it, compromise it for
political
motive in the face of apparent public displeasure with the verdict . .
. . I have been particularly shocked and
dismayed
at your decision to intervene in these proceedings in the midst of the
public
clamor . . . .
Your
intervention
has, in my opinion, damaged the military judicial system and lessened
any
respect it may have gained as a result of the proceedings . . . .
For
this nation to
condone the acts of Lieutenant Calley is to make us no better than our
enemies
and make any pleas by this nation for the humane treatment of our own
prisoners
meaningless.
Editorial,
Lieutenant Calley and
the President, Life,
Apr. 16,
1971, at 40. See also Calley Prosecutor
Rips Intervention by Nixon, Atlanta
Constitution, Apr. 7, 1971, at A1.
[50] The
lengthy and
tortured collateral attack process is well articulated by Circuit Judge
Ainsworth in Calley v. Callaway, 519
F.2d 184, 190-91 (5th Cir. 1975), cert.
denied sub nom. Calley v. Huffman, 425 U.S. 911 (1976):
On
February 11, 1974,
Calley filed a petition for a writ of habeas corpus in the United
States
District Court for the Middle District of Georgia against the Secretary
of the
Army and the Commanding General, Fort Benning, Georgia.
At that time, the district court enjoined
respondents from changing the place of Calley’s custody or increasing
the
conditions of his confinement. On
February 27, 1974, the district court ordered that Calley be released
on bail
pending his habeas corpus application.
On June 13, 1974, this Court reversed the district court’s
orders,
returning Calley to the Army’s custody. Calley v. Callaway, 5 Cir., 1974, 496
F.2d 701. On September 25, 1974,
District Judge Elliott granted Calley’s petition for a writ of habeas
corpus
and ordered his immediate release. The
Army appealed and Calley cross-appealed.
At the Army’s request a single judge of this Court granted a
temporary
stay of the district judge’s order of immediate release.
This Court subsequently met en banc, upheld the
release of Calley
pending appeal, and ordered en banc
consideration of the case. We reverse the district court’s order
granting a
writ of habeas corpus and reinstate the judgment of the court-martial.
519
F.2d at 190-91 (internal citation omitted).
[51]
Secretary of the
Army Stanley R. Resor led a vigorous protest.
Secretary Resor’s and other similar protests are documented in Trent Angers, The Forgotten Hero of My Lai: The
Hugh Thompson Story 155-76
(Acadian House 1999). Secretary Resor
anticipated the Committee’s plan and clearly warned of its consequences:
While
it may theoretically
be possible for the Committee to interview such witnesses without
prejudicing
prosecutions, there are a number of potential pitfalls in such a course
of
action. Is the Committee prepared to
make available, if the military judge or other appropriate court so
requires,
complete transcripts of the testimony of witnesses which appear before
it? In applying the so-called Jencks Act,
18
U.S.C. § 3500, and provisions of the Uniform Code of Military
Justice and Manual
for Courts-Martial relating to discovery, it is possible that such an
order
will be issued. Statements will
undoubtedly have to be produced if the conclusion is reached that
statements to
the Committee or to the Committee staff constitute statements to “an
agent of
the Government” within the meaning of 18 U.S.C. § 3500(e)(2). Unless the cooperation of the Committee on
this point is assured, a mistrial could result.
Letter
from Stanley R. Resor, Secretary of the Army, to Honorable F.
Edward Hebert, Chairman, Special Subcommittee - My Lai, Committee on
Armed
Services 3 (Jan. 6, 1970) (copy on file with author).
As matters developed,
many members of Congress became appalled. Eighteen members of Congress
wrote to
Mr. Hebert “urg[ing] that your Committee release the transcript from
the
hearings on the Mylai (sic) incident.”
These congressmen stated:
It
would be grossly
harmful not only to these defendants . . . their army careers and
reputations,
but to the honor of the United States, if the public believed that a
Congressional Committee was intentionally withholding evidence so as to
whitewash an alleged horrible violation of the rules of law which
govern even
in war. The defendants were and are
entitled to a presumption of innocence; the public is entitled to a
full
disclosure of the facts.
