On March 16, 1968, Charlie Company, 1st Battalion, 20th Infantry Regiment, 11th Brigade, Americal Division, staged an offensive on the Vietnamese village of My Lai. The company had encountered several booby traps, bombs and minefields in the previous weeks, and had lost a number of their company without actually seeing the enemy; although little information was available about the movement of the Viet Cong, the US command believed the VC had gone to ground with sympathizers in the four hamlets that made up the village of My Lai. In the pre-mission briefing, many soldiers claimed later, Cpt. Medina, the commander of Charlie Company, told the company, “Well, boys, this is your chance to get revenge on these people… it’s open season. When we leave, nothing’s going to be living.” (Hersh My Lai 41)
When the day was over, up to 504 Vietnamese villagers, out of a previous population of about 700, were dead. Charlie Company had not encountered the massive VC resistance they were expecting; only 3 weapons were captured, and the only American casualty was a soldier who shot himself in the foot. Although reports from after the war reveal that there were in fact Viet Cong soldiers in the area, they had not set up a base in the village, and when the American soldiers entered the village expecting a firefight, they found only women, children and the elderly, many of them calmly cooking breakfast over outdoor fires. The villagers knew that American forces routinely assumed that anyone running or hiding must be VC, so they docilely cooperated when rounded up in the village square. Those who came to the square were shot en masse, while soldiers went around and destroyed every home and their inhabitants. Many of the Vietnamese who survived the massacre describe hiding under the bodies of the slain in order to escape detection. Anecdotes and photographs of the event, taken by the official Army reporter who accompanied Charlie Company, clearly show that very young children were among those killed.
Almost a year after the massacre at My Lai, a soldier wrote his congressman with what he knew of the incident, and investigations began. Although 26 soldiers were indicted, the only person to stand trial was Lt. Calley, the platoon leader of Charlie Company’s first platoon. He was convicted of murdering or causing those under his command to murder 22 civilians and sentenced to life in prison. He served three and half years under house arrest before he was pardoned.
Thirty-five years later, American soldiers were again embroiled in events that shocked the public. Army investigations confirmed 44 specific incidents from 20 September 2003 to 13 December 2003 of detainee abuse by American guards at the Abu Ghraib prison in Iraq. Detainees were physically abused, terrorized with dogs, subjected to degrading treatment such as being stripped naked and forced to perform simulated sex acts, kept in isolation and photographed for the amusement of the guards. Those photographs were passed on to military authorities and eventually published in the American and international press, sparking widespread outrage.
Nine military police, all of them of low enlisted rank, were charged with abuse of detainees and tried. Not all of them received prison sentences; the harshest sentence went to the man considered by many to be the ringleader of the group, Charles Graner, a Reservist who worked as a prison guard in civilian life. He was sentenced to ten years, which he is currently serving at Fort Leavenworth, for physical abuse of detainees. Many other American personnel have not been brought up on charges. In several of the most severe incidents of abuse, including the death of a detainee during an interrogation, and allegations of sexual abuse and rape of several male and female detainees by soldiers and civilian contractors, no one has been charged (Fay 10).
These incidents raise a number of questions about the conduct of American soldiers and the effects of American policy in wartime. It is not known whether or not these two heavily publicized cases are representative of the behavior of American soldiers, or whether they are, as our leaders have claimed, the work of aberrant sociopaths. Our soldiers have committed other atrocities, but an accurate and complete accounting of American war crimes is either nonexistent or has been kept secret. However, in these two cases the authorities publicly admitted that American soldiers had acted improperly, and trials were held openly. Attempts at covering up what happened failed, and at least on a limited basis, justice was done. What set these two cases apart and forced the hand of the American military? What caused these soldiers to be prosecuted in open courts of law?
The American military has systems in place to prosecute war crime within the military legal system. The press also acts as a watchdog, regulating behavior and exposing misconduct in the military like it does in other branches of government. Although they played a significant part, these institutions were not sufficient to guarantee the public trial of American soldiers. At both My Lai and Abu Ghraib, it was the actions of individual people that changed the course of history.
