MILITARY JUSTICE IN VIETNAM: THE RULE OF LAW IN AN AMERICAN WAR
by William Thomas Allison. Lawrence, Kansas: University Press of Kansas, 2006. 256pp. Hardcover. $34.95. ISBN: 9780700614608.
Reviewed by Walter J. Kendall III, Professor of Law, The John Marshall Law School, Chicago, Illinois. 7kendall [at] jmls.edu.
The official history of the Judge Advocate General’s Corp (JAG Corp) says “the primary mission of the Corps is to support the warfighter . . . Most importantly (the JAG Corps) provides the structure and support for maintaining discipline, the foundation of an effective fighting force.” Historian William Thomas Allison, sometimes visiting professor at the Air War College, concludes in this valuable study of the role of the JAG Corp in Vietnam that “if military justice is indeed supposed to be a deterrent (to breaches of discipline), then it did indeed fail” in Vietnam (p.68). The story he tells is a sad and even maddening one.
Allison argues that the civilianization of military justice and the added missions of democracy and nation-building contributed greatly to “the disintegration of U.S. military forces in South Vietnam” (p.67). At the same time, the author praises the JAG lawyers, including his own father who served in the Corps, as “patient, creative, and dedicated” and “critical to averting a complete disintegration of military order” (p.29).
The book begins with a brief history of the Judge Advocate General’s Corps (JAG), which began in a sense when General Washington in 1775 asked Congress to appoint a lawyer to serve with him in the Continental Army. The next chapter outlines the experience of the JAG lawyers on the ground in Vietnam. This is followed by a chapter discussing jurisdictional issues confronted in the military justice system. In a peacetime setting, the United States has jurisdiction over offenses committed by US troops in the line of duty, while crimes committed against citizens of the particular country are technically within the jurisdiction of the local government. Jurisdiction over civilians working with and for the military has been the subject of litigation in US courts (e.g., O’CALLAHAN v. PARKER). The recent Supreme Court opinions in the HAMDI and HAMDAN cases illustrate the continuing urgency of jurisdictional questions in war time.
This is followed by chapters on discipline and court-martials, violations of the laws of war, the drug problem, and on black markets and financial corruption. Allison presents detailed statistical tables and anecdotal stories which bring the statistics to life on Army disciplinary actions (p.71), sentences imposed and actually served in cases of Marines convicted of murdering a Vietnamese (p.85), serious offenses committed by Marines with conviction and acquittal numbers (p.86), marijuana usage (pp.124, 125), heroin cases (pp.126, 128), other dangerous drugs (pp.127, 129), US aid by type (p.143), and black market and legal exchange [*367] rate prosecutions (p.148). There is also an extended discussion of fragging, “the crime that best illustrates the U.S. military crises in Vietnam” (p.78). Allison refers to upwards of 1000 incidents and at least 83 deaths during the three years 1969-1971 (pp.79-80).
In his concluding chapter (pp.168-186), he summarizes a series of both military and civilian studies that are very critical of how the Uniform Code of Military Justice of 1968 worked during the Vietnam conflict. Additional due process rights resulted in long investigations and in many cases where there was insufficient evidence to obtain a conviction. When convictions were obtained, it was not uncommon for appeals to result in reduced sentences. The studies conclude that such a system of punishment “lacks meaningful deterrent power” and was endangering the “ability of the forces to achieve their mission” (p.174). Further, the JAG lawyers “were not given the proper facilities, support, equipment, and hours all of which . . . hobbled not only the lawyers, but justice” (p.179).
Throughout the book, literally from the first page of text to the last, Allison reiterates the notion of nation-building “to instill democratic ideals and capitalistic values, including respect for the rule of law” (p.ix). In that regard, he addresses some very sensitive and important aspects of the Vietnam conflict and perhaps modern warfare generally. He acknowledges “the so-called mere gook rule,” under which serious crimes against Vietnamese “normally” resulted in acquittals (p.86). He points out that race was a major factor in behavioral and disciplinary matters. “Blacks made up 58 percent of the stockade population in southeast Asia, even though they only represented 9 percent of the Army in Vietnam” (p.30). He cites a study of off-duty behavior “suggest(ing) that white soldiers simply transferred traditionally held racial prejudices to Vietnamese, whereas black soldiers tended to ‘sympathize’ with the plight of the Vietnamese as an oppressed and exploited people” (p.86). He presents a summary of another study of the disciplinary and casualty experience of “the infamous Project 100,000, the brainchild of Assistant Secretary of Labor Daniel P. Moynihan and Secretary of Defense Robert McNamara” (p.29). It involved both urban and rural recruits with extremely low induction exam scores. “The death rate among these troops was twice that of the overall rate for U.S. forces” (p.30). At the same time, these troops were court-martialed at a rate 2 to 3 times the overall military personnel rate (p.30).
In an earlier study, one not included in Allison’s bibliography, Peter Maguire argues that “strategic legalism” has been the US policy norm in times of war. Strategic legalism is “the use of laws or legal arguments to further larger policy objectives regardless of facts or laws” (Maguire 2002, at 9) He explains, “Once the public has been served by symbolic justice, post-trial, non-judicial legal devices like pardons, clemency, and parole are used to mitigate the original public sentence” (Maguire 2002, at 67). [*368]
There is a consistent pattern of this strategic legalism throughout Allison’s book. Perhaps the most egregious incident illustrating this involves a fragging incident in which one Marine was killed and two others were injured. The general court-martial proceeding found the perpetrator guilty and sentenced him to death. The convening authority reduced the sentence to hard labor for life and a dishonorable discharge. A subsequent appeal claiming incompetence of counsel was denied. Yet, in the end the perpetrator “was paroled after serving only eight years, then went on to college, earning a degree in criminology” (p.81).
Eerily, Maguire quotes Elihu Root, the Secretary of War under Theodore Roosevelt (1899-1904), referring to the US soldiers in the Philippines: “while he is as stern a foe as ever a man saw on the battlefield, he brings the schoolbook, the plow, and the Bible . . . he is the advance guard of liberty and justice, of law and order, and peace and happiness” (Maguire 2002, at 53-54); and Allison describes those in Vietnam as “the vanguard of the effort to show the Vietnamese that a legal system based on the rule of law could work in their culture” (p.x). He concludes they are “still in the vanguard” (p.168).
In conclusion, reflecting on the issues and incidents discussed in this insightful book, it is difficult to resist wondering: is the “Root” of the problem in Iraq today that there are lessons from Vietnam not yet learned?
History of the Judge Advocate General’s Corps found at www.drum.army.mil/sites/tenants/division/cmdgrp/sja/history.htm .
Maguire, Peter, 2002. LAW AND WAR: AN AMERICAN STORY. New York: Columbia University Press.
HAMDI v. RUMSFELD, 524 U.S. 507 (2004).
HAMDAN v. RUMSFELD, 548 U.S. ___ (2006).
O’CALLAHAN v. PARKER, 395 U.S. 258 (1969).
©Copyright 2007 by the author, Walter J. Kendall III.
Labels: Vol. 17 No.5