Letter
from Donald M. Fraser, Jonathan B. Bingham, Shirley Chisholm,
Phillip Burton, Benjamin S. Rosenthal, Michael Harrington, Charles C.
Diggs,
Jr., Edward I. Koch, Frank J. Brasco, Allard K. Lowenstein, Richard L.
Ottinger, John Conyers, Jr., William F. Ryan, James H. Scheuer, Don
Edwards,
Louis Stokes, George Brown, and Thomas L. Ashley, members of Congress,
to
Honorable R. Edward Hebert, Chairman, House Armed Services Committee,
Subcommittee #2, at 1 (Nov. 24, 1970) (copy on file with author).
A
more scholarly letter by Congressman (later Professor, Federal Court
of Appeals Chief Judge, and Counsel to the President) Abner J. Mikva
followed. His three and one-half page
legal letter concluded:
my
review of the relevant
cases and statutory provisions leave me more convinced than before that
the
Committee’s decision to withhold from a defendant put to trial by the
United
States evidence which may be necessary to his defense and
simultaneously deny
to the prosecution testimony of important witnesses is a decision that
can
reflect credit on neither the Committee nor the Congress.
It must seem a sorry spectacle to the
citizens of this nation to see the foremost lawmaking body in the land
obstructing administration of the very laws it writes.
Letter
from Abner J. Mikva, member of Congress, to Honorable L. Mendel
Rivers, Chairman, Committee on Armed Services 4 (Dec. 7, 1970) (copy on
file
with author).
[52] 18
U.S.C. § 3500
et seq. (1994).
[53]
United States v.
Nixon, 418 U.S. 683 (1974). This
historic case involved a clash between the Executive and the Judiciary
over a
subpoena duces tecum by the Watergate
Special Prosecutor for tapes and documents relating to Presidential
meetings
and conversations. See
generally id.
[54] See William Greider, Ruling Stuns My Lai
Case, Atlanta J.,
Oct. 16, 1970, at 8-B.
The
Army’s prosecution of
17 officers and enlisted men in the alleged massacre at My Lai was
damaged,
perhaps substantially, Thursday when the House Armed Services Committee
refused
to release its own examination of government witnesses in the cases.
A
military judge stunned
the Army’s prosecutor in the first My Lai trial as he ruled Thursday
that four
prosecution witnesses will not be permitted to testify against Staff
Sgt. David
M. Mitchell unless the House committee in Washington agrees to make
available
to defense lawyers transcripts of their questioning of these witnesses
. . .
. Potentially, if that ruling serves as
a precedent for the other My Lai cases, it could eliminate dozens of
witnesses,
all of whom were called before the special house investigating
subcommittee
that held private hearings on My Lai earlier this year.
Id.; see
also Tom Linthicum, Seen Protecting
Top Brass: My Lai Trial Ruling Is Hit, Atlanta
Constitution, Oct. 22, 1970, at A ?.
[55] See Calley v. Callaway, 519 F.2d 184
(5th Cir. 1975). The majority, after
discussing the procedural history of the problem, found that the
withholding of
testimony by the Congress was not a violation of due process or of the
Jencks
Act. Id.
at 219-20. The dissent, written by
Circuit Judge Griffin Bell, states:
This
brings us to the
issue, the resolution of which, in our judgement, requires a new trial
or
further proceedings in the district court. This issue involves the
conduct of a
Committee of the Congress, conduct which in the hindsight of United States v. Nixon (1974, 418 U.S.
683, 94 S.Ct. 3090, 41 L.Ed.2d 1039.), if not theretofore, appears
cavalier if
not arbitrary. Whichever, it constituted
a denial to Lt. Calley of due process by the Congress, and thereby the
government.
Id. at
229.
[56] For
a discussion
of Command Criminal Responsibility, see generally Solf, supra
note 40 at 387-90; William Hays Parks, Command
Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973).
