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Vietnam Studies Law at War in Vietnam 1964-1973

Vietnam Studies Law at War in Vietnam 1964-1973

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Published by Bob Andrepont

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Published by: Bob Andrepont on Feb 10, 2011
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The evolution of a military justice organization for Vietnam was
determined by the fact that MACV was a unified subcommand under
the Pacific Command. This meant that the Commander, U.S. Mili
tary Assistance Command, Vietnam, commanded all Army, Air
Force, Navy, and Marine Corps units in Vietnam, and command
headquarters was comprised of members of each of the services.
Within each service, the rules prescribing the authority to convene
general courts-martial were contained in service directives promul
gated at the department level of the service. Rules for convening
special and summary courts-martial were issued by MACV. In Viet
nam the commanders of the Army, Navy, Air Force, and Marine
elements exercised jurisdiction over their respective services. Within
MACV headquarters, an officer from each service was designated
commanding officer for all headquarters personnel of his service.
Few serious crimes were committed by troops in Vietnam prior
to 1965, and the Military Assistance Command was not staffed to
administer a heavy volume of military justice cases. There were few
U.S. lawyers in Vietnam, military judges were flown in from Okinawa
as needed, and there was no military confinement facility for U.S.
troops in Vietnam. Before March 1965 only summary and special
courts-martial were tried in Vietnam, and these were restricted to
cases in which only U.S. military personnel were parties and no
Vietnamese witnesses were required. On 10 March 1965 the Secretary
of the Army authorized the Commanding Officer, U.S. Army Support

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LAW AT WAR

Command, Vietnam, to convene general courts-martial. The major
U.S. Army units which began arriving in mid-1965 brought with
them their own courts-martial jurisdiction and their own judge
advocate officers to administer the military justice and other legal
programs of the command.
Headquarters, U.S. Army Vietnam, was activated at Long Binh
in 1966, and took over from the Military Assistance Command direct
responsibility for co-ordinating and administering the military jus
tice program in Vietnam for the Army. General Westmoreland, Com
mander, Military Assistance Command, was also Commanding
General, U.S. Army, Vietnam. The day-to-day operations of U.S.
Army, Vietnam, were directed by Brigadier General John Norton,
Deputy Commanding General ,who was appointed by General West
moreland. U.S. Army, Vietnam, was responsible for providing con
trol, service, and support for all U.S. Army forces that comprised the
Army component of the Military Assistance Command. As new Army
units arrived in Vietnam, they were assigned to U.S. Army, Vietnam.
Army judge advocate replacements arriving in Vietnam were assigned
directly to MACV or to U.S. Army, Vietnam, with the overwhelming
majority going to U.S. Army, Vietnam, where they were reassigned
to specific units. At the peak of the buildup in 1969 there were 135
Army judge advocate officers in Vietnam. Of these, 128 were provid
ing legal support for units of U.S. Army, Vietnam, and only 7 were
assigned to U.S. Military Assistance Command, Vietnam. The Air
Force, Navy, and Marine Corps continued to administer their respec
tive military justice programs with their own attorneys.

With the rapid troop buildup, the military attorneys trying
courts-martial in Vietnam labored under a staggering case load.
(See Appendix K.) Time imposed unrelenting pressure on all who
were involved with a case. Given the twelve-month tour of duty in
Vietnam, it was an unusual case that did not involve at least a few
key persons who were due to rotate back to the United States in a
short time. Because the Army was reluctant to hold people in Vietnam
beyond their rotation dates, or to have them returned from the
States for any but the most serious cases, justice in Vietnam had to be
swift if there was to be justice at all. Under the best of conditions
the preparation of a case for trial requires a formidable amount of
work and a reasonable amount of time. In the Vietnam war zone,
there were aggravations enough to frustrate the most placid attorney,
and the simplest cases sometimes required more work and time than
had been anticipated. Judge advocates were not immune to the
turmoil caused by the twelve-month rotation cycle, and this, coupled
with transfers within Vietnam from one unit to another, meant that
the offices of the judge advocates often suffered from a high turnover
rate of legal and clerical personnel.

