UNITED STATES v. CALLEY
U.S. Court of Military Appeals (1973)
......22 USCMA 534, 48 CMR 19

  Three members of Charlie Company
died when the troop walked into an enemy trap in February 1968.
 ..

.................QUESTION 002
Do you think Lt.
. Calley.is being made the scapegoat for.the.actions of others above him or not.(with regard to the My Lai incident)?

.............Yes: 70%
..............No: .12%
..............No opinion: 18%

Survey conducted by Opinion Research Corporation April 5-6, 1971. For full and related surveys, click here.

Author's Note: US Army Lieutenant William Calley was the subject of a 1971 military courts-martial because of his widely-publicized conduct in 1968 during the Viet Nam War. The US Army Field Manual's (AFM) standard for measuring his liability was whether a soldier of "common" understanding would know that an order to summarily execute unarmed civilians is illegal and must be disobeyed. Because this standard applies to all soldiers, it was arguably too easy to convict a soldier of "low-grade" intelligence. Such individuals are not likely to have the capacity to recognize that a superior officer's order should not be followed, because it violates the Laws of War (as expressed in the AFM). They would thus be subject to a hindsight assessment of their conduct, from the perspective of how the "common" (average) soldier would react, when so ordered.
.....Each of the three military appeals judges agreed that Calley had breached the standards set forth in the AFM. The dissenter, who did not question the audacity of Calley's conduct, wrote a separate opinion about the application of the "common man" standard to all soldiers in combat.
.....Calley's appellate defense counsel, and the dissenting judge, believed that the AFM's legal standard should be modified, to avoid convictions of "low-grade" (commonest) soldiers--whose training for combat would render them quite unlikely to disobey any superior order. Calley's lawyer thus argued that continued application of the AFM's "common man" standard was unfair to such soldiers. The defense strategy was that if the Manual's across-the-board legal barometer for liability were impermissibly high, then this tribunal should declare that some other (more lenient) standard should apply to the soldier of lowest intelligence--rather than the same standard for all soldiers. If a majority of the tribunal would have been willing to accept this argument, then Calley (who would likely be guilty under any standard) would have been convicted under a legal standard which expected too much under these war time circumstances.
.....The textbook's author has supplied paragraph numbers, bolding, and italics to several passages. Most citations have been omitted.]

..........................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.
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[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.
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[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].
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[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.
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[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.
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.....The opinion of another military judge, who concurred in the conviction of Lieutenant Calley, is omitted. In his opinion: "Contrary to Judge Quinn, I do not consider that a presumption arose that the appellant knew he could not kill the people involved. The Government ... is not entitled to a presumption of what the appellant knew of the illegality of an order."

DARDEN, Chief Judge (dissenting):
[a] Although the charge [instructions to the jury] the military judge gave on the defense of superior orders was not inconsistent with the [US Army Field] Manual treatment of this subject, I believe the Manual provision is too strict in a combat environment. Among other things, this standard permits serious punishment of persons whose training and attitude incline them either to be enthusiastic about compliance with orders or not to challenge the authority of their superiors. The [current] standard also permits conviction of members who are not persons of ordinary sense and understanding.
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[b] My impression is that the weight of authority, including the commentators whose articles are mentioned in the principal opinion, supports a more liberal approach to the defense of superior orders. Under this approach, superior orders should constitute a defense except "in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal."

[c] While this test is phrased in language that now seems "somewhat archaic and ungrammatical," the test recognizes that the essential ingredient of discipline in any armed force is obedience to orders and that this obedience is so important it should not be penalized unless the order would be recognized as illegal, not by what some hypothetical reasonable soldier would have known, but also by "those persons at the lowest end of the scale of intelligence and experience in the services." This is the real purpose in permitting superior orders to be a defense, and it ought not to be restricted by the concept of a fictional reasonable man so that, regardless of his personal characteristics, an accused judged after the fact may find himself punished for either obedience or disobedience.
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[d] But while humanitarian considerations compel us to consider the impact of actions by members of our armed forces on citizens of other nations, I am also convinced that the phrasing of the defense of superior orders should have as its principal objective fairness to the unsophisticated soldier and those of somewhat limited intellect who nonetheless are doing their best to perform their duty.
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[e] In the instant case, Lieutenant Calley's testimony placed the defense of superior orders in issue, even though he conceded that he knew prisoners were normally to be treated with respect and that the unit's normal practice was to interrogate Vietnamese villagers, release those who could account for themselves, and evacuate those suspected of being a part of the enemy forces. Although crucial parts of his testimony were sharply contested, according to Lieutenant Calley, (1) he had received a briefing before the assault in which he was instructed that every living thing in the village was to be killed, including women and children; (2) he was informed that speed was important in securing the village and moving forward; (3) he was ordered that under no circumstances were any Vietnamese to be allowed to stay behind the lines of his forces; (4) the residents of the village who were taken into custody were hindering the progress of his platoon in taking up the position it was to occupy; and (5) when he informed Captain Medina of this hindrance, he was [again] ordered to kill the villagers and to move his platoon to a proper position.

[f] In addition to the briefing, Lieutenant Calley's experience in the Pinkville area caused him to know that, in the past, when villagers had been left behind his unit, the unit had immediately received sniper fire from the rear as it pressed forward. Faulty intelligence [information] apparently led him also to believe that those persons in the village were not innocent civilians but were either enemies or enemy sympathizers. For a participant in the My Lai operation, the circumstances that could have obtained there may have caused the illegality of alleged orders to kill civilians to be much less clear than they are in a hindsight review.

[g] Since the defense of superior orders was not submitted to the military jury under what I consider to be the proper standard, I would grant Lieutenant Calley a rehearing [so that his culpability would be determined under the dissenting judge's proposed "commonest" or simplest soldier standard].

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.

 Go To Chapter 10, Section 10.6, text p.501, after Calley Court-Martial
....................... reference to this web page.

..Last rev: 05/23/06
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