THE ARMY LAWYER War Crimes Edition Judge Advocate General’s Corps Professional Bulletin 27-50-18-03 March 2018 Editor, Captain John Cody Barnes Contributing Editor, Lieutenant Colonel Michael P. Harry and Major Jess B. Roberts Legal Editor, Mr. Sean P. Lyons The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Authors should revise their own writing before submitting it for by The Judge Advocate General’s Legal Center and School, Charlottesville, publication, to ensure both accuracy and readability. The style guidance in Virginia, for the official use of Army lawyers in the performance of their legal paragraph 1-36 of Army Regulation 25-50, Preparing and Managing responsibilities. Correspondence, is extremely helpful. Good writing for The Army Lawyer is concise, organized, and right to the point. It favors short sentences over The opinions expressed by the authors in the articles do not necessarily long and active voice over passive. 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The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge The Army Lawyer may make necessary revisions or deletions without Advocate General’s School, U.S. Army. prior permission of the author. An author is responsible for the accuracy of the author’s work, including citations and footnotes. Unless expressly noted in an article, all articles are works of the U.S. Government in which no copyright subsists. Where copyright is indicated in The Army Lawyer articles are indexed in the Index to Legal Periodicals, an article, all further rights are reserved to the article’s author. the Current Law Index, the Legal Resources Index, and the Index to U.S. Government Periodicals. The Army Lawyer is also available in the Judge The Army Lawyer accepts articles that are useful and informative to Army Advocate General’s Corps electronic reference library and can be accessed lawyers. This includes any subset of Army lawyers, from new legal assistance on the World Wide Web by registered users at http:// attorneys to staff judge advocates and military judges. The Army Lawyer strives www.jagcnet.army.mil/ArmyLawyer and at the Library of Congress website to cover topics that come up recurrently and are of interest to the Army JAGC. at http://www.loc.gov/rr/frd/MilitaryLaw/Army_Lawyer.html. Prospective authors should search recent issues of The Army Lawyer to see if their topics have been covered recently. Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite]. Lore of the Corps Special Edition Introduction ................................................................................................................................................ i What Really Happened at My Lai on March 16, 1968? The War Crime and Legal Aftermath.......1 Observations of a Trial Counsel ...............................................................................................................6 Defending Calley: Recollections of the Military Defense Counsel in the Trial of the United States v. Lieutenant William Calley ........................................................................................................................20 From the Frying Pan into the Fire: The Story of Captain Jim Bowdish and his Defense of SSG David Mitchell, the First American Soldier Tried for Murder at My Lai .........................................23 Fifty Years After My Lai: What Did We Learn? ................................................................................27 My Lai at 50 History of Literature .........................................................................................................29 Military Commissions: Trial of the Eight Saboteurs ..........................................................................34 The Defense of Superior Orders .............................................................................................................39 Prosecuting War Crimes Before and International Tribunal .............................................................54 Getting Left of Boom: How Leadership and Management Work Together to Shape Outcomes ...58 “My Lai at 50” Events at CSIS and the Pentagon ................................................................................63 Ending Remarks by LTG Charles N. Pede ...........................................................................................64 MARCH 2018 • THE ARMY LAWYER • JAG CORPS PROFESSIONAL BULLETIN 27-50-18-03 Introduction Accounts of military history are filled with Soldiers committing inconceivable acts of heroism. This same history is tainted, by a few, who during a time of war decided to act outside the bounds of human decency. In acknowledgment of the 50th anniversary of the My Lai Massacre, The Army Lawyer presents this Special War Crimes edition. The articles in this edition mainly focus on the tragic events that occurred in Vietnam on 16 March 1968. We will learn how those events transpired, how the judge advocates detailed to represent both the government and the accused worked through the aftermath, and how we evolved as an Army from this tragedy. We will also look at a case of eight saboteurs and receive a better understanding of war crimes prosecutions before an international tribunal after World War II. Finally, we will recap our Corps participation in two recent events commemorating the lessons learned from My Lai and receive parting words from The Judge Advocate General, LTG Charles N. Pede. Please enjoy this special edition of The Army Lawyer. John Cody Barnes Editor, The Army Lawyer MARCH 2018 • THE ARMY LAWYER • JAG CORPS PROFESSIONAL BULLETIN 27-50-18-03 i Lore of the Corps What Really Happened at My Lai on March 16, 1968? The War Crime and Legal Aftermath By Fred L. Borch Regimental Historian & Archivist Early in the morning on March 16, 1968, then Second entry into My Lai 4. Yet when they first entered the sub- Lieutenant (2LT) Calley and his platoon were airlifted by hamlet, some platoon members shot a few of the villagers, helicopter to My Lai 4,1 a sub-hamlet of the village of Song while other Soldiers stopped to kill livestock such as cows, My in Quang Ngai Province. They believed that their pigs, chickens, and ducks. Still others searched huts and platoon—and the other two platoons in Company C, 1st buildings for evidence of an enemy presence. The troops Battalion, 20th Infantry Regiment, 11th Light Infantry yelled into the small dwellings (called “hootches”) for their Brigade, 23d “Americal” Division—were about to take inhabitants to come out. If they got no answer from the offensive action against the 48th Viet Cong (VC) battalion. hootches, the Americans threw hand grenades into them. The Americans also believed that since the VC battalion had a base camp near Song My and enemy guerillas had controlled Ultimately, the American Soldiers herded the civilian the area for twenty years, Company C could expect heavy villagers in several locations. Between 30 and 40 people were resistance and would be outnumbered more than two to one.2 collected in a clearing in the center of the sub-hamlet. More were assembled near some rice paddies on the south side of Calley’s unit had not experienced much combat prior to My Lai 4. Still others were gathered together near a ditch on this time, but it had suffered some casualties. In late February the east side of the sub-hamlet. 1968, two Soldiers were killed and thirteen wounded when Some hours after having gathered the villagers together, the company had become ensnared in a mine field. On March Calley approached Private First Class (PFC) Paul D. Meadlo, 14, just two days before the company’s arrival at My Lai 4, a who was watching the Vietnamese. Calley asked Meadlo “if popular sergeant in the company’s second platoon had been he could take care of that group.” Calley then walked away killed and three other men wounded by a booby trap. but returned a few minutes later to ask Meadlo why he had Consequently, the Soldiers faced this upcoming operation not taken care of the villagers. “We are,” Meadlo said. “We against the 48th VC battalion with both anticipation and fear, 3 mindful of the recent injuries to their fellow Soldiers. are watching them.” Calley replied: “No, I mean kill them.” Calley and Meadlo then opened fire with their M-16 rifles on Even though 2LT Calley and his men expected heavy the unresisting, unarmed villagers. All were killed. But this resistance, they entered My Lai 4 without receiving any fire. was only the beginning. Ultimately, 2LT