Gary Solis(author of Son Thang: An American War Crime) begins his book with a short review of the history of military justice (a misnomer, perhaps) since the founding of this country. I had no idea the Code of Military Justice was of such recent vintage: 1950. The last Marine executed was in 1817 (in the Navy it was 1849.)
One astonishing number Solis cites is that there were 1,700,000 courts martial during WW II (pg 4). That's incredible. The changes made to the military justice system were a direct result of the feeling that many of those courts martial were much too subjective and the charges and outcomes at the whims of officers. The system was often extra-legal and officers with legal training played no part until the revision of 1950. "The reforms of 1950 reflected the continuing question of the purpose of military law: is it to enforce discipline or to insure justice? Or both? Can both ends be simultaneously served?"
The soldiers in Vietnam were in a bizarre position. Because of a treaty signed while the French were still there and long before Americans arrived in significant numbers, “The agreement provided that all American forces entering Indochina were to be considered members of the U.S. diplomatic mission with the same legal status as actual members of the U.S. mission of corresponding grade. American military personnel were divided into three categories: senior military members of the U.S. mission with full diplomatic Status; a lesser, undefined category which, significantly, excluded its membership from the civil and criminal jurisdic- tion of Vietnam; and the third category, whose membership was again undefined, but with the legal status of clerical personnel of the diplomatic mission. In 1958. the United States advised the Vietnamese government that it would consider top U.S. military commanders to be in the first category. officers and warrant officers to be in the second, and enlisted men to be in the third category. So, in diplomatic terms, Marine riflemen were considered diplomatic mission clerks.”
Legal officers labored under difficult conditions (not as bad as the troops obviously.) Electricity was unreliable making the required verbatim transcripts taken from recording devices problematic. Language barriers were significant. Vietnam had numerous dialects and translators not easy to find. One Colonel’s first interpreter, a very good one, was a thirteen-year-old boy. But often the lawyers wondered if the interpreters and witnesses were having side conversations while they were being cross-examined in court. Getting witnesses to trials was more than difficult. It often required assigning special patrols to accompany the lawyers into enemy held territory to bring back those willing to testify.
Locating American witnesses was difficult. Infantrymen were often in the field and his company not easily found.Sometimes a witness might have been killed or even rotated back to the United States or even gone AWOL. Communications were spotty.
The definition of war crime was not what one would expect. Killing a South Vietnamese citizen or a non-combatant was not a war crime. It was considered murder since their were from an allied nation and not an enemy who would have been covered under the Geneva Convention. Despite the effects of higher command, there were numerous courts martials of Marines charged with violations of the Geneva Convention in their treatment of prisoners.
The Marines had a shortage of lawyers, but since lawyers were required only for *general* court-martials, non-lawyers were given the responsibility of handling *special* court-martials. These were in-unit disciplinary actions.
Solis (channeling Westmoreland and others) blames rising rates of crimes against the Vietnamese and against American officers on McNamara’s decision to expand the pool of men eligible for the draft. Now men who scored lower on the intelligence tests were available for draft and Solis’s strong suggestion is that the lower standards brought along with them lower morality and higher crime rates. Westmoreland himself said: “Category IV is a dummy. . Give him menial jobs and he is not a troublemaker. But it is awfully difficult to utilize that many category IVs . . . that is important when you start reflecting on the drug syndrome, the fragging.That introduced a weak.minded criminal, untrained element . . When those people came to Vietnam that's when disciplinary problems began on the battlefield.” That sounds a bit too 17th century for my taste.
I was surprised at how the sentences of many convicted Marines were vacated or reduced on appeal for some truly heinous crimes. The case of John D. Potter, Jr. for example who had supplanted the regular patrol leader:
the other Marines followed Potter rather than Vogel, whom they viewed as ineffective. The patrol's Navy corpsman, Hospitalman Jon R. Bretag, later testified: He [Potter] said that this would be a raid instead of an ambush - . . . We are to beat up the people, tear up the hooches and kill, if necessary. . . . He told us to roll down our sleeves, take our insignias off, make sure our covers are on [and] assigned us numbers. He said if you want to get somebody, don't mention his name, call him by number . . . The entire squad moved out. They entered the hamlet of Xuan Ngoc . They seized Dao Quart, whom they accused of being a Viet Cong. and dragged him from his hut. While they beat him, other patrol members forced his wife, Bui Thi Huong, from their hut. They pulled her three year-old child from her arms. Then four of them raped her. A few minutes later three other patrol members shot her husband, her child, her sister-in-law, and her sister-in-law's child, with automatic and semi-automatic rifle fire. Hearing the sister-in-law moan, Potter exclaimed, "Damn, she's still alive!" He fired another burst of automatic fire into her at point blank range. Potter then tossed a hand grenade near the bodies in an attempt to cover the patrols' atrocities and "to make it look good." Next, they shot the rape victim, Bui Thi Huong, and left her for dead. She lived to testify at their courts-martial.
Upon returning to the battalion command post, the company commander sought details of the reported enemy contact:' Suspicious, he ordered their new platoon leader, Second Lieutenant Stephen J. Talty, to go back to the scene of the "contact" with the patrol. Once there, Talty realized what had happened and directed efforts to disguise (my emphasis) what had occurred. As they were doing so, one of the previously wounded chil-
dren was discovered still alive. Potter raised his rifle over the child, saying, "someone count for me." Vogel counted to three as Potter repeatedly slammed his rifle butt into the child's head, killing him.”
Talty later admitted all. Potter was given a life sentence, later reduced to twelve years (he was released in 1978 having served the longest sentence of anyone charged during the Vietnam War) and several others were given long sentences for murder and rape, all of which were later reduced considerably. Talty’s was found guilty of filing a false report. He was fined $500 and dismissed from the Marines, a dismissal that was later revoked.
This book is not for everyone, but if you have any interest in the law during times of armed conflict and the special problems faced by those charged with military justice, you will find it fascinating as did I.
N.B. The Potter case gets its own mention in the The Oxford Companion to International Criminal Justice (
https://books.google.com/books?id=bHVCAgAAQBAJ&pg=PA879&lpg=PA879&dq=lieutenant+stephen+J.+talty&source=bl&ots=ElsnKMfQg4&sig=zCFVNpVzSxSDiDMOtCto1Ho1PJs&hl=en&sa=X&ei=LGa2VMytJIKrggTbl4KoBA&ved=0CCAQ6AEwAA#v=onepage&q=lieutenant%20stephen%20J.%20talty&f=false) The horrific nature of the case is cited as a reason why the military insisted on “trying its own for grave breaches” of the law during armed conflict.
Note Solis’s book is available for free at the Internet Archive: https://ia700404.us.archive.org/10/items/MarinesAndMilitaryLawInVietnamTrialByFire/MarinesAndMilitaryLawInVietnamTrialByFire.pdf