The Parks “mini-book” appears, at first glance, to be long and
technical. Yet, my lawyer and non-lawyer
students have consistently rated it as the
most important writing they have read on command responsibility. It is a “classic.”
[57] “The
congress
shall have Power . . . To make rules for the Government and Regulation
of the
land and naval Forces.” U.S. CONST.
art. I, § 8, cl.
14.
[58]
Uniform Code of
Military Justice, 10 U.S.C. § 877 (1994).
It provides:
Any
person
punishable under this chapter who ‑
(1)
commits an
offense punishable by this chapter, or aids, abets, counsels, commands,
or
procures its commission; or
(2)
causes an act
to be done which if directly performed by him would be punishable by
this
chapter;
is
a principal.
Id.
[59] U.S. Dep’t of Army, Field Manual,
27-10, The
Law of Land Warfare 178 (1956).
This is an unusual military manual.
It is far more authoritative than other military publications. Its stated purpose:
is
to provide
authoritative guidance to military personnel on the customary and
treaty law
applicable to the conduct of warfare on land . . . . .
This Manual is an official publication of the
United States Army. However, those
provisions of the Manual which are neither statutes nor the text of
treaties to
which the United States is a party should not be considered binding
upon courts
and tribunals applying the law of war.
However, such provisions are of evidentiary value insofar as
they bear
upon questions of custom and practice.
Id. at
3.
[60] 10 U.S.C. § 877.
[61]
Judge Kenneth A.
Howard, after reviewing the facts presented by both the Prosecution and
the
Defense, see William G. Eckhardt, Command
Criminal Responsibility: A Plea for
a Workable Standard, App. B, 97 Mil.
L. Rev. 1, 32-34 (1982), instructed the Medina jury as follows:
In
relation to the
question pertaining to the supervisory responsibility of a Company
Commander, I
advise you that as a general principle of military law and custom a
military
superior in command is responsible for and required, in the performance
of his
command duties, to make certain the proper performance by his
subordinates of
their duties as assigned by him. In
other words, after taking action or issuing an order, a commander must
remain
alert and make timely adjustments as required by a changing situation. Furthermore, a commander is also responsible
if he has actual knowledge that troops or other persons subject to his
control
are in the process of committing or are about to commit a war crime and
he
wrongfully fails to take the necessary and reasonable steps to insure
compliance with the law of war. You will
observe that these legal requirements placed upon a commander require
actual
knowledge plus a wrongful failure to act.
Thus mere presence at the scene without knowledge will not
suffice. That is, the
commander-subordinate
relationship alone will not allow an inference of knowledge. While it is not necessary that a commander
actually see an atrocity being committed, it is essential that he know
that his
subordinates are in the process of committing atrocities or are about
to commit
atrocities.
Kenneth
A. Howard, Command
Responsibility for War Crimes, 21 J.
Pub. L. 7, 10-11 (1972).
[62] See Kenneth A. Howard, Command
Responsibility for War Crimes,
21 J. Pub. L. 7 (1972);
William G.
Eckhardt, Command Criminal
Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1 (1982);
Roger S. Clark, Medina: An Essay
on the Principles of Criminal Liability for Homicide, 5 Rut.-Cam. L. J. 59 (1973); see also
Guenter Lewy, America In Vietnam
359-62 (1978).
[63]
Telford Taylor, The Course of Military Justice, N.Y. Times, Feb. 2, 1972, at
39. Telford Taylor, as a Nuremberg
Prosecutor,
unsuccessfully argued for a theory of strict liability for commanders. He renewed his unsuccessful and unaccepted
strict liability argument, representing it as the legally accepted and
appropriate standard to be applied, in his public comments regarding My
Lai and
the Vietnam War. See
William H. Parks, Command
Responsibility for War Crimes, 62 Mil.
