..........................Court Marital Testimony
Selected Witnesses/Testimony for: Prosecution, Defense, Court
...
[Unedited testimony: University of Missouri Kansas
City]
Prosecution Witness Ronald Haeberle
Direct Examination:
.....* * *
Q: You never told anyone in the chain of command about
the atrocity and massacre?
.....A: No, sir.
Q: Weren't you shocked at what you'd seen? Weren't you
upset by what you'd seen? Why didn't you report it?
.....A: I felt it was unusual
but I wasn't the one to bring it up. We decided to keep quiet
until someone came to us and not to start the ball rolling.
Q: Have you never heard of a MAC-V order of 1967 that
says it is the responsibility of all military personnel to report
to their commanding officer any war crime they know of, that
they should make every effort to discover war crimes, report
them and preserve the physical evidence?
.....A: I never heard of
that regulation before.
Q: Do you know that it is a serious offense not to comply
with a regulation, known or unknown?
.....A: No.
Q: Did you ever consider the impact of your failure to
disclose that you had these pictures or information to your commander
or senior commanders?
.....A: No, sir, I did not.
Q: You had no feeling that failure to disclose that information
was a dereliction of duty?
.....A: I've heard that.
Prosecution Witness Dennis Conti
Direct Examination:
.....* * *
Q: Then what happened?
.....A: Lieutenant Calley
came out and said take care of these people. So we said, okay,
so we stood there and watched them. He went away, then he came
back and said, "I thought I told you to take care of these
people. We said, "We are. He said, "I mean, kill them.
I was a little stunned and I didn't know what to do. He said,
"Come around this side. We'll get on line and we'll fire
into them. I said, "No, I've got a grenade launcher. I'll
watch the tree line. I stood behind them and they stood side
by side. So they--Calley and Meadlo--got on line and fired directly
into the people. There were bursts and single shots for two minutes.
It was automatic. The people screamed and yelled and fell. I
guess they tried to get up, too. They couldn't. That was it.
They people were pretty well messed up. Lots of heads was shot
off, pieces of heads and pieces of flesh flew off the sides and
arms. They were all messed up. Meadlo fired a little bit and
broke down. He was crying. He said he couldn't do any more. He
couldn't kill anymore people. He couldn't fire into the people
any more. He gave me his weapon into my hands. I said I wouldn't.
"If they're going to be killed, I'm not going to do it.
Let Lieutenant Calley do it, I told him. So I gave Meadlo back
his weapon. At that time there was only a few kids still alive
Lieutenant Calley killed them one-by-one. The I saw a group of
five women and six kids--eleven in all--going to a tree line.
"Get ‘em! Get ‘em! Kill ‘em! Calley told
me. I waited until they got to the line and fired off four or
five grenades. I don't know what happened....
Cross Examination:
Q: Did you see any dead bodies at My Lai? How many?
.....A: Quite a few.
Q: Were they sleeping or did they appear to be dead?
.....A: Well, they had holes
in ‘em so I assumed they were dead.
Q: Were you under medical treatment that day?
.....A: No.
Q: Isn't it a fact that you were taking penicillin for
venereal disease?
.....A: No. ... Oh, yeah
you're right. I was getting shots.
.....* * *
Q: And weren't you under the influence of marijuana on
March 16, 1968?
.....A: No.
.....* * *
Q: Weren't you a constant marijuana smoker?
.....A: No.
Q: Did you ever open your pants in front of a woman in
the village of My Lai?
.....A: No.
Q: Isn't it a fact that you were going through My Lai
that day looking for women?
.....A: No.
Q: Didn't you carry a woman half-nude on your shoulders
and throw her down and say that say was too dirty to rape? You
did do that, didn't you?
.....A: Oh yeah, but it wasn't
at My Lai.
Q: Didn't you cuss Lieutenant Calley out because he stopped
you from performing a perverse, unnatural sex act at My Lai?
.....A: No
Q: Do you remember you went into a hooch and started to
rape a woman and Lieutenant Calley told you to get out? Do you
deny that occurred?
.....A: Yes.
Q: Didn't you go around and tell members of your platoon
about the number of times you'd raped Vietnamese women?
.....A: No.
Prosecution Witness Paul Meadlo
Direct examination:
.....* * *
Q: Did you see Lieutenant Calley?
.....A: Yes
Q: What did he do?
.....A: He came up to mean
and he said, "You know what to do with them, Meadlo,"
and I assumed he wanted me to guard them. That's what I did.
Q: What were the people doing?
.....A: They were just standing
there.
.....A. [Calley] said, "How
come they're not dead?" I said, I didn't know we were supposed
to kill them." He said, I want them dead." He backed
off twenty or thirty feet and started shooting into the people--the
Viet Cong--shooting automatic. He was beside me. He burned four
or five magazines. I burned off a few, about there. I helped
shoot ‘em.
.....* * *
Q: Did you shoot?
