I Am a Bit Sickened': Examining Archetypes of Congressional War Crimes Oversight after My Lai and Abu Ghraib

Author:Samuel Brenner
Position:J.D., 2009, The University of Michigan Law School; Ph.D. (History), 2009, Brown University
Pages:1-93
 
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MILITARY LAW REVIEW
Volume 205 Fall 2010
“I AM A BIT SICKENED”1:
EXAMINING ARCHETYPES OF CONGRESSIONAL WAR
CRIMES OVERSIGHT AFTER MY LAI AND ABU GHRAIB
SAMUEL BRENNER*
There is no question but that a tragedy of major
proportions involving unarmed Vietnamese, not in
uniform, occurred at My Lai 4 on March 16, 1968, as a
result of military operations of units of the Americal
Division.2
Our report, however, discusses the failure of a relatively
small number of soldiers who served at Abu Ghraib
prison . . . [and] misconduct (ranging from inhumane to
sadistic) by a relatively small group of soldiers and
civilians . . . .3
* J.D., 2009, The University of Michigan Law School; Ph.D. (History), 2009, Brown
University. Law Clerk, Honorable David W. McKeague, U.S. Court of Appeals for the
Sixth Circuit (2009–2010); Law Clerk, Honorable Kim McLane Wardlaw, U.S. Court of
Appeals for the Ninth Circuit (2010–2011). I would like to thank Rebecca S. Eisenberg,
Don Herzog, and Marvin Krislov for advice and direction. I would also like to thank
David Weis, Claudia Arno, Andrew Arno, Charles Brenner, Elaine Brenner, the fall 2008
Student Scholarship Workshop at The University of Michigan Law School, and Captain
Evan Seamone and the staff of the Military Law Review.
1 Robert M. Smith, White House Says U.S. Policy Bars Any Mass Slaying, N.Y. TIMES,
Nov. 27, 1969, at 1 (printing the statement of Hawaii Senator Daniel K. Inouye, upon
seeing pictures of the My Lai massacre).
2 ARMED SERVS. INVESTIGATING SUBCOMM. OF THE COMM. ON ARMED SERVS., H.R.,
NINETY-FIRST CONG., 2ND SESS., UNDER AUTHORITY OF H. RES. 105, INVESTIGATION OF
THE MY LAI INCIDENT 4 (1970), available at http://www.loc.gov/rr/frd/Military_Law/
ML_investigation.html [hereinafter HÉBERT REPORT].
3 Statement by General Paul Kern, Commanding General, United States Army Materiel
Command, before the Armed Services Committee, United States House of
Representatives, on the Investigation of the 205th Military Intelligence Brigade at Abu
2 MILITARY LAW REVIEW [Vol. 204
The above language—used respectively by a legislator in 1969 and a
senior military official in 2004—to describe wartime atrocities was eerily
similar. When the members of Congress emerged from the slide shows
and spoke with reporters in November of 1969, they were still “shocked
and sickened” by the photographs of victims that they had seen at the
private, Pentagon-sponsored congressional briefings regarding the March
1968 massacre of South Vietnamese civilians at My Lai by American
soldiers under the command of Captain Ernest Medina and Lieutenant
William Calley.4 Illinois Republican Representative Leslie C. Arend left
the House briefing early, only an hour after it began, explaining that he
had “one of those queasy stomachs” and that “the pictures were pretty
gruesome.”5 “Having been in combat myself,” said Hawaii Democratic
Senator Daniel K. Inouye, who lost an arm and won the Medal of Honor
while serving in the Army during World War II, “I thought I would be
hardened, but I am a bit sickened.”6 Thirty-five years later, legislators
sounded similar notes after congressional briefings on the abuse of Iraqi
detainees in the fall of 2003 by American military policemen in the
prison at Abu Ghraib. Senate Majority Leader Bill Frist, Republican of
Tennessee, and Minority Leader Tom Daschle, Democrat of South
Dakota, characterized the images they viewed as “appalling”7 and
“horrific,”8 respectively. “My stomach gave out,” explained Republican
Georgia Senator Saxby Chambliss, adding that some senators gasped at
the pictures.9 “There’s no definition of the Geneva convention or human
decency” that would permit these “disgusting, depraved acts,” concluded
Democratic Representative Jane Harman, the top-ranking Democrat on
the House Intelligence Committee.10
This article examines the startling similarities—highlighted by the
similarity of the language of 2004 to the language of 1969—between
congressional responses to My Lai and alleged war crimes in Vietnam
