My Lai and Military Justice - To what effect?

• Author: By Captain Norman G. Cooper
• Pages: 01

This article analyzes the impact of the My Lai cases upon military justice f1-om several PeTSpeCtiWS. Con, sidered am their international iazr implications, the ef-fect of the cases upon extraordinary w i t practice in the military courts, the judicial competency of the My Lai courts-martial to deal with oonstitutional issues, and the attacks upon the military justice system in a federal forum. These elements tentatively .reflect that the impact of M y Lai upon the present military iwtice system has been rather limited.

1. IKTRODUCTION

   Military justice was tested by the My Lai eases in an atmosphere of unparalleled publicity, and while the "My Lai Massacre" has become a contemporary symbol of atrocity, the My Lai eaurts-martial hare yet to be accorded their due impact upon military law. This article examines the present and potential effect af My Lai upon military justice.

   The competency of military courts to deal with the unusual and varied issues spawned at the My Lai trial and pretrial praeeedings may be measured in several different ways. For example, their resolution of difficult questions involving grants of immunity and the applicability of the Jencks Act to congressional testimony indicates to a certain extent their capability. Beyond the immediate scope of trial were problems which tested the viability of ex-traordinary writ practice in the military. A Bystem of law, how-ever, is not to be evaluated by direct analysis of trial issues alone. To iudge the effect of My Lai upon the military justice system, it is necemary also to vien the cases in their factual set-

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   **JAGC, L'S Army: OS Army Judiciary. Frankfurt. Germany: B.A.. 1864, The Citadel; LL.6.. 1867. Duke Law School, member of the bars of the North Carolina Supreme Court and the District courr of Wanh-ington, D.C.

   menta1 ah-enei-.

   ting, to weigh their implications as to international law, and to evaluate their jurisdictional vitality in a federal court forum. The total influence of the My Lai cases, af course. extends to areas other than our military justice system: nonetheless, an examination of their impact an that system is indicative of them ultimate importance to American military jurisprudence.

   11. THE MY LA1 MASSACRE: MURDERS AND MYTHS

   A. THE LTLTIMATE FACTS

   There is no doubt that the Xy Lai incident was a horrendous event, one which sullied the record of the United States Army in Vietnam beyond any other occurrence. Yet the intensive journalistic and judicial scrutiny accorded My La] fails to reveal its ultimate effect-there is no satisfactory theory as to its cause, nor is there reasonable agreement as to its extent. Nonetheless, an imtial summary of what reportedly happened at X y Lni on March 16, 1968, and why, provides the factual frameirork for discussion of the subsequent legal proceedings.

   As first reported I and later largely verified in official investigations, a large number of men, women, and children were slain by American soldiers assaulting My Lai 4, a village in Quang Ngai province, South Vietnam, on March 16, 1968. The village itself was only one of several such hamleta in that bitterly contested, Viet Cons dominated area. As a prelude to the slaughter of that March day, Charlie Cornpan), 1st Battalion, 20th Infantry, part of Task Farce Barker, a battalion-sized unit created to counter the 48th Local Force Viet Cong Battalion operatinp in the area. suffered weeks of death and demoralization from mines. booby-traps and a hostile populace. The troops, expecting to encounter them elusive enemy in the en\-irons of My La, gave full measure ai revenge to the inhabitants of My La]. killing nearly all of those present and destroying their livestock and crops.

   These notorious facts surfaced 1x1 late 1969 and early 1970.' In later analyses journalists. Ia~vyers and those attracted to the \lp Lai atrocity for whatever motive, concerned themselves nith one facet of the incident or another, fashioning then theories to their prejudices. The Army itself, in a surfeit of responsib

   ~ 'S. HERSH, \!I LII 4 11BY [hereafter c:ted 8s HIREHI. end R HI~IVER,

   OyE Far m aicounl a i the I!% La1 story ab I? developed. m e HEREH at 129-43

   \IORZIUG 1'; THE WAR ( 1 B i O i 11970)a MY La1 18 sko oiten diicvssed ~n rhe cantext d che larrer m p o n of the Vietnam War, e F., T. TAYLOR, KLRPIIBERD

   AVD VICT\-IY A

   IC.&v TRIGEDY 119iOi

   MY LA1

   leveled numerom charges against those still subject to court-martial lurisdiction: The first to he charged with offenses arising out of the My Lai tragedy was First Lieutenant William L. Calley; ironically, he was the only alleged participant convicted: although others were brought to trial. As for those offenses related to an alleged coverup, only one officer stood trial, Colonel Oran K. Henderson, the brigade commander at the time of the My Lai incident and the officer immediately responsible for investigating reports of misconduct stemming from the assault on My Lai. He was acquitted December 17,1971, at the last My Lai trial.'