.....A: Yes. I shot the Viet
Cong. he ordered me to help kill people. I started shoving them
off and shooting.
Q: How long did you fire?
.....A: I don't know.
Q: Did you change magazines?
.....A: Yes.
Q: Did Lieutenant Calley change magazines?
.....A: Yes.
Q: How many times did he change magazines?
.....A: Ten to fifteen times.
Q: How many bullets in a magazine?
.....A: Twenty, normally.
Cross examination:
.....* * *
Q: Why did you carry out that order?
.....A: I was ordered to.
And I was emotionally upset.... And we were ordered to get satisfaction
from this village for all the men we'd lost. They was all VC
and VC sympathizers and I still believe they was all Viet Cong
and Viet Cong sympathizers.
Q: Did you see Captain Medina? [Calley's immediate superior]
.....A: Yes. And he didn't
say anything and did not even try to put a stop to it. So I figured
we was doing the right thing.
Q: What was your impression of Lieutenant Calley at this
place where he gave you these orders?
.....A: I thought
the man was doing his duty and doing his job.
Q: Was Lieutenant Calley violent and in a sense raving
around?
.....A: No.
Re-direct examination:
.....* * *
Q: You said you were under emotional strain. Can you describe
the strain?
.....A: Just I was
scared and frightened.
Q: At what?
.....A: At carrying
out the orders.
Q: Why?
.....A: Because nobody really wants
to take a human being's life.
Q: But they were Viet Cong, weren't they?
.....A: Yes, they
were Viet Cong.
Q: What were the children in the ditch doing?
.....A: I don't know.
Q: Were the babies in their mother's arms?
.....A: I guess so.
Q: And the babies moved to attack?
.....A: I expected at any
moment they were about to make a counterbalance.
Q: Had they made any move to attack?
.....A: No.
.....* * *
Q: Now, Mr. Meadlo, one last question: Did Lieutenant
Calley or did Captain Medina order you to kill?
.....A: I took orders from
Lieutenant Calley. But--
Daniel [Prosecutor]: That's all.
Defense Witness Dr. Albert LaVerne
Direct Examination:
Q: Was Lieutenant Calley's judgment impaired beyond
normal limits on March 16th, 1968?
.....A: What do you mean
by "normal limits ?
Q: Was his judgment impaired on March sixteenth?
.....A: Yes, sir.
Q: How?
.....A: He could not
challenge the legality or illegality of the orders given by Captain
Medina. Captain Medina had become a father figure to him.
.....* * *
Q: Was Lieutenant Calley psychotic?
.....A: No.
Q: Was Lieutenant Calley neurotic?
.....A: No.
Q: Did Lieutenant Calley know right from wrong?
.....A: Yes.
Q: Could Lieutenant Calley adhere to the right?
.....A: He had a compulsion
to carry out his orders, to do his duty as an officer.
Q: Isn't that characteristic of a soldier?
.....A: Who else has done
what Lieutenant Calley is alleged to have done? ....
.....A: He proceeded to carry
out his orders.
DefenseWitness Lt. William Calley
Direct examninatuion:
Q: Now, I will ask you if during these periods of
instruction and training, you were instructed by anybody in connection
with the Geneva Conference?
.....A: Yes, sir,
I was.
Q: And what was it -- do you have a recollection, what
was the extent and nature of that tutoring?
.....A: I know there were
classes. I can't remember any of the classes. Nothing stands
out in my mind what was covered in the classes, sir.
.... * * *
Q: Did you receive any training in any of those places
which had to do with obedience to orders?
.....A: Yes, sir.
Q: What were the nature of the -- what were you informed
was the principles involved in that field?
.....A: That all orders were to be assumed legal,
that the soldier's job was to carry out any order given him to
the best if his ability.
Q: Did you tell your doctor or inform him anything about
what might occur if you disobeyed an order by a senior officer?
.....A: You could be court-martialled for refusing
an order and refusing an order in the face of the enemy, you
could be sent to death, sir.
Q: Well, let me ask you this: what I am talking and asking
is whether or not you were given any instructions on the necessity
for--or whether you were required in any way, shape or form to
make a determination of the legality or illegality of an order?
.....A: No, sir. I was never told that I had the choice,
sir.
Q: If you had a doubt about the order, what were you supposed
to do?
.....A: If I had--questioned an order, I was supposed
to carry the order out and then come back and make my complaint.
later.
....
* * *
Q: Now, did you see some live Vietnamese while you were
going through the village? [My Lai]
.....A: I saw two, sir.
Q: All right. Now, tell us, was there an incident concerning
those two?
.....A: Yes, sir. I shot and killed both of them.
Q: Under what circumstances?
.....A: There was a large concrete house and I kind
of stepped up on the porch and looked in the window. There was
about six to eight individuals laying on the floor, apparently
dead. And one man was going for the window. I shot him. There
was another man standing in a fireplace. He looked like he had
just come out of the fireplace, or out of the chimney. And I
shot him, sir. He was in a bright green uniform.