The Role of the Chain of Command
Traditionally, misconduct is dealt with by the chain of command. International law, as codified in the Yamashita decision post-WWII, dictates that commanders who do not control their troops and either do not prevent war crimes from occurring or do not punish and suppress war crimes after they have occurred are legally culpable of the same crimes if the commander “knew or should have known” that crimes were committed (Smidt 184). United States Army Field Manual 27-10 also states that commanders may be held legally responsible for war crimes committed by their troops:
Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof. (FM 27-10, para. 501)
Clearly, the chains of command of the 11th Brigade and the 320th MP Battalion should have stopped the crimes that were committed and followed the appropriate procedures at the time to punish the perpetrators. However, they did not. In Vietnam, there is evidence that the chain of command willfully covered up the crime; 12 officers were court-martialed on charges relating to a cover-up, but none were convicted. In Iraq, many elements of the chain of command were either incompetent or intentionally looked the other way when abuse was reported. Why?
In Vietnam, the US could have declared itself not bound by the Geneva Conventions; the treaties allow this when fighting a force that has not signed the Conventions, and North Vietnam had not. The US chose instead to declare that it was bound and acting according to Geneva. In Iraq and the War on Terror, President Bush has declared that the US is not bound by Geneva because our opponents are not signatories and are not a conventional army. However, American forces are to treat prisoners and “unlawful combatants” humanely and in accordance with Geneva. All political posturing aside, the US did not keep to the Geneva Conventions in Vietnam, and it has not in Iraq. This failure to abide by the law of war on a policy level made it almost impossible for commanders to control their troops.
In his book Nuremburg and Vietnam: an American Tragedy, Telford Taylor, and American general and the chief prosecutor at the Nuremburg war crimes trials, outlines several instances in which the United States clearly violated the Geneva Conventions in Vietnam. He lists forcible transfer of civilians, bombing in an effort to kill individual people, transferring prisoners to a regime that is known to use torture, and the shooting of prisoners both on the battlefield and in captivity. All of these are violations of Geneva.
Article 47 of the fourth Convention prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory” unless “ security of the population or imperative military reasons so demand” and those evacuated must be “transferred back to their homes as soon as hostilities in the area in question have ceased.”(Taylor 146) A key American strategy in Vietnam was to remove entire countryside populations of South Vietnamese to refugee camps and then destroy their homes, in an effort to smoke out the Viet Cong or at least remove their rural base of support. This strategy not only required the forcible transfer of large numbers of people for a strategic, non-emergency military plan, but it destroyed their ability to return to their homes, a clear Geneva violation.
Bombing of Vietnamese villages in retaliation for harboring VC or in an effort to kill individual guerrillas suspected to be hiding inside, he says, is morally comparable to what happened at My Lai, yet it is an accepted and common practice. Taylor asks, “Is there any significant difference between killing a babe-in-arms by a bomb dropped from a high-flying aircraft, or by an infantryman’s point-blank gunfire?” (Taylor 142).
Article 12 of the third Convention requires signatories to determine that an ally will treat prisoners in accordance with the Convention before transferring prisoners to the ally’s custody. If it is discovered that the ally is not following the Convention, the signatory must make all efforts to re-obtain custody of any prisoners that were transferred. However, the United States was aware that the South Vietnamese regularly and extensively tortured prisoners in their custody, but still regularly transferred prisoners of war to the Vietnamese (Taylor 150).
The most egregious violation of the laws of war that Taylor references is the killing of prisoners, not only the denial of quarter in the heat of battle, but also during interrogations and in prisons. During the trial of US Army Lt. Duffy for the murder of an unarmed prisoner, “four other lieutenants from the same battalion testified that their instructions were to take no prisoners in combat, and that their superiors laid primary stress on the body count.” (Taylor 151)
Taylor argues that the American failure to follow the Geneva Conventions created an environment in which soldiers were encouraged to do what it took to get the job done whether or not it was legal by international standards. This atmosphere made it impossible for the chain of command to take proper steps to prosecute war crimes. If soldiers were brought to trial by their commanders as Army regulations require, the commanders who gave the orders would be brought to the attention of the legal system as well. Military leaders who prosecuted soldiers for acting in an environment they created would either find themselves also prosecuted, or would find that they had undermined their own authority to the point that military discipline would break down. The policy and strategic failures of the chain of command in Vietnam made effective prosecution impossible.
The situation at Abu Ghraib was somewhat different. Significantly, the United States has announced that in the War on Terror many of the people captured by the US are not prisoners of war, they are “unlawful combatants,” and therefore the United States is not bound by the Geneva Conventions in its dealings with these prisoners. Also, although many of the policies and directives of the US Army command on the ground in Iraq were in accordance with international law, the 372nd MP Company at Abu Ghraib had a singularly dysfunctional and incompetent chain of command, which greatly contributed to the abuses and played a role in how the perpetrators were caught, investigated and punished.
