law banning the prescription and use of birth control. the supreme court ultimately ruled the statute to be unconstitutional and, in the process, established a right to privacy that is still evolving today. our guests law professor at george mason's university's law school and the associate dean for research and law professor at temple university. watch "landmark cases," monday. and join the conversation. our hash tag is landmarkcases. and follow us @c-span. we have resources on our website for background on each case. the "landmark cases" companion book, a link to interactive constitution and the podcast at c-span.org/landmarkcases. on march 16, 1968, u.s. army soldiers killed between 300 and 500 unarmed vietnamese civilians in and near the village of my

lai. next on american history tv we look back at that moment during the vietnam war with military law experts and historians. they discuss what happened, the trials of the servicemen involved, and its impact on the u.s. army. from the center for strategic and international studies, this is just over two hours. let me welcome you here to csis. i am the interim director of the project on military and diplomatic history. we are conducting this event today jointly with the army center for military history, and we are pleased to welcome them here to csis. csis' project offn military diplomatic history endeavors to bring historians into the policy community and to give their craft more visibility than maybe it gets otherwise, the academy

not paying as much attention to those sorts of history as maybe they did in the past. i want to make one simple announcement before we get going, simple administrative announcement. that is in the case -- the unlikely event of an emergency, i will give you instructions about what we'll do. we'll either stay here or go out the front or back door. to our panel. i want to introduce our moderator. dr. james wilbanks. a vietnam veteran, career army officer. he teaches at the army commanding general staff office -- school where he is the marshal professor of military history. he got his doctorate from university of kansas. and we're very pleased to welcome him here and to have us

moderate this panel. over to you, doctor. >> i am pretty sure they put me on the end of the table there to see if i would fall off and maybe add some levity here to a topic that desperately needs some. thanks, mark. it is my privilege today to act as moderator of this discussion of what professor howard jones said in his recent book, a descent into darkness, 50 years ago tomorrow 16 march 1968, is part of operation mus ca teen, elements of company c, first battalion 20th infantry. 11th brigade. air-lifted by the 174th helicopter company into a group of hamlets in a village. once on the ground, the unit began to sweep the area. in search of the 48 nlf battalion. by the end of the day, despite the fact that there was no

significant enemy contact, more than 500 south vietnamese civilians, old men, women, children and infants lay dead, killed by the men of charlie company. evidence of what were clearly a war crime was covered up for over a year. and eventually it came to light, resulting in a high level investigation by the army not only of the massacre but also the coverup. 13 officers and enlisted men were charged with war crimes. another is it were charged with having actively covered up the murders. ultimately, however, only six soldiers were prosecuted court martialed and only one was found guilty. my lai continues to have implications for contemporary military operations today. we have a distinguished panel of leading historians and leading military experts to discuss the important lessons and legacies of the my lai massacre.

i'll introduce our panel members. we'll begin today and i will introduce them in the order they will speak. eric bevilard u.s. army center of military history at fort mcnair. he will be talking about the strategic and operational overview. our second presenter will be colonel retired fred bortch. served from 1980 until 2005. he is currently historian and archivist for the jag corps and the author of a number of books on legal and non-legal topics. he will talk about the kelly case. our third presenter is dr. gary s solis, retired marine, twice serving in vietnam as an armor

officer and also served as judge advocate and court martial judge for 13 years. he is the author of a number of books on military in the law of land warfare. he'll be talking about the other cases involved in the milai massacre and joseph b. berger, the commander of the united states army legal services agency and chief judge. u.s. army court of criminal appeals. he's a west point graduate and has served since june 2017. additionally has served in germany, somalia, iraq, afghanistan and a number of stateside appointments. before dr. ballard begins his remarks perhaps a bit on the rules of engagement. once all of the remarks are completed we will take questions from the floor. there will be personnel here from csis and from cmh who will be circulating the room and collecting your questions on the cards provided. they will collect the cards and

give them to me. please indicate your name, affiliation and to whom you're addressing your question whether it be to the spike panelist and the panel in gender. without further ado, eric, the floor is yours. >> testing. testing. thank you all for being here. this is really incredible that we have a full room like this and i've been to csis and this is a capacity crowd and i am glad you're here for such an important event and i am here to give you background on the strategic and operational situation prior to the milai massacre, and i'll give you background on the setting and the opposing sides. the province we're talking about is in the northern part of what