....
* * *
Q: There has been some information disclosed that you
heard before the court that you stood there at the ditch for
a considerable period of time; that you waited and had your troops
organized, groups of Vietnamese thrown in the ditch and knocked
them down in the ditch or pushed them in the ditch and that you
fired there for approximately and hour and a half as those groups
were marched up. Did you participate in any such shooting or
any such event?
.....A: No, sir, I did not.
Q: Did you at any time direct anybody to push people in
the ditch?
.....A: Like I said, I gave the order to take those
people through the ditch and had also told Meadlo if he couldn't
move them, to waste them, and I directly -- other than that,
there was only that one incident. I never stood up there for
any period of time. The main mission was to get my men on the
other side of the ditch and get in that defensive position, and
that is what I did, sir.
Q: Now, why did you give Meadlo a message or the order
that if he couldn't get rid of the to waste them?
.....A: Because that was my order, sir. That as the
order of the day, sir [i.e., given by Capt.Medina.]
.....*
* *
Q: And stated in that posture, in substantially those
words, how many times did you receive such an order from Captain
Medina?
.....A: The night before in the company briefing,
platoon leaders' briefing, the following morning before we lifted
off and twice there in the village.
.....*
* *
Q: And were you motivated by other things besides the
fact that those were the enemy? Did you have some other reason
for treating them that way altogether? I am talking now about
your briefings. Did you get any information out of that?
.....A: Well, I was ordered to go in there and destroy
the enemy. That was my job on that day. That was the mission
I was given. I did not sit down and think in terms of men, women,
and children. They were all classified the same, and that was
the classification that we dealt with, just as enemy soldiers.
Q: Who gave you that classification the last time you
got it?
.....A: Captain Medina, sir.
Q: Now, I will ask you this, Lieutenant Calley: Whatever
you did at My Lai on that occasion, I will ask you whether in
your opinion you were acting rightly and according to your understanding
of your directions and orders?
.....A: I felt then and I still do that I acted as
I was directed, and I carried out the orders that I was given,
and I do not feel wrong in doing so, sir.
Cross examination:
Q: Did you receive any fire getting off the helicopter?
.....A: I have no way to know, sir. I was not hit,
no, sir.
Q: Were you consciously aware of receiving any fire?
.....A: No, sir, I wasn't .
Q: Did you receive any fire during this period you were
waiting?
.....A: No, sir....
.....*
* *
Q: Did you see women?
.....A: I don't know, sir.
Q: What do you mean you weren't discriminating?
.....A: I didn't discriminate between individuals
in the village, sir. They were all the enemy, they were all to
be destroyed, sir.
Q: How did you know they were slowing you down?
.....A: Well, I generally know how South Vietnamese
people move, and if you are going to move South Vietnamese people,
you are not going to move them very fast, sir.
Q: Why did you tell Captain Medina they were slowing you
down?
.....A: Because I knew they were slowing me down.
It was another element that I had to move.
.....*
* *
Q: What did Captain Medina say when you had the group
of people, when you told him--
.....A: He told me basically to get rid of the people,
to get moving
Q: He told you that basically?
.....A: To the best of my knowledge. I can't remember
his exact words.
Q: You described the people to him?
.....A: No, sir. I didn't.
Q: How did you describe them to him?
.....A: Vietnamese. VC
Q: Which?
.....A: Either one. I don't know, sir.
Q: You don't know how you described them?
.....A: In that area, I could have used either term.
Q: Do you know if there were women in that group?
.....A: No, sir.
Q: Do you know if there were children in that group?
.....A: No, sir.
Q: Do you know if there were men in that group?
.....A: No, sir.
Q: What did he say?
.....A: He told me to give -- to get rid of the people
and get moving.
.....*
* *
Q: [by Prosecutor] * * *
.....A: * * * I saw Conti trying to molest a female,
sexually molest a female.
[Question for Students: Is this conduct relevant to
the degree of danger Charlie Company was in at the time?]
Q: [by Prosecutor] * * *
.....A: I went up to him and told him to stop what
he was doing and get over where he was supposed to be at, sir.
Q: Did he pull up his pants?
.....A: Yes, sir. I would imagine he would. He would
look kind of funny if he hadn't.
Q: Did you see him pull up his pants?
.....A: I didn't notice, no, sir. I wasn't paying
attention to whether he had his pants up or down. I f he wanted
to go around like that, that was his business.
Q: You weren't concerned with whether he was stopped or
not?
.....A:
Well, I stopped him, sir.
Q: D id he pull up his pants?
.....A: I don't know, sir. I didn't stand there to
see if he pulled up his pants.
Q: How do you know if he stopped?
.....A: Because he released the girl's hair.
[Question for Students: Does this testimony suggest
Calley's state of mind? How would it help the defense?]
.....*
* *
Q: How long did you fire into the ditch?
.....A: I have no idea, sir.