DISCIPLINE AND CRIMINAL LAW

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Clerical personnel generally had little or no preparatory legal
training; essential office equipment was apt to be in short supply
from time to time; and it was not unusual for an attorney or clerk
to spend hours on the telephone trying to get through to a base in
another part of Vietnam in order to obtain needed information. The
search for the location of participants in trials was often frustrating,
and the co-ordination necessary to bring all elements together at the
right time and place was difficult and sometimes impossible to
achieve.

Of course, not all crimes were committed at the major base camps.
If an offense occurred in the field or at an artillery fire support base
in a remote jungle clearing, judge advocates went to the scene to
interview witnesses or examine evidence. Security conditions seldom
permitted surface travel, and air transportation was at a premium,
with the highest priorities naturally given to tactical, logistical, and
command requirements.
Interviewing witnesses posed some special problems. If the wit
nesses were all from one unit and that unit was in the field, com
manders were understandably reluctant to relieve the men from an
operation and return them to base camp for an interview. The
alternative solution of bringing the trial and defense counsel, and
sometimes the accused, an investigating officer, and a stenographer
out to the field to interview the witnesses often was not feasible. If
the witnesses were from several different units, as sometimes hap
pened if the offense occurred at a major base or rest and recreation
center, co-ordination with each of the units was necessary to obtain
interviews. Securing physical evidence which required laboratory
analysis was also difficult. If a case required analysis of ballistics or
drug samples, material usually had to be sent to Saigon or Japan, and
sometimes weeks passed before the test results were returned.
Transmitting the required paperwork up and down the chain of
command could be a frustrating and lengthy process where units
were spread all over an entire corps area and commanders changed
locations frequently. Transcribing the volumes of testimony from
investigations and trials was a tedious, time-consuming job for the
hastily trained court-reporters who prepared the records of trial.
Trials involving Vietnamese witnesses added another dimension.
In many cases it was difficult to locate civilian witnesses, even with
the assistance of the National Police. When Vietnamese witnesses
were available, there was frequently a communication problem
because of the difference in language and culture. Sometimes an
offense did not come to light until long after the incident had
occurred. Investigation then became extremely difficult, since there
was a high probability that essential evidence or witnesses were no

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longer available, or that some of the principal suspects had been dis
charged and were no longer subject to military jurisdiction.
Most cases involving Vietnamese victims were investigated and
tried as common law crimes because larceny, assault, rape, and
murder are offenses against the U.S. Uniform Code of Military
Justice regardless of the nationality of the victim.
My Lai was popularly regarded as a "war crime" in the sense
that unarmed Vietnamese civilians were murdered by U.S. troops
during a combat operation. Technically, of course, the killing of
these South Vietnamese people was not a war crime. The victims
were citizens of an allied nation, not enemies protected under the
Geneva Conventions, but citizens protected by the law of Vietnam,
and the perpetrators were U.S. soldiers, governed by the U.S. Uni
form Code of Military Justice. Within the scope of the Uniform
Code of Military Justice, the My Lai murders were not legally dis
tinguishable from other homicides—the My Lai cases required the
same investigation, the same administrative processing, the same type
of evidence, and the same standards of proof as any other homicide
case tried under the code. The My Lai case first came to light in the
United States, and the initial investigation was conducted by agents
of the Inspector General and the Army Criminal Investigation Divi
sion. When investigators, counsel, and accused began arriving in
Vietnam to obtain statements of witnesses and other evidence, the
MACV Staff Judge Advocate was asked to provide co-ordination
and support for those having legitimate interest in the case. In addi
tion to being the initial point of contact for visiting groups concerned
with My Lai, the MACV Staff Judge Advocate also maintained
liaison with the Vietnamese colonel, who was himself an attorney,
from the Joint General Staff, whose authorization was required
before any Americans could interview any Vietnamese concerning
the case.

Headquarters, Military Assistance Command, Vietnam, was not
a courts-martial convening authority and its judge advocates were
seldom involved in the trial of courts-martial. The MACV Staff
Judge Advocate assisted the Commander, Military Assistance Com
mand, in establishing legal policies applicable to the entire U.S.
command, in devising jurisdiction organization for the administra
tion of military justice within the command, and in monitoring the
justice program to promote equal application of law throughout the
command. The MACV Staff Judge Advocate also co-ordinated with
appropriate Vietnamese officials on criminal problems of interest to
both governments, such as black market activities, currency manipu
lation, and drug violations.

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DISCIPLINE AND CRIMINAL LAW

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