was then south vietnam and going back into the indo-china war why vietnam still controlled the colony, most of the countryside in the province was under control of the vietmen were the predecessors of the vietcong. much like you would see in 1968 in 1950, 1952, the government controlled basically the regional towns and a thin strip of territory along highway 1 which was the main north-south road that ran through the coastal lowlands. so in that respect, not a lot had actually changed and in 1964 in the geneva accords created a cease-fire and france's withdrawal from the country, the terms of the accord created a period of time when people moved

from one area to another because it was controlled by ho chi minh's government and the idea being the national elections in 1956 to decide the issues of reunification. so in the quang nai province most of those vietnam soldiers and cadre went north after 1954 with ideological preparation for future contingency, but at the time was the idea that the vietmen would stay there to coordinate the political struggle prior to the elections and as we know, those elections never took place and zien became the president of south vietnam and called off the elections because he felt, probably correctly, that there was no chance that there would be free and fair and would probably go

to the communists, and by 1956 he began a very vigorous, brutal campaign to exterminate the vietmen who stayed behind and the quang nai province from '56 to '59 was a bleak time for the communist and the majority of them were hunted down and killed or arrested. in 1959, north vietnam decides to begin supporting in the south because the southern cadre were getting clobbered. so in '59 they began sending troops in the first, very small number, but the growing numbers in the years to come by 61, there were battalion-sized units and now we're calling them vietkong and that's not what they call themselves, and they were operating in quangnai province and by 1965 with the united states intervening

militarily, quang nai had once again become a communist strong hold. just the other day, i actually found an after-action report from the operation in early '65, some american advisers were part of this. it was the south vietnamese operation and it was in song me village and the maneuver was almost exactly like it would be 1968 and you read the report and we went into this village and there's tunnels everywhere. there are booby traps everywhere and no men. by '65 you have this communist strong hold very much in evidence. moving forward as the work expanded by late '67 the american troop commitment is going towards half a million on the way to 525,000 which was the authorized limit at the time, in

this area of the country, southern icorps as it became known and icorps was the northern most five provinces. so quang nai was the southern part of icorps. the principal american force in the region was first, something called oregon which was a conglomeration of brigades that were kind of thrown together to bring more security to this region and that transformed into the americal division. so by the end of '67 and the beginning of '68 we have this new division that is still forming and it is based around the 196 brigade which had been in country for several years now and it was pretty experienced and with two infancy brigades which were raised specifically to fight in vietnam and the 11th

and the 198 which was trained in texas and the three light infantry brigades cutting the southern half of i cords and it's a big stretch of territory from the lower part of quang nam and quang nai province, and these new unit, the 11th and 198th arrived just basically at the end of 1967. so they're newly arrived in country and some of the other authors will talk about some of the training issues we have, with you the arrangement was that part of this unit, the ameri owe cal wouame americal, and on the quang tan border was an area for the americal and initially the 198th

brigade took control of it when the south korean second marine brigade moved farther north. so this switch happens in around january that the americal comes to this district and within a few weeks they create this special task force, the task force barker made of three companies from different battalions or different regiments to protect this area. so the thing to keep in mind here is that this is a new division which is still coming into being, and you have this particular area which is now under the jurisdiction of not even a true, you know, brigade, but in fact, a number of battalions and companies drawing from parts of the division.

the main focus of this area was a guerilla in vietcong local form. there were various divisions operating in northern 2 corps and they were from the ho chi minh trail and there were a number of base areas in quang nai province where these big divisions would go back to get supplies and ammunition. it was what they called local force battalions and these vietcong battalions and particularly the 48th that we heard about. their responsibility was to operate in a specific district and create and act as a link between the local population and these larger nva units. so like the 48th local force battalion would, for example,

conduct attacks in conjunction with these big nva units which were under control of the b-1 front, but they had all of the support of the local guerillas and you might think of single a baseball, aa and aaa in the majors, right? the local force guys are, like, aa, right? and then you have the aaa and that's the provincial battalions and that's the majors and the big nva divisions and the single layer of the local guerilla companies and that's the 48th and it's operating in a relatively constrained area that has very close ties to the population and that's why iteres getting the food. they're getting their men, weapons and ammo from the author of food and that's grown locally. so the 48th is the one that's helping arrange that. so the thing that changes the

dynamic and sets the stage for the my lai massacre is the tet offensive. one of the big initiatives in 1967 was the revolutionary development program and it's pacification, and it's a south vietnamese effort to put these teams into select hamlets to help secure them, teach literacy, dig wells and do what you want to do to bring that hamlet under government control and this was a big initiative and they were having a very hard time getting -- okay. that's fine. okay. really had a hard time -- that sounds better, getting a foothold in the countryside because again, once you got off