L. Rev. 1, n.2 (1973). See
generally Waldemar A. Solf, A
Response to Telford Taylor’s Nuremberg and Vietnam: An American Tragedy,
5 Akron L. Rev. 43
(1972). Such careless (at a minimum)
articulation of
acceptable legal standards unnecessarily increased the Government’s
difficulties in the court of public opinion.
[64] The
United States
Government’s analysis records that many delegates argued that the
“should have
known test” “was too broad and would subject the commander to arbitrary
after-the-fact judgments concerning what he should have known.” See Col.
William G. Eckhardt, Command Criminal
Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1, 17 n.33
(1982) (citing Memorandum from H.
Hansell).
[65] The
relevant
paragraph of Article 86 of the proposed Protocols entitled “Failure to
act”
states:
The
fact that a breach of
the Conventions or of this Protocol was committed by a subordinate does
not
absolve his superiors from penal or disciplinary responsibility, as the
case
may be, if they knew, or had information which should have enabled them
to
conclude in the circumstances at the time, that he was committing or
was going
to commit such a breach and if they did not take all feasible measures
within
their power to prevent or repress the breach.
United
States Dep’t of Army,
Pamphlet No. 27-1-1, Protocols to the Geneva Conventions of 12 August
1949 65
(1979).
The
United States Government’s analysis of this paragraph concedes that
this proposed article is not as strong as the “should have known” test. It notes that this new standard is “more
narrow” and “requires some showing that specific information was
available to
the commander which would give him notice of the breach.”
See
Hansell, supra note 64.
Of
great concern, and further demonstrating the lack of international
consensus, is the intentional
inconsistency between the English text (“information which should have
enabled
them to conclude”) and the French text (“information enabling them to
conclude”). See W. Hays
Parks, A Few
Tools in the Prosecution of War Crimes, 149 Mil.
L. Rev. 73, 77 n.14 (1995).
[66]
Paragraph 3 of
Article 7, “Individual criminal responsibility,” reads as follows:
The
fact that any of the
acts referred to . . . was committed by a subordinate does not relieve
his
superior of criminal responsibility if he knew or had reason to know
that the
subordinate was about to commit such acts or had done so and the
superior
failed to take the necessary and reasonable measures to prevent such
acts or to
punish the perpetrators thereof.
Report
of the Secretary-General Pursuant to Paragraph 2
of Security Council Resolution 808, U.N. SCOR, U.N. Doc. S/25704 (1993)
reprinted in 32 I.L.M. 1159, 1175
(1993).
I
have been personally and authoritatively informed that this deviation
from the internationally recognized Protocol Standard was calculatingly
done to
ease the burden of proof for the prosecution.
[67] I
have officially
suggested to The Judge Advocate General that the explanation of Article
77 of
the Uniform Code of Military Justice – Principals, 10 U.S.C. §
877, include the
following language:
While
merely witnessing a
crime without intervention does not make a person a party to its
commission, if
he had a duty to interfere and his noninterference was designed by him
to
operate and did operate as an encouragement to or protection of the
perpetrator, he is a principal. Such a duty is often imposed by the
responsibilities of command or leadership. Thus, command or leadership
duty
coupled with calculated noninterference may lead to a breach of
supervisory
responsibility and may make a commander, leader or supervisor liable as
a
principal for the acts of his subordinates.
Military law and custom require that a military superior be
responsible
for and be required, in the performance of his duties, to make certain
the
proper performance by his subordinates of their duties.
After taking action or issuing an order, a
commander, leader or supervisor must remain alert and make timely
adjustments
as required by a changing situation. A
commander, leader, or supervisor is responsible as a principal for the
acts of
his subordinates if he has actual knowledge that troops or other
persons
subject to his control are in the process of committing or are about to
commit
criminal acts and he wrongfully fails to take necessary and reasonable
steps
available to him to stop such illegal acts.
Thus a commander, leader or supervisor must have actual
knowledge plus a
wrongful failure to act. Mere presence
at the scene without knowledge will not suffice. The
leader-subordinate relationship alone
will not allow an inference of knowledge.