On February 7th, 2002, President Bush issued a memo stating that the Geneva Conventions did not apply in the war with Al-Qaeda, but that prisoners should be treated humanely, in accordance with the principles of the Conventions. From that point to mid-2003 specific interrogation tactics were authorized, banned, re-authorized and re-banned across the theater of operations. Different tactics were authorized in Guantanamo and Afghanistan than in Iraq, but the personnel cycled from one place to another, spreading techniques. According to the Final Report of the Independent Panel to Review Department of Defense Detention Operations, “the existence of confusing and inconsistent interrogation technique policies contributed to the belief that additional interrogation techniques were condoned.” (Schlesinger 13)
The soldiers who have been prosecuted for the abuses at Abu Ghraib themselves have testified that they were doing their jobs as they understood it. SGT Davis told investigators that everything was done at the direction of military intelligence, and that when Graner and Frederick abused prisoners, they got compliments from MI on a job well done. Spc. Harmon, who appears in some of the pictures, said that many of the abuses were an attempt to keep detainees awake as part of a sleep deprivation strategy. “MI wanted to get them to talk. It is Graner and Frederick’s job to do things for MI and OGA to get these people to talk” she said (Hersh Chain of Command 30). OGA is a reference to other government agencies, including the CIA, who were operating in Abu Ghraib in the high-value target section where the abuses occurred.
Professor Alfred McCoy, an expert on interrogation technique and the effects of torture, wrote an article for the Boston Globe analyzing the pictures from Abu Ghraib. He makes the argument that the images from Abu Ghraib fit into the CIA interrogation paradigm. The most effective interrogation technique discovered by the CIA consists of sensory deprivation and disorientation, which can include sleep deprivation and psycho-social disorientation such as sexual humiliation, combined with “self-inflicted” pain such as forcing a prisoner to stand with his arms outstretched for long periods of time. Such techniques are more effective for interrogation than traditional torture because they put the prisoner in an unstable state of mind and reduce his mental defenses. In Professor McCoy’s view, the photographs he has seen are evidence that the soldiers at Abu Ghraib were following instructions from the CIA and other government agencies which were conducting interrogations in the prison. (McCoy)
This climate greatly hindered the effort to punish abuses at Abu Ghraib. According to the Independent Panel, “the weak and ineffectual leadership of [the commanders at Abu Ghraib] allowed the abuses” and “the commanders of both brigades either knew, or should have known, abuses were taking place.” (Schlesinger 47). According the investigation conducted by Maj. Gen. George Fay, “Leaders in key positions failed to properly supervise the interrogation operations… systemic problems and issues also contributed… [these] include inadequate interrogation doctrine and training, an acute shortage of MP and MI soldiers, the lack of clear lines of responsibility between the MP and MI chains of command, the lack of clear interrogation policy for the Iraq Campaign, and intense pressure felt by the personnel on the ground to produce actionable intelligence” (Fay 42). The leadership failures allowed the abuses to continue for several months before any action was taken.
The Influence of Publicity
Shortly after the story of the abuses at Abu Ghraib was broken in the press, the New York Times published an article by Susan Sontag, author and intellectual. The article was titled “Regarding the Torture of Others,” and it discussed the abuses in light of the photographs that had been published. Sontag, who has written extensively on photography and the effects photographs have in modern society, makes the argument that it is quite possible that the abuses would never have been prosecuted if the photos had not been published. “It seems [the pictures] were necessary to get our leaders to acknowledge that they had a problem on their hands,” she writes, making the claim that “it seems doubtful that [humanitarian] reports were read by President Bush or Vice President Dick Cheney or Condoleezza Rice or Rumsfeld. Apparently it took the photographs to get their attention… it was the photographs that made all this “real” to Bush and his associates” (Sontag).
Sontag goes on to quote Senator John Warner, R-Virginia, as suggesting that all photographs taken by soldiers should be censored. Much of the political reaction to the Abu Ghraib photos that Sontag describes treats the photographs as the problem instead of the actual abuses; politicians suggest that publishing photographs critical of the war is a disservice to America and could endanger American servicemen overseas. She quotes Rumsfeld demanding that the photographs be sequestered as evidence in criminal cases, claiming that publishing them could endanger the prosecution of the very abuses they depict.