Q: How many shots did you fire?
.....A:
Six to eight, sir.
Q: One burst or semi-automatic?
.....A: Semi-automatic, sir.
Q: Who did you fire at?
.....A: Into the ditch, sir.
Q: What at in the ditch?
.....A: At the people in the ditch, sir.
.....*
* *
Q: Did you search him [a Vietnamese man in the ditch]
for any weapons?
.....A: No sir.
Q: Had you directed that any of those people be searched?
.....A: No, sir.
....*
* *
Q: Why didn't you direct that they be searched?
.....A: I feel much more secure in that situation
not to search them, sir, or get that close to them. If a man
made a move, you can defend yourself and get out of the way rather
than bend down to try to search him if he pulls a grenade.
.....*
* *
Q: Would you have taken them prisoner?
.....A: I don't know, sir.
.....*
* *
Q: How did you know if he could arrive at a body count
of your area?
.....A: Because he would have a better idea of what
sort of body count he would want to put in than I would, sir.
Q: Just any body count? Just any body count, is that what
you are saying?
.....A: Basically, yes, sir.
Q: Captain Medina could just put any body count that he
wanted to put?
.....A: Any body count that was reasonable. I would
imagine he would put the highest acceptable body count that he
could.
Q: Did you have any other conversation with him?
.....A: No, sir. We continued on that discussion for
quite some time.
Q: Could you relate the remainder of that discussion?
.....A: After he had given the body count and called
it in, we were getting ready to split up and start moving again,
and higher called Captain Medina, called back and asked what
percentage of that was civilians, that they had a report there
was a high amount of civilians in the village, sir.
[Question for Students: Why is the Prosecutor pressing
Calley on this point?]
.....*
* *
Q: Did you tell Captain Medina that you had shot the people
in the ditch?
.....A: Yes, sir. I did.
Q: Did he ask any facts about that?
.....A: No, sir.
Q: How did you tell him about it?
.....A: He asked--well, after the higher [authorities]
called back and asked--said it had been reported that a lot of
civilians were killed in the area, he wanted to know what the
percentage of civilians was.
Q: What did you tell him?
.....A: I told him he would have to make that decision,
sir.
.....*
* *
Q: Did you tell him the circumstances under which they
had been shot?
.....A: No, sir. Why should I? He knew what -- the
circumstances they were shot under, sir.
Q: How did he know?
.....A: Because he had told me to shoot them, sir.
....*
* *
Q: Did he ask for a weapons count?
.....A: Yes, sir.
Q: What did you tell him for that?
.....A: Zero that I had, sir.
....*
* *
Q: Did you testify that you received any order before
you left LZ-Dotti to save some of them for the mine field?
.....A: Yes, sir, I did.
Q: Why didn't you save some up for the mine field?
.....A: Captain Medina rescinded that order and told
me to waste them, sir.
Q: When did he rescind that order?
.....A: When he called me on the radio, when he was
in the eastern part of the village, sir.
Q: Did he specifically tell you to disregard the previous
order?
.....A: No, sir. He said those people were slowing
me down, waste them, sir.
Court Witness Captain Ernest Medina
Questions asked by Judge Kennedy:
Q:
Let me ask you, were there any questions asked of you at that
briefing?
.....A: Yes, sir.
Q: Do you recall what they were?
.....A: Yes, sir. One of the questions that was asked
of me at the briefing was, "Do we kill women and children?"
Q: What was your reply?
.....A: My reply to that question was: No, you do
no[t] kill women and children.You must use common sense. If they
have a weapon and are trying to engage you, when you can shoot
back, but you must use common sense."
Q: Were any provisions made by you for the treatment of
any wounded Vietnamese?
.....A: No, sir.
....*
* *
Q: Now, did you at any time on the fifteenth of March
or at any time on the sixteenth of March order or direct Lieutenant
Calley to kill or waste any Vietnamese people?
.....A: No, sir.
Q: After you left the village and you were some distance
from the village, did you, at any time, ever receive a radio
message to return to the village of My Lai Four?
.....A: Yes, sir. [B]etween fifteen-thirty, sixteen-thirty
hours on the sixteenth of March I had received a radio communication
from Major Calhoun and he instructed me to return back to the
village of My Lai Four and to determine how many noncombatants
had been killed. I told Major Calhoun that I felt because of
the distance involved of my having to return back to the village
from my night defensive position, we would have to clear the
area that we had just crossed from My Lai Four to our night position.We
would have to clear it again for mines and booby traps. I felt
that it would be best not to return. Also at this time, I had
an indication that the Forty-Eighth VC Battalion, which was supposed
to have been in the village of My Lai Four, had not been there.
That there had been a number of noncombatants killed. And this
is the other reason I did not want to return back to the village.