While it is not necessary that a commander, leader or supervisor
actually see a criminal act being committed, it is essential that he
know that
his subordinates are in the process of committing criminal acts or are
about to
commit criminal acts. This required
knowledge on the part of a commander, leader or supervisor, like any
other
fact, may be proven by circumstantial evidence; that is by evidence of
facts or
circumstance from which it may be justifiably inferred that the
commander,
leader or supervisor had such knowledge.
[68] “Congress
shall make no law . . . abridging the freedom of speech or of the press
. . .
.” U.S. CONST.
amend. I.
[69] “In
all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial,
by an impartial jury of the State and district wherein the crime shall
have
been committed . . . .” U.S. CONST.
amend. VI.
[70]
Sheppard v.
Maxwell, 384 U.S. 333, 357-63 (1966).
[71] The
publicity
sections of the numerous judicial opinions in the Calley case are
instructive.
In
summary, the procedures
followed by the military judge in this case assured insofar as could be
done
the right to a fair trial by an impartial court-martial.
The military judge is to be commended for his
efforts. He employed nearly all of those measures outlined in Sheppard
v.
Maxwell . . . to abate the effect of publicity upon the fact finders. Judicial calm and dignity were maintained by
strict control of the court premises.
U.S. v. Calley, 46 C.M.R. 1131, 1145, 1142-48 (A.C.M.R. 1973).
U.S.
v. Calley, 48 C.M.R. 19, 22-23 (C.O.M.A. 1973).
Chief
Judge Elliott of the Middle District of Georgia overturned
Lieutenant Calley’s court-martial conviction for, among other reasons,
prejudicial pre-trial publicity. “The
traditional safeguards of continuance, voir
dire, change of venue and control of the release of information by
the
participants in a trial were ineffective in this case.”
Calley v. Callaway, 382 F. Supp. 650, 691,
(M.D. Ga. 1974).
The
Fifth Circuit’s resounding reversal of the factual findings of
Judge Elliott raise the question of whether the “politics of My Lai”
even
infected the federal judiciary:
The
district judge
concluded that Calley had been persecuted and pilloried by news media
so intent
on making prejudicial revelations about the incident that Calley’s
right to a
fair and unbiased hearing was impossible.
The Court’s review led it to conclude that the publicity was
clearly
improper, largely biased and undoubtedly prejudicial. (Footnote
omitted). The district judge concluded
that “it was not
humanly possible for the jurors not to be improperly influenced by
prior
exposure,” [and] that “[n]o person, however honest minded he might try
to be,
could avoid the lasting emotional impact” of some of the publicity, and
that,
with all the publicity given the incident, “it would be sheer fantasy
to
believe that the jurors did not see, hear and read [the publicity] or
that they
were not influenced by it.” 382 F. Supp.
at 685, 672, 686. These findings led the
court to hold the publicity inherently prejudicial to Calley’s Sixth
Amendment
rights. The court also found “isolatable
prejudice” in the fact that one court member stated during voir dire
that he
had seen Captain Medina on television at one time, and that Medina had
appeared
credible and straightforward. 382 F.
Supp. at 690. We hold that the trial
court’s findings of inherent and actual prejudice are erroneous, and
conclude
that pretrial publicity did not deprive Calley of a fair trial.
Calley
v. Callaway, 519 F.2d 184, 205, 203-13 (5th Cir.
1975).
[72] For
a discussion
of obedience to orders, see generally Solf, supra
note 40, at 391-98.
[73]
Judge Kennedy
instructed:
Summary
execution of
detainees or prisoners is forbidden by law . . . .
I therefore instruct you, as a matter of law,
that if unresisting human beings were killed at My Lai (4) while within
the
effective custody and control of our military forces, their deaths
cannot be
considered justified, and any order to kill such people would be, as a
matter
of law, an illegal order. Thus, if you
find that Lieutenant Calley received an order directing him to kill
unresisting
Vietnamese within his control or within the control of his troops, that
order
would be an illegal order.