Ghraib Prison, Iraq, Second Session, 108th Cong. 2d Sess. (Sept. 9, 2004) [hereinafter
Kern Statement].
4 E.g., William Greider, Senators Shocked by Pictures, WASH. POST., Nov. 27, 1969, at
A1.
5 Smith, supra note 1, at 1.
6 Id.
7 Kathy Kiely & William M. Welch, Abu Ghraib Photos Cause Gasps in Congress, USA
TODAY, May 13, 2004, at A4 (citing Sen. Frist).
8 Carl Hulse & Sheryl Gay Stolberg, The Struggle for Iraq: Congress; Lawmakers View
Images from Iraq, N.Y. TIMES, May 13, 2004 (citing Senator Daschle).
9 Kiely & Welch, supra note 7, at A4; see also Demetri Sevastopulo, Senators See New
Photographs, FIN. TIMES (UK), May 13, 2004, at 7.
10 Kiely & Welch, supra note 7, at A4.
2010] CONGRESSIONAL WAR CRIMES OVERSIGHT 3
and congressional responses to Abu Ghraib and alleged war crimes in
Iraq.11 After both My Lai and Abu Ghraib, for example, some
congressional leaders (generally in the House of Representatives)
supportive of the president or of military action arguably used their
oversight functions to obscure the facts, hobble potential prosecutions of
high military officials, and shuffle embarrassing episodes off the national
and international stage as quickly as possible.12 Similarly, in both
instances some powerful and influential legislators (generally in the
Senate) in the majority party, such as the Democratic Mississippi Senator
John C. Stennis and the Republican Virginia Senator John Warner, who
initially claimed that they wanted to use congressional oversight powers
to focus attention on alleged American atrocities (in Warner’s case
11 War crimes during both the Vietnam conflict and the Iraq War are “alleged” in the
sense that many of them have not been proven in court. In part, this is because American
military and political leaders acted to block effective prosecutions, or because some
accused military personnel have gotten off on legal technicalities. See, e.g., Josh White,
Officer Acquitted of Mistreatment in Abu Ghraib Case, WASH. POST, Aug. 29, 2007; infra
notes 125–48 and accompanying text. It must also be recognized that some number of
alleged war crimes, especially during the Vietnam conflict, simply never happened, and
were manufactured by conspiracy theorists and opponents of the war. See infra note 154.
Some war crimes have been proven in courts; on 29 March 1971, for example, a military
court-martial found Lieutenant William L. Calley guilty of murdering twenty-two
Vietnamese civilians at My Lai and of assaulting a two-year-old boy with the intent to
kill. Michael J. Davidson, Congressional Investigations and Their Effect on Subsequent
Military Prosecutions, 14 BROOK. J.L. & POLY 281, 300 (2005). After Abu Ghraib, a
number of relatively low-ranking military police of the 372nd Military Police Company,
including, most notably, Specialists Charles Graner and Lynndie England, either pled
guilty to or were found guilty of offenses such as dereliction of duty and maltreatment of
prisoners. See, e.g., Specialist L. B. Edgar, Court Sentences England to 3 Years, ARMY
NEWS SERV., Sept. 28, 2005; Graner Gets 10 Years for Abu Ghraib Abuse, ASSOCIATED
PRESS, Jan. 16, 2005.
12 See, e.g., infra notes 98–149 and accompanying text. This, of course, does not mean
that American politicians are insensitive to world opinion, or are willing to condone
atrocity. In 1996, for instance, Congress took a firm stance against atrocities—or, at
least, atrocities committed against or by American servicemen or nationals—by passing
the War Crimes Act, 18 U.S.C. § 2441 (2006), which provided for the fining,
imprisonment, and even execution of anyone committing a war crime. While some
commentators have objected to the War Crimes Act as not going far enough in holding
commanders responsible for the actions of their subordinates, see, e.g., Victor Hansen,
What’s Good for the Goose is Good for the Gander: Lessons from Abu Ghraib: Time for
the United States to Adopt a Standard of Command Responsibility Towards its Own, 42
GONZ. L. REV. 335 passim (2007), or in expanding American jurisdiction to the entire
world, Congress clearly signaled its disapproval of exactly the sorts of actions for which
American servicemen and servicewomen have been responsible in Vietnam and Iraq.

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