At that time, Major Calhoun had instructed me to try to determine
the number of innocent civilians that had been killed at the
village of My Lai Four. I got my platoon leaders together and
I asked them for a body count of innocent civilians that had
been killed. The first platoon leader, Lieutenant Calley, told
me in excess of fifty. Lieutenant Brooks, the second platoon
leader, told me the like number. He said, I believe the like
number of fifty or more."
.....Lieutenant
LaCross, the third platoon leader, gave me a body count of six.
At that time, I--"Oh, my God, what is-- what happened?"
I already had an indication that noncombatants had been killed.
I did not know it was this large a magnitude and at that tie
I made a remark to the platoon leaders that I had seen approximately
twenty to twenty-eight, and that that was the body count that
I was going to give Major Calhoun. I got on the task force command
net. I told Major Calhoun that I had a body count of twenty to
twenty eight noncombatants that had been killed. He said, I want
you to go back into the village of My Lai Four and make an exact
count of how many men, women, and children had been killed,"
and about that time, an individual using the call sign of Sabre
Six broke into the conversation and said, Negative.
.....*
* *
Q: Now, immediately following the date sixteen March,
did you ever make a statement to anyone, in substance, "I
will go to jail for this?
.....A: Yes, sir.
Q: And when was that?
.....A: Could have been possibly the night defensive
position when I found out what had happened, and also a couple
of days later at LZ-Dottie [helicopter landing zone near My Lai
4].
Q: All right. You testified that you made a radio transmission
to the first platoon, in substance, "Damn it, what is going
on up there?
.....A: Yes, sir.
Q: What prompted that?
.....A: I had received a--I had placed out a cease-fire
order to the platoon leaders. By a cease fire, I mean that they
were no--to make sure that there were no innocent civilians being
killed. then I received a call from the task force S-three stating
that he had a helicopter report [by the pilot who intervened
by placing his gunship between Calley's platoon and where some
more Vietnamese civilians were gathered, near the ditch, to stop
further shooting in My Lai] that there was indiscriminate killing
of innocent civilians. I again put this out. After I had started
moving from the evacuation, I again put--there was shooting over
on the right-hand side. I then called the first platoon and told
the, "Damn it, what is going on? I wanted to make sure that
there were no innocent civilians being killed.
Examination by Defense Lawyer
Q:
Did you indicate at any time that the information you had been
given in a briefing was false and that there were men, women,
and children in the village?
.....A: I did not expect to find noncombatants in
the village of May Lai Four.
Q: Were you surprised when you did see them?
.....A: Yes, sir.
Q: Did you say anything to your lower command or your
higher command about that?
.....A: No, sir.
Q: Why--when you first shot the women near [the vicinity
of My Lay 4 but not near "the" ditch] but, Captain
Medina, you felt so horrified and sick about it, why, when you
saw the small boy running by and you saw
somebody kill him, and whey when you saw that body there, you
didn't call somebody and notify them what you had seen and make
it positive that you had seen it and reported it to higher headquarters?
.....A: There were four reasons, sir.
Q: Let's have them.
.....A: Number one, sir, I did not expect to find
any noncombatants in that area; I expected to go in and do combat
with the Forty-Eighth VC Battalion. The woman--I was shocked.
It was the first human being that I had shot and I assumed that
I did kill her. The four reasons that I did not report the shooting
of any innocent or noncombatants at the village of My Lai four
and the reason that I suppressed the information from the brigade
commander when I was questioned are as follows: Number one, I
realized that instead of going in and doing combat with an armed
enemy, the intelligence information was faulty and we found nothing
but women and children in the village of My Lai four, and , seeing
what had happened, I realized exactly the disgrace that was being
brought upon the Army uniform that I am very proud to wear. Number
two, I also realized the repercussions that it would have against
the United States of America. Three, my family, and number four,
lastly, myself, sir.
.....*
* * |
|
[Tribunal's Opinion.]
QUINN, Judge:
...............................................................................
[1] Lieutenant Calley was a platoon
leader in C Company, a unit that was part of an organization
known as Task Force Barker, whose mission was to subdue and drive
out the enemy in an area in the Republic of Vietnam known popularly
as Pinkville. Before March 16, 1968, this area, which included
the village of My Lai 4, was a Viet Cong stronghold. C Company
had operated in the area several times. Each time the unit had
entered the area it suffered casualties by sniper fire, machine
gun fire, mines, and other forms of attack. Lieutenant Calley
had accompanied his platoon on some of the incursions.
[2] On March 15, 1968, a memorial
service for members of the company killed in the area during
the preceding weeks was held. After the service Captain Ernest
L. Medina, the commanding officer of C Company, briefed the company
on a mission in the Pinkville area set for the next day. ...
[3] Captain Medina testified
that he instructed his troops that they were to destroy My Lai
4 by "burning the hootches, to kill the livestock, to close
the wells and to destroy the food crops." Asked if women
and children were to be killed, Medina said he replied in the
negative, adding that, "You must use common sense. If they
have a weapon and are trying to engage you, then you can shoot
back, but you must use common sense." However, Lieutenant
Calley testified that Captain Medina informed the troops they
were to kill every living thing—men, women, children, and
animals—and under no circumstances were they to leave any
Vietnamese behind them as they passed through the villages enroot
to their final objective. Other witnesses gave more or less support
to both versions of the briefing.