United
States v. Calley, 48 C.M.R. 19 (C.O.M.A. 1973); see also
Donna Lorenz, Destruction Order to Hutto Illegal, Army
Judge Rules, Atlanta J.,
Jan.
13, 1971, at A1 (stating “Military Judge Col. Kenneth Howard, Wednesday
declared the order given to Sgt. Charles Hutto by his commanding
officer, Capt.
Ernest Meina [sic], ‘illegal as a matter of law.’”).
[74] In
the Calley
Court-martial, Judge Kennedy instructed:
A
determination that an
order is illegal does not, of itself, assign criminal responsibility to
the
person following the order for acts done in compliance with it.
Soldiers are
taught to follow orders, and special attention is given to obedience to
orders
on the battlefield. Military
effectiveness depends upon obedience to orders.
On the other hand, the obedience of a soldier is not the
obedience of an
automaton. A soldier, is a reasoning
agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in
assessing criminal responsibility for acts done in compliance with
illegal
orders.
The
acts of a subordinate
done in compliance with an unlawful order given him by his superior are
excused
and impose no criminal liability upon him unless the superior’s order
is one
which a man of ordinary sense and understanding would, under the
circumstances,
know to be unlawful, or if the order in question is actually known to
the
accused to be unlawful.”
United
States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R.
1973).
As
the Fifth Circuit stated:
The
military judge properly
instructed that an order to kill unresisting Vietnamese would be an
illegal
order, and that if Calley knew the order was illegal or should have
known it
was illegal, obedience to an order was not a valid defense. Thus, the military jury could have found
either that the alleged order to kill was not issued, or, if it was,
that the
order was not a defense to the charges.
The military courts found ample evidence to support either
hypothesis.
Calley
v. Callaway, 519 F.2d 184, 193-94 (5th Cir. 1975)
(footnote omitted).
[75]See infra note
75.
[76]
These professional
basics have been previously articulated in different words. See William
G. Eckhardt, Command Criminal
Responsibility: A Plea for a Workable Standard, 97 Mil. L. Rev. 1, 22-23 (1982).
[77]Teaching
not to do something is often best taught
by teaching what to do. This concept,
coupled with an articulation of what a service person is expected to
do, was
best captured in The Nine Marine Corps Principles which encapsulates
both
Military Professionalism and the Law of War:
THE NINE MARINE
CORPS PRINCIPLES
1.
Marines
fight only
enemy combatants.
2.
Marines
do not harm
enemy soldiers who surrender. Disarm them and turn them over to your
superior.
3.
Marines
do not kill
or torture prisoners.
4.
Marines
collect and
care for the wounded, whether friend or foe.
5.
Marines
do not
attack medical personnel, facilities or equipment.
6.
Marines
destroy no
more than the mission requires.
7.
Marines
treat all
civilians humanely.
8.
Marines
do not
steal. Marines respect private property and possessions.
9.
Marines
should do
their best to prevent violation of the law of war.
Report all violations of the law of war to
your superior. (Or Judge Advocate, Chaplain or Provost Marshal.)
The
Marine Corps Principles were adopted as The Soldier’s Rules by the
Army in Army Regulation 350-41, Training in Units (19 March 1993) as
minimum
training and knowledge for all personnel.
[78] Much
of this
training program evolved from Your
Conduct in Combat Under the Law of War, Training Circular 27-1 (19
March
1976). It distills and communicates in
basic terms the essentials of warfare. I
paraphrase this material often when I teach as follows:
TROUBLE
SPOTS TO SUPERVISE
1.
WATCH
FOR FORBIDDEN “T’s”: TARGETS, TACTICS, TECHNIQUES
a.
Don’t
attack
noncombatants.
b.
Don’t
shoot at a
parachute unless it holds a combatant.
c.
Don’t
shoot at the
Red Cross or hide behind medical service symbols.
d.
Don’t
cause
destruction beyond the requirement of your mission.
e.
Don’t
attack
protected property.
f.
Don’t
use poison or
alter your weapons to increase enemy suffering.
2.