Sontag shows a poor understanding of the events at Abu Ghraib and the course of the prosecution; she seems to be unclear about what exactly happened at the prison, and swallows whole the idea that the abuses were committed by individual soldiers acting out perverted fantasies against the wishes of their chain of command. However, it is difficult to argue that publicity, particularly vivid publicity like the photographs from Abu Ghraib, has no effect whatsoever on decisions made by military and civilians leaders in the course of a war crimes trial. Seymour Hersh, in his book on the events at My Lai 4, also notes suspicious timing in the establishment of a Pentagon investigation into the massacre and the subsequent cover-up by the battalion. “It came eleven days after the world first learned of the tragedy at My Lai 4,” he notes, suggesting that before receiving such massive publicity, the Pentagon was content to prosecute only low level soldiers, not make institutional changes (Hersh My Lai, 170).
While it seems reasonable to suggest that images of war crimes will inflame public opinion and motivate lawmakers to set up investigative panels, in neither the case of the My Lai massacre nor the Abu Ghraib abuses was publicity a major impetus for the prosecutions. In fact, in both cases, formal criminal investigations began before the crimes were made public.
As Sontag would have it, photographs of an event make it real in the eyes of the public, but the facts don‘t hold up that interpretation. There were photographs of the My Lai massacre available: Ronald Haeberle worked as a photographer for the Army and was attached to the 11th Brigade. He accompanied Charlie Company to My Lai and took several rolls of film, both in black-and-white for the Army and in color with his own camera. When he was discharged, he developed and showed his photos in a slideshow that he played for anyone who would watch. Haeberle was disturbed by what he had seen and wanted it to be made public, but as he said in his interview with Hersh, “[The pictures] caused no commotion. Nobody believed it. They said Americans wouldn’t do this.” (Hersh My Lai 121) The national press didn’t pick up the story until November 12th, 1969, almost seven months after the criminal investigation began.
Photographs may have had more influence in the Abu Ghraib case. When criminal investigations began, no photographs had been made public, but investigators were aware of the possibility that the photographs might be leaked. It is impossible to say whether or not the Pentagon was motivated by a desire to correct the problem as a way to limit the damage that might be done by eventual publication of the photos; certainly when people outside the military first saw the photos, there was an uproar.
However, there are indications that the Army’s Criminal Investigation Division, or CID, treated the photos as evidence rather than a publicity disaster. Spc. Darby gave the photos to his local CID division on Jan 13th, 2004, and within hours CID agents were investigating. “It began with a knock on [SSG Frederick’s] door by agents of the Army C.I.D. at two-thirty in the morning of January 14th” and within two weeks, Maj. Gen. Antonio Taguba was conducting an exhaustive review of events and policies at Abu Ghraib prison (Hersh Chain of Command 25-26). Article 32 proceedings, the preliminary to a court-martial, were begun for seven soldiers in early April, 2004. The first public broadcast of the photos was not until 28 April 2004, on CBS’s 60 Minutes II; they were published in The New Yorker several days later.
The Power of the Whistleblower
In the days after the My Lai massacre, several Charlie Company soldiers spoke with their commanders about what they had seen; the radio control officer had a tape of the radio communications from the day and the tape was heard by many in battalion headquarters. Col. Oran Henderson, commanding officer of the 11th Brigade, and Lt. Col. Barker, the Task Force commander, both interviewed soldiers about specific incidents; Col. Henderson conducted an informal investigation. Both officers concluded that no misconduct had occurred, and Col. Henderson reported his investigation and findings to his superior, General Koster, at Americal Division. In May 1968 Col. Henderson was ordered by Gen. Koster to conduct a formal inquiry into Vietnamese reports of civilian killings. This inquiry produced a paper that acknowledged that several civilians had been killed but cleared anyone of legal violations.
The issue rested there until Ronald Ridenhour, an enlisted soldier who was not a part of Charlie Company but had heard about the massacre from Charlie Company soldiers with whom he had served, decided to do something with the information he had. In March 1969, a year after the massacre, he wrote a letter and mailed 30 copies to various political figures: President Nixon, sixteen Senators and several Congressmen, the Joint Chiefs of Staff and the Pentagon, and the chaplains of the Senate and the House of Representatives. Rep. Morris Udall of Arizona, Ridenhour’s congressman, took a personal interest in the letter. He pulled in favors to enlist the help of senior party members, and put political pressure on the Army to investigate the matter.