................................................................................
[4] Calley's platoon passed the
approaches to the village with his men firing heavily. Entering
the village, the platoon encountered only unarmed, unresisting
men, women, and children. The villagers, including infants held
in their mothers' arms, were assembled and moved in separate
groups to collection points. Calley testified that during this
time he was radioed twice by Captain Medina, who demanded to
know what was delaying the platoon. On being told that a large
number of villagers had been detained, Calley said Medina ordered
him to "waste them." Calley further testified that
he obeyed the orders because he had been taught the doctrine
of obedience throughout his military career. Medina denied that
he gave any such order.
[5] One of the collection points
for the villagers was in the southern part of the village. There,
Private First Class Paul D. Meadlo guarded a group of between
30 to 40 old men, women, and children. Lieutenant Calley approached
Meadlo and told him, "`You know what to do,'" and left.
He returned shortly and asked Meadlo why the people were not
yet dead. Meadlo replied he did not know that Calley had meant
that they should be killed. Calley declared that he wanted them
dead. He and Meadlo then opened fire on the group, until all
but a few children fell. Calley then personally shot these children.
He expended 4 or 5 magazines from his M-16 rifle in the incident.
[6] Lieutenant Calley and Meadlo
moved from this point to an irrigation ditch on the east side
of My Lai 4. There, they encountered another group of civilians
being held by several soldiers. Meadlo estimated that this group
contained from 75 to 100 persons. Calley stated, "`We got
another job to do, Meadlo,'" and he ordered the group into
the ditch. When all were in the ditch, Calley and Meadlo opened
fire on them. Although ordered by Calley to shoot, Private First
Class James J. Dursi refused to join in the killings, and Specialist
Four Robert E. Maples refused to give his machine gun to Calley
for use in the killings. Lieutenant Calley admitted that he fired
into the ditch, with the muzzle of his weapon within 5 feet of
people in it. He expended between 10 to 15 magazines of ammunition
on this occasion.
[7] With his radio operator,
Private Charles Sledge, Calley moved to the north end of the
ditch. There, he found an elderly Vietnamese monk, whom he interrogated.
Calley struck the man with his rifle butt and then shot him in
the head. Other testimony indicates that immediately afterwards
a young child was observed running toward the village. Calley
seized him by the arm, threw him into the ditch, and fired at
him. Calley admitted interrogating and striking the monk, but
denied shooting him. He also denied the incident involving the
child.
[8] Appellate defense counsel
contend that the evidence is insufficient to establish the accused's
guilt. They do not dispute Calley's participation in the homicides,
but they argue that he did not act with the malice or mens rea
[evil intent] essential to a conviction of murder; that the orders
he received to kill everyone in the village were not palpably
illegal; that he was acting in ignorance of the laws of war;
that since he was told that only "the enemy" would
be in the village, his honest belief that there were no innocent
civilians in the village exonerates him of criminal responsibility
for their deaths; and, finally, that his actions were in the
heat of passion caused by reasonable provocation.
................................................................................
[9] Enemy prisoners are not subject
to summary execution by their captors. Military law has long
held that the killing of an unresisting prisoner is murder. While
it is lawful to kill an enemy "in the heat and exercise
of war," yet "to kill such an enemy after he has laid
down his arms ... is murder." Digest of Opinions of the
Judge Advocates General of the Army, 1912.
[10] Conceding ... that Calley
believed the villagers were part of "the enemy," the
uncontradicted evidence is that they were under the control of
armed soldiers and were offering no resistance. In his testimony,
Calley admitted he was aware of the requirement that prisoners
be treated with respect. He also admitted he knew that the normal
practice was to interrogate villagers, release those who could
satisfactorily account for themselves, and evacuate the suspect
among them for further examination. Instead of proceeding in
the usual way, Calley executed all, without regard to age, condition,
or possibility of suspicion. On the evidence, the court-martial
could reasonably find Calley guilty of the offenses before us.
................................................................................
[11] [A]ppellate defense counsel
[also] assert gross deficiencies in the military judge's instructions
to the court members [serving as the jury in Calley's trial].
................................................................................
[12] After fairly summarizing the
evidence, the judge gave the following instructions [on the law]
pertinent to the issue:
[13] The killing of resisting
or fleeing enemy forces is generally recognized as a justifiable
act of war, and you may consider any such killings justifiable
in this case. The law attempts to protect those persons not actually
engaged in warfare, however; and limits the circumstances under
which their lives may be taken.