WATCH
THE PROCESS OF CAPTURING ENEMY SOLDIERS
a.
Let
enemy soldiers
surrender.
b.
Treat
all captives
and detainees humanely.
c.
Don’t
use coercion
in questioning captives and detainees.
d.
Provide
medical
care for sick and wounded captives.
e.
Safeguard
captives
from the dangers of combat.
f.
Don’t
take personal
property from captives.
3.
INSIST
UPON RESPECT FOR CIVILIAN AND PRIVATE PROPERTY
a.
Don’t
violate
civilians’ rights in war zone.
b.
Don’t
burn or steal
civilian property.
c.
Ensure
the safety
of civilians.
4.
KNOW
WHAT TO DO WHEN CRIMES ARE COMMITTED AND DO IT
a.
Don’t
violate the
laws of war.
b.
Do
your best to
prevent crimes.
c.
Report
crimes
immediately through your chain of command.
[79] Our
national
experience in teaching Law of War combined with more recent emphasis on
Human
Rights has produced interesting results.
Perhaps the best example of other armed forces using our
methodology
comes from the Peruvian Army. I am reliably informed that
“disappearances” were
reduced fifty percent the month the program utilizing these
instructions was
implemented.
TEN COMMANDMENTS OF HUMAN RIGHTS
FOR SOLDIERS
THOU
SHALL:
1.
Honor
the spirit of
the Universal Declaration of Human Rights.
2.
Give
and obey only
lawful orders.
3.
Report
crimes and
human rights violations to proper authorities.
4.
Respect
individual
integrity and human dignity.
5.
Abide
by the
Military Code of Honor, be chivalrous, and tell the whole truth in
human rights
investigations.
6.
Spread
the word:
Order depends on respect for human rights.
THOU SHALL NOT
COMMIT, NOR TOLERATE:
7.
Murder,
rape,
torture, or the excessive use of force.
8.
Disappearances.
9.
The
unnecessary
destruction of property.
10.
Extra
judicial
punishment.
[80] United States Dep’t of Defense, Conduct
of the Persian Gulf War: Final Report to Congress, App. O, “The
Role of
the Law of War,” 605, 605-32 (Apr. 92).
This report to the American public dramatically – and in the
most
practical of ways – supports the Government’s assertion regarding the
comprehensiveness of its Law of War Program.
[81] See generally J. Ashley Roach, Rules of
Engagement, Naval War C.
Rev. (Jan.-Feb. 1983).
[82]
Secret Memorandum,
Joint Chiefs of Staff (Oct. 28, 1988) (regarding “Peacetime Rules of
Engagement”). Operational necessity and
sensitive diplomatic-political context necessitate secrecy. The readable, instructive, definitive work
analyzing and describing Rules of Engagement is Mark S. Martins, Rules of Engagement for Land Forces: A
Matter of Training, Not Lawyering, 143 Mil.
L. Rev. 3-160 (1994).
[83]
Goldwater-Nichols
Department of Defense Reorganization Act of 1986, Pub. L. 99-433, Oct.
1, 1986,
100 Stat. 992.
[84] The
Army developed
a concept of “Operational Law.” That
term was defined as follows: “Operational Law (OPLAW) incorporates, in
a single
military legal discipline, substantive aspects of international law,
criminal
law, administrative law, and procurement-fiscal law relevant to the
overseas
deployment of US military forces. It is
a comprehensive, yet structured, approach toward resolving legal issues
evolving from deployment activities.” Center
for Military Law and Operations and International Law Division, The
Judge
Advocate General’s School, United States Army, Operational Law Handbook
(2nd
ed.), Preface to
Original OPLAW
Handbook (1992). See Marc
L. Warren, Operational
Law ‑ A Concept Matures, 152 Mil. L.
Rev. 33-73 (1996).
[85] See supra note
76.
[86] See generally William G. Eckhardt, Nuremberg
‑ Fifty Years: Accountability and
Responsibility, 65 UMKC L.
Rev.
1, 3-4 (1996).