   In between the cases of Lieutenant Calley and Colonel Henderson are to be found those ultimate facts of My Lai subject to judicial resoiution. However, an examination of the judicial proceedings of others charged in connection nith the overall My h i incident is of limited value in fixing criminal responsibility and determining specific criminal acts, Dismissal of most of the charges without trial and the considerable legal maneuvering at the fen trials obscure those uitimate criminal facts capable of judicial resolution. That murders were committed at My h i was

   well established by the Calley conviction: nonetheless, many myths surround the extent and nature of the total crimes of My Lai. It is beyond the scope of this analysis to evaluate the extent of the X y Lai crimes, m y command responsibility for those crimes or any conspiracy to hide them. It is nonetheless helpfui in weighing the impact of My Lai upon military justice to review the several investigations of My Lai, the charges laid against the alleged participants, and those brought against officers in the chain of command for an alleged coverup of war crimes.

   B. REVELATIONS AKD INVESTIGATIONSThe first indication that something had gone terribly amiss during the assault of the members of Charlie Company upon My Lai 4 in 1968 did not confront high Army officials until aver a year later. A Vietnam veteran named Ron Ridenhour had heard disturbing stories of what had occurred at a village called "Pinkviile" in March 1968. He decided to bring these stories to the attention of Congress and the United States Army in a letter dated 29 March 1969: The next month the Inspector General of

   'See, Degartmenf of the Army Kews Release, "Army lnnauneee Peers-MaeCrate Inquw Findings? March 17, 1970. annovnemg charges agamat fourem officers.

   'United States V. Calley, C.M. 416402 (ACME 7 Sen. 1971)'See Herah, Couerw Tai YEW YORXUI, Jan. 28. 1972. at 40, 71.'See, Renoit u i the D e p w t m n t ai the A m y Review of Pdiminon~ In-veatigations znto the MY Ld Inmdint (U1, Val. I, Inel. 2 (14 Xar. 19701.

   the Army initiated a full scale investigation at the direction of the Army Chief of Staff, General \Yilliam C. Westmoreland. Colonel William \Y~lson of the Inspector General's staff set out on a nationwide inauiry, taking statements from numerous members of Charlie Company. This investigation continued through the Summer of 1369, revealing damning evidence against Lieutenant Calley especially. He was identified in a lineup an June 13. 1969, conducted in Washington. D.C.. at Colonel Wiisan's instigation. By the end of July 1969, Lieutenant Calley's records were "flag-ged", and Colonel Xilsan's investigation m.s completed shortly thereafter. Because of the extensive evidence of criminal conduct contained in Colonel \Wlson's Inspector General report, the Army turned the report over to its Criminal Investigation Division.'

   Agents of the Army's Criminal Investigation Division continued to uncmer mounting evidence of criminal acts at My Lai on March 16, 1968. In the meantime, charges xere preferred against Lieutenant Calley an 5 September 1969. An Article 32 investigation was conducted and six speciflcations of premeditated murder of mer one hundred "Oriental human beings, occupants of the rillage of My Lai 4. whose names and sexes are unknown," were referred to trial by general court-martial on 24 Sovember 1969 By this time the Mr Lai horror stories nere confronting the world: indeed, a key witness in the Caileu case, Paul Meadla, had shocked the nation with his revelations on teleOn 28 October 1969 charges were brought against Staff Sergeant David Ifitchell at Fort Hood, Texas; they ere Likewise suhjected to an Article 32 investigation and referred to trial hy general court-martial by the end of 1969:. The Army's Criminal Investigation Division pursued its inquiry aell into the summer of 1970, setting up special investigating teams in the United States and Vietnam. The wide-reaching efforts of agents of the Criminal Investigation Divislan resulted in over fire hundred statements, corering twntpfour separate reports and in\-olVing more than forty-five suspects, including ex-soldiers. To B great degree criminal prosecutions of those charped with actually par- 'See HER38 ai 103-27 '1870)'United Stater v. Calks. C 11. 426402 I I C x R 7 Sep. 19711'.Sea HrnRSH 8: 140-12 (19708' Staff Sergeant Mmhell was the fim 311 Lai accused scqultred The Mitchell ease 18 dmlrred w t h respect to the Jenckr Ael and congresalonal testimony, at \,A,

   ticipating in crimes at lly Lai were based upon the work of Criminal Investigation Division agents.'*

   The dimensions of the My Lai incident and attendant publicity expanded greatly during the months of November and December 1969. One crucial question immediately became apparent-why had it taken so long for My Lai to become known? On 26 November 1969, the Secretary of the Army, Stanley R. Resor, and the Army Chief of...