In early April, the Secretary of Defense also recommended that the Army begin an investigation, and on April 23 the case was turned over to the Inspector General’s office. The IG assigned Col. Wilson to investigate the case, and on September 5th Lt. Calley was charged with premeditated murder of 109 Vietnamese. Ridenhour did what the 11th Brigade chain of command and the international media could not do: he broke open the case of My Lai and began the chain of events that led to the trial of Lt. Calley for war crimes. Without his letters, the support of Congressman Udall, and the conscientious work of Col. Wilson, it is possible that no one would ever have been charged with a crime for the My Lai massacre.
The chronology of the investigation into the Abu Ghraib abuses was remarkably similar. Soon after the 320th MP Co was assigned to Abu Ghaib, human rights organizations, including Human Rights Watch and the International Committee of the Red Cross, complained about the treatment of prisoners in US detention facilities across Iraq. In response, Army Maj. Gen. Donald Ryder was directed to carry out a study of military detention operations. His report was sharply critical of Abu Ghraib, but it fell short of recommending changes in policy or the punishment of individuals. His investigation covered Abu Ghraib while some of the abuses were occurring, and according to Seymour Hersh, it was “at best a failure and at worst a cover-up” (Hersh Chain of Command 29). No procedural or disciplinary action was taken as a result of Gen. Ryder’s report.
That might have been the end of the matter, but Spc. Joseph Darby, an associate of Staff Sergeant Frederick, discovered the now infamous pictures on a CD he borrowed from SSG Frederick, and gave a copy of the CD to Army CID investigators, along with a sworn statement. The provision of the pictures spurred swift action by CID, and they immediately began an intensive inquiry into the Cell Block 1 night shift crew featured in the pictures. Six days later, Lt. Gen. Ricardo Sanchez, the commander of US military forces in Iraq, ordered an investigation into the abuses. Maj. Gen. Antonio Taguba headed that investigation, revealing what Gen. Ryder did not. Gen. Taguba’s conclusions resulted in the prosecution of nine soldiers for prisoner abuse.
Once the evidence traveled beyond the immediate chain of command at Abu Ghraib, the Army was much more willing to prosecute misconduct, but the actions of Spc. Darby and Gen. Taguba were nonetheless essential to the course of prosecution. Without the information volunteered by Spc. Darby, at the very least the abuses would have been undiscovered for a longer period of time, possibly forever; without the honesty in investigation by Gen. Taguba the abuses may have been swept under the rug.
Historically in the American military, conditions have been unfavorable for acknowledging war crimes. Often, the media is unable to expose crimes because newsmen aren’t on the front lines, or are held back by a sense that it is not patriotic to criticize the war effort. Military commanders may feel that the crimes were justified or that it would be better for the Army to take care of the matter quietly, or they may be worried about their own careers. Whatever the reasons may be, the systems in place to ensure the prosecution of war crimes are susceptible to failure.
However, it is possible to ensure that a crime is prosecuted. In both these two famous cases, it was the actions taken by individual witnesses that brought down American war criminals. Ronald Ridenhour and Joseph Darby were not men of power, they were not newspapermen or generals, but they spoke up for what they knew was right, and that made all the difference.
This is not an answer that is very satisfactory on a political or policy level. Certainly there are things that could be done to improve the way the military reacts to war crime. Approved strategy and tactics should not encourage violations of the law of war; this would not only reduce the number of war crimes committed but would also create an environment in which commanders are not forced to choose between upholding the authority of the Department of Defense and prosecuting war crime. Officers and enlisted soldiers should be trained in both the laws of war and the history of war crime in modern warfare to prepare them for what they might face. The Uniform Code of Military Justice requires that any soldier who is given an illegal order must disobey it, and any soldier who witnesses a war crime must report it; these policies must be emphasized both in training and on the battlefield.
The American military has always been a bastion of idealism. America, more than any other nation, is a concept, not just a group of people, and American wars, whatever their motivations, have always been fought under the banner of truth and justice. If America is to attain the ideal of being a power that is about freedom and equality and the rule of law not personality, American military might must be based in the law of war. Each individual soldier must be educated in his responsibility to this goal if we are to have a chance of achieving it.