[87] Id. at
9-10.
[88]
President’s
Address to to the Nation, United States Air Strike Against Libya, April
14,
1986, 22 Weekly Comp. of Pres.
Doc.
491-92 (April 21, 1986).
[89] Text
of Clinton
Statement on Iraq – February 17, 1998 (visited April 12, 2000)
<http://www.cnn.com/ALLPOLITICS/1998/02/17/transcripts/clinton.iraq>.
[90] War
Powers
Resolution, Pub. L. No. 93-148, 87 Stat. 555, 50 U.S.C. § 1541-48
(1982).
Section 4 Reporting, § 1543(a) (reporting req.).
[91]
David Montgomery, 30 Years Later, Heroes Emerge From Shame
of
My Lai Massacre, Wash.
Post,
Mar. 7, 1998 at A1, available in 1998
WL 24716057.
[92] 3 Honored for Saving Lives at My Lai, N.Y. Times, Mar. 7, 1998, at
A2.
[93]
David Montgomery, supra note 91 at A10.
[94]
United States Dep’t of Army, Field Manual
22-100. Chapter 2 The Leader and Leadership: What the Leader Must Be,
Know, and
Do, ¶ 2-39, p. 2-10 (1999)
<http://155.217.58.58/cgi-bin/atdl.dll/fm/22-100/toc.htm>
[95] Id. The example is
similar to the Soldier’s Medal citation.
WO1
Thompson at My Lai
Personal
courage ‑
whether physical, moral, or a combination of the two ‑ may be
manifested in a
variety of ways, both on and off the battlefield. On
March 16, 1968 Warrant Officer (WO1) Hugh
C. Thompson Jr. and his two-man crew were on a reconnaissance mission
over the
village of My Lai, Republic of Vietnam.
WO1 Thompson watched in horror as he saw an American soldier
shoot an
injured Vietnamese child. Minutes later,
when he observed American soldiers advancing on a number of civilians
in a
ditch, WO1 Thompson landed his helicopter and questioned a young
officer about
what was happening on the ground. Told
that the ground action was none of his business, WO1 Thompson took off
and
continued to circle the area.
When
it became
apparent that the American soldiers were now firing on civilians, WO1
Thompson
landed his helicopter between the soldiers and a group of 10 villagers
who were
headed for a homemade bomb shelter. He
ordered his gunner to train his weapon on the approaching American
soldiers and
to fire if necessary. Then he personally
coaxed the civilians out of the shelter and airlifted them to safety. WO1 Thompson’s radio reports of what was
happening were instrumental in bringing about the cease-fire order that
saved
the lives of more civilians. His
willingness to place himself in physical danger in order to do the
morally
right thing is a sterling example of personal courage.
[96] For
an excellent
discussion of humanitarian intervention, see Richard
J. Erickson, Legitimate Use of Military Force Against State-Sponsored
International Terrorism 188-93, 224-25 (1989).
[97] See Rome Statute of the International
Criminal Court, A/CONF.183/9 (July 17, 1998).
[98] See William G. Eckhardt, ‘We the People’ Go
to War: The Legal
Significance of the Weinberger Doctrine, in The
Recourse to War: An Appraisal of the “Weinberger Doctrine” 59,
61-67
(U.S. Army War College Strategic Studies Institute, Alan Ned Sabrosky
&
Robert L. Sloane eds. 1988).
[99] For
example, I
have participated in this process by presenting formal papers in two
conferences. The first involved the
Legal Advisors of the former Warsaw Pact countries who met in a
“Military Law
in a Democratic Society Conference” in Stuttgart, Germany, on September
22,
1992. My paper was entitled “Basis and
Role of the Military in a Constitutional Democracy.”
The second conference in Heidelberg, Germany,
on June 28-30, 1994 entitled “Conference on Military Support of
Democratization
in Europe” involved the Ministers of Defense of the former Warsaw Pact
countries. My presentation was entitled
“The Rights and Obligations of the Citizen Soldier.”