of highway 1 there wasn't much of government prices and there was a big initiative to turn that tide. when the tet offensive happened, it was a national nationwide attacks, the 40th battalion and every other vc unit in the quang nai province partis paints in the quang nai province and the south vietnamese and the 48th is hurt quite badly in the process. so after tet there is a real desire to get after these vietcong units that have been so badly damaged during the tet offensive and knocked them out once and for all so that this revolutionary development program could, in fact, start to get some headway and so that was the concept behind task force barker and what it was doing in

february and marchth is to see out whatever the threat was locally and this battalion which had attacked and overrun district headquarters before in the city and had generally had three, four, 500 men and was down to about a hundred now, apparently. so the thought was, okay, let's go and clear them out and where did they go? what was it is rear area where they went to lick their wounds and that was the song tin district and places like my lai and it was not son tin. so they said because this is important we want an extension. we want to operate in a place where we don't normally operate and that was the thinking behind this operation. so with that in mind in the

march timeframe the, you know, the push to get the program back on track was, you know, was visible throughout the country and so it was the american units, really, who had the mobility, who had the fire power to go into these normally vc areas where the south vietnamese troops didn't like to go and so that was why the america was operating in this area. it had the ability to do things that government didn't and with all of the dislocation of tet there was a lot of pressure coming down to general koster at the american division and every other division commander, you know, to turn this thing around. so that was also something to keep in mind, a sense of real urgency that something had to be done and the vc had never been so weak. so here is an opportunity, hopefully to take out what would

have been a thorn in their side and with that, i will pass it on to the next person. >> thank you, eric. >> okay. good afternoon one and all. it's not an accident that you're here today because tomorrow is 50 years to the day that the killings occurred at my lai and others are also going to remember this tomorrow, in fact, on tuesday i got a phone call at my office at the army's legal center and school, a reporter from the german broadcasting network wanting to do an interview with me about my lai, recognizing that the anniversary was coming up. so i think tomorrow, which is the actual 50-year mark, you'll be reading about my lai and obviously, it is important. although it happened a half a century ago. as i look out here i see that

some of you in the room were alive a half century ago. including me. i was a teenager, so i remember. i remember my lai, he's only 29 or so, but most persons don't remember my lai and will give you a rather puzzled look if you say rusty kali? i want to talk about three things and i want to talk about rusty kali, lieutenant kali who was court-martialed at fort benning, georgia. i want to talk about what happened on march 16, 1968 and then finish up part three of my remarks, the aftermath of the kali case. so a little bit about william lawes "rusty" kali known as rusty because of his red hair. not a big man, 5' -- i think

three or four, not a very good student, finished 666th in his high school class of 731. some of you might think 666 is not a coincidence, and at ocs, an officer candidate school finished in the bottom quarter of his class. so for those of you who know something about army ocs, it's a way for deserving men and women to get a commission. three ways to get a commission, obviously, and go to one of the academies and rotc and ocs and we do have some direct appointees. today, you have to have a college degree to get into army ocs. back in kali's era you didn't even have to be a high school graduate. kali was very much a low-quality

kind of officer, but we needed officers in 1968. he had some schooling, military schooling in georgia and that was enough to get him in, but again, finished in the bottom quarter of his class. so on march 16th 1968, second lieutenant kali is in vietnam with the americal division in charlie company commanded by captain ernest medina and he's going on what they fully expect to be a serious mission. intelligence is they'll be facing the 48th vc battalion as dr. valard talked about and told they were outnumbered two to one. you can expect sniper fire. you can expect this is going to be tough, and it's going to be a real fight, and so kali and the soldiers are nervous. they're afraid.

as dr. valard said, tet has already happened, but somewhat ironically the men in this particular platoon, in this particular company didn't have any combat during tet. they're still untested, but there had been some soldiers in the unit who had been harmed, injured by booby traps, and a very popular sergeant in the company had been killed a couple of days earlier, and so the soldiers are nervous. they're anticipating a big fight and that isn't what happened. they're airlifted in by helicopter, but they get to the hamlet of my lai, about 7:00 a.m. in the morning and there's no fire coming their way. there's no sign of enemy action

at all and there are no booby traps and no mines and they're in a small village and all they find are women, old men and children. no military-age males and these young -- these people are going about their daily chores having breakfast and getting ready to do what they do in the village. and so from the beginning the soldiers are really confused about what they need to do and an important point is no one ever instructed kali or his men what to