[14] Both combatants captured
by and noncombatants detained by the opposing force, regardless
of their loyalties, political views, or prior acts, have the
right to be treated as prisoners until released, confined, or
executed, in accordance with law and established procedures,
by competent authority sitting in judgment of such detained or
captured individuals. Summary execution of detainees or prisoners
is forbidden by law. Further, it's clear under the evidence presented
in this case, that hostile acts or support of the enemy North
Vietnamese or Viet Cong forces by inhabitants of My Lai (4) at
some time prior to 16 March 1968, would not justify the summary
execution of all or a part of the occupants ... nor would hostile
acts committed [even on] that day, if, following the hostility,
the belligerents surrendered or were captured by our forces.
I therefore instruct you [the military jury], 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.
[15] 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 [as a general rule]. Soldiers are taught to follow orders,
and special attention is given to obedience of 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.
[16] 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.
...............................................................................
[17] Appellate defense counsel contend
that ... the standard stated by the [trial] judge is too strict
and unjust; that it confronts members of the armed forces who
are not persons of ordinary sense and understanding with the
dilemma of choosing between the penalty of death for disobedience
of an order in time of war on the one hand and the equally serious
punishment for obedience on the other. Some thoughtful commentators
on military law have presented much the same argument.
[18] The "ordinary sense
and understanding" standard is set forth in the present
Manual for Courts-Martial, United States, 1969 and was the standard
accepted by this Court. It appeared as early as 1917. Manual
for Courts-Martial, U.S. Army, 1917....
[19] Colonel William Winthrop,
the leading American commentator on military law, notes: ...
Where the order is apparently regular and lawful on its face,
he [the subordinate] is not to go behind it to satisfy himself
that his superior has proceeded with authority, but is to obey
it according to its terms, the only exceptions recognized to
the rule of obedience being cases of orders so manifestly beyond
the legal power or discretion of the commander as to admit of
no rational doubt of their unlawfulness. ... Except in such instances
of palpable illegality, which must be of rare occurrence, the
inferior should presume that the order was lawful and authorized
and obey it accordingly. ... Winthrop's Military Law and Precedents,
2d ed., 1920 Reprint, at 296–297.
[20] In the stress of combat,
a member of the armed forces cannot reasonably be expected to
make a refined legal judgment and be held criminally responsible
if he guesses wrong on a question as to which there may be considerable
disagreement. But there is no disagreement as to the illegality
of the order to kill in this case. For 100 years, it has been
a settled rule of American law that even in war the summary killing
of an enemy, who has submitted to, and is under, effective physical
control, is murder. Appellate defense counsel acknowledge that
rule of law and its continued viability, but they say that Lieutenant
Calley should not be held accountable for the men, women and
children he killed because the court-martial could have found
that he was a person of "commonest understanding" and
such a person might not know what our law provides; that his
captain had ordered him to kill these unarmed and submissive
people and he only carried out that order as a good disciplined
soldier should.
[21] Whether Lieutenant Calley
was the most ignorant person in the United States Army in Vietnam,
or the most intelligent, he must be presumed to know that he
could not kill the people involved here. ... An order to kill
infants and unarmed civilians who were so demonstrably incapable
of resistance to the armed might of a military force as were
those killed by Lieutenant Calley is, in my opinion, so palpably
illegal that whatever conceptional difference there may be between
a person of "commonest understanding" [the proposed
standard that would lower the threshold of liability] and a person
of "common understanding" [the established standard
that extends criminal responsibility to virtually all soldiers],
that difference could not have had any "impact on a court
of lay members receiving the respective wordings in instructions,"
as appellate defense counsel contend. In my judgment, there is
no possibility of prejudice to Lieutenant Calley in the trial
judge's reliance upon the established standard of excuse of criminal
conduct, rather than [applying] the standard of "commonest
understanding" presented by the defense, or by [applying]
the new variable test postulated in the dissent, which, with
the inclusion of such factors for consideration as grade and
experience, would appear to exact a higher standard of understanding
from Lieutenant Calley than that of the person of ordinary understanding.
............................................................................... |
|
Notes & Questions:
1. US war crimes charges were brought against
thirteen officers and enlisted men. Calley was the only one convicted.
He was sentenced to twenty years in prison but was released pending
appeal after three years due to the impact of pretrial publicity
on this sensational case. In 1976, the Army decided not to return
him to custody. He did not serve the remainder of his sentence.
See New York Times, April 6, 1976, p.1. For
monthly "Famous American Trials" website synopsis of
this longest courts-martial in US history, click here, then click
on March 2000. For My Lai Courts-Martial: Links & Bibliography,
click here. For the
Instructions to the military jury, click here.
2. Regardless of what standard is applied, the combat
soldier may have to choose between punishment for obeying a superior's
order and that for disobeying the order. Is it fair to expect
the "simplest" soldier to break ranks with military
discipline and disobey a superior's order in a combat environment?
