The Sixth Annual George S. Prugh Lecture in Military History

• Author: Thomas L. Hemingway
• Position: A graduate of Willamette University (B.A. & J.D.)
• Pages: 245-260

2012] SIXTH ANNUAL PRUGH LECTURE 245

THE SIXTH ANNUAL GEORGE S. PRUGH LECTURE IN

MILITARY LEGAL HISTORY*

BRIGADIER GENERAL THOMAS L. HEMINGWAY1

Thank you. Thanks very much. Thanks for the invitation to be here

today at this prestigious event. General Prugh, as most of you know

better than I, was one of the most accomplished lawyers ever to wear the

cloth of our nation. Interestingly when he was the Staff Judge Advocate

of Military Assistance Command, Vietnam, in the 1960s, he faced some

of the certain challenges that were similar to those we faced a generation

later in 2001. In his monograph he wrote, “Most difficult for us was to

determine applicable international law for much depended upon the legal

characterization of the conflict and the American role in it.”2 And that is

very much what I found—the position I found myself in when I was

recalled to active duty.

* This is an edited transcript of a lecture delivered on April 25, 2012 by Brigadier General

(BrigGen) Thomas L. Hemingway to the members of the staff and faculty, distinguished

guests, and officers attending the 60th Graduate Course at The Judge Advocate General’s

Legal Center and School, Charlottesville, Va. The chair lecture is named in honor of

Major General George S. Prugh (1920–2006).

1 A graduate of Willamette University (B.A. & J.D.), BrigGen Thomas L. Hemingway

was commissioned in 1962 and entered the Air Force Judge Advocate General’s Corps in

1965.

Over the next thirty years, he served in a variety of assignments, including staff

judge advocate at the group, wing, numbered air force and unified command level.

Brigadier General Hemingway also was an associate professor of law at the U.S. Air

Force Academy and a senior judge on the Air Force Court of Military Review. His

overseas service included one tour in Thailand and three tours in Germany.

Brigadier General Hemingway’s final assignment was Chief, Counsel, U.S.

Transportation Command, and Staff Judge Advocate, Headquarters, Air Mobility

Command, Scott Air Force Base, Illinois. After retiring in October 1996, BrigGen

Hemingway was recalled to active duty in August 2003 to serve in the Defense

Department as Legal Advisor, Office of Military Commissions. He retired from active

duty again in 2007, but continued his government service as the Senior Advisor to the

Deputy Secretary of Commerce.

In addition to his many military awards and decorations, BrigGen Hemingway is the

recipient of the Justice Tom C. Clark Award, which is given annually by the District of

Columbia Federal Bar Association for outstanding accomplishments in career service to

the U.S. Government. Willamette University College of Law presented him with its

Outstanding Alumni Award in 2011. Brigadier General Hemingway presently serves as

the corporate secretary of The Army and Navy Club, Washington, D.C.

2 MAJOR GENERAL GEORGE S. PRUGH, VIETNAM STUDIES, LAW AT WAR, VIETNAM 1964-

1973 (1975) (published by the Dep’t of the Army).

246 MILITARY LAW REVIEW [Vol. 212

The attack of the September 11, 2001, stunned not only the United

States of America, but the international community, as well, and the legal

community was no exception. No one in the world anticipated non-state

actors being capable of waging war on an international scale, and we

were totally unprepared for that. I can remember as a retired officer

standing on my porch that afternoon smelling the smoke from the fire at

the Pentagon. And when I came in that evening, my wife said to me how

do you feel and I said, “Well, it’s the first time since I’ve retired that I

wished I were back on active duty.” That falls under the heading of be

careful what you ask for, because you may get it. (Laughter.) I think

this was the only time in our history that we had been faced with nonstate

actors since the 1800s, when Jefferson launched the U.S. Navy after the

Barbary pirates. And the Congress responded to this with the

Authorization for Use of Military Force, North Atlantic Treaty

Organization, ANZUS, Organization of American States, all invoked

their self-defense clause or recognized that this was an act of armed

conflict. That position, of course, was not without critics. Lord Peter C.

Goldsmith, QC—always remember the QC, that’s important—the

Attorney General of the United Kingdom, was of the opinion that this

was a law enforcement issue that called for a law enforcement response.

There were some people in the United States who shared that view. A

small, but what I considered to be very vocal minority, but nevertheless

that triggered a great deal of debate. And I think it’s useful to remember

that there was no existing international tribunal at the time that had

jurisdiction over these offenses.

The ICTY, the International Criminal Tribunal for the former

Yugoslavia, the International Criminal Tribunal for Rwanda, Sierra

Leone, all of those had jurisdictional limits that were geographical to the

area where the conflict they were addressing occurred and the ICC, the

International Criminal Court, was created too late to have jurisdiction

over these offenses. The international law at the time was pretty well

limited to state practice and the Geneva Conventions. And as you know,

Article IV of the Conventions gives privileges to those commanded by a

person responsible or his subordinates, wearing a fixed, distinctive

recognizable insignia and carry arms openly and who comply with the

customs and laws of war. Al Qaeda and the Taliban did not qualify

under any of those four bases. I think it is also important to remember,

although some folks don’t seem to, that the Taliban were never

recognized by the international community as the government of

Afghanistan.