What can a State do to limit the possibility of such dilemmas
for its combat soldiers? The April 1992 US Department of Defense
Report to Congress suggests one means of using national laws
to ensure the observance of international limitations on State
uses of force. This report was provided under the Persian Gulf
Conflict Supplemental Authorization and Personnel Benefits Act
of 1991. Section 501(b)(12) requires a report that must discuss
the following matters:
.....[T]he role of the law of armed
conflict in the planning and execution of military operations
by United States forces and the other coalition forces and the
effects on operations of Iraqi compliance or noncompliance with
the law of armed conflict, including a discussion of each of
the following matters: (A) Taking of hostages. (B) Treatment
of civilians in occupied territory. (C) Collateral damage and
civilian casualties. (D) Treatment of prisoners of war. (E) Repatriation
of prisoners of war. (F) Use of ruses and acts of perfidity.
(G) War crimes. (H) Environmental terrorism. (I) Conduct of neutral
nations. The Role of the Law of War Report to Congress requirements
are reprinted in 31 International Legal Materials 612 (1992).
3. In 1985, a federal court in Ohio decided that it
had the responsibility to honor Israel's request for the extradition
of "Ivan the Terrible" Demjanjuk. Prior to his naturalization
as a US citizen after World War II, he allegedly murdered tens
of thousands of defenseless people while operating the gas chambers
at the infamous Treblinka concentration camp in Poland in 1942.
An Israeli court later found that there was insufficient evidence
to establish that the defendant was in fact Ivan the Terrible.
The US portion of this case is important for this reason: This
decision is an expression of American case law addressing the
Laws of War. A national civilian court, as well as a military
tribunal, has the power to consider extradition for wartime crimes
in appropriate circumstances. In other words, US law recognizes
the power of both civilian and military tribunals to hear cases
involving war crimes. Matter of Demjanjuk, 603 Fed. Supp.
1468 (No. Dist. Ohio, 1985), appeal dismissed 762 Fed. Rptr.
1012 (6th Cir. 1985). There were several appeals on a variety
of grounds.
4. The UN's International Criminal Tribunal (Yugoslavia)
addressed the increasingly frequent scenario in which paramilitary
civilians are in charge of prisoners and mistreat them in ways
prohibited by Geneva Convention standards. The Tribunal decided
that the principle of superior responsibility is applicable in
any situation in which a superior has effective control over
the persons committing the underlying violations of international
humanitarian law. The Trial Chamber embraced the view of the
International Law Commission that the doctrine of superior responsibility
extends to civilian superiors when they exercise a degree of
control over subordinates similar to that of military commanders.
The Trial Chamber concluded that a civilian superior should be
held criminally responsible for failing to take measures "within
his material possibility" to prevent illegal acts, and not
merely those within his formal competence. Prosecutor v. Delalic,
Mucic, Delic, and Landzo, IT-96-21-T (Nov. 16, 1998) (conviction
of Muslim Bosnians for crimes committed in detention camp against
Bosnian Serbs).
5. US/Korea/Geneva Convention
Accountability (9/99): Reports
surfaced that, during the Korean War, a US Army field commander
ordered his troops to execute hundreds of South Korean civilians
who sought refuge under a bridge near the village of No Gun Ri.
At the time, the troops feared North Korean infiltration, and
were under mortar attack. Both Korea and the US promised an investigation.
The Pentagon's proposal of blanket amnesty--to facilitate a full
accounting of what actually happened--is arguably inconsistent
with recent developments (the establishment of war crimes tribunals
in the 1990s) which place accountability above impunity for war
crimes.
.....In
January, 2001, shortly before leaving office, President Clinton
expressed his regret for this event. An Army report officially
concluded that American soldiers shot and killed fifty (as opposed
to hundreds of) unarmed Korean civilians, who were fleeing from
North Korean forces in the early days of the Korean War. This
study concluded (not surprisingly) that the US soldiers were
not ordered to shoot the civilians. Clinton's remarks
fell short of a formal apology. He told the South Korean President
that the US would erect a monument to the Koreans who fought
with the US during the Korean War. Relatives had sought reparations
from South Korea for years, which was denied because of lack
of proof. Source: NYT News Service & Associated Press
(Jan.12, 2001).
6.
Chechnya Accusation (2/00): The NGO Human Rights Watch
accused Russian troops of killing sixty-two Chechen civilians
in a suburb of the capital city of Grosny. Interviews with survivors
indicated that 100 soldiers raped, robbed, and killed civilians
a few days after rebels fled the city. This was the third such
mass killing incident documented by this New York-based NGO.
7. Indonesian
Trial (5/00): In what is being
called a landmark human rights trial for Indonesia, thirteen
soldiers said they executed twenty-six civilian student activists
under military orders. The trial was initiated by President Abdurrahman
Wahid in April. One soldier testified that when he questioned
the order to shoot unarmed students in the open field to where
they had been taken, he was slapped by his commanding officer--thus
fearing for his life of he did not carry out the orders. Another
witness stated that the soldiers fired in self-defense because
of dozens of people who were attacking the troops with knives
and other sharp weapons. For more details, click
here. |
Three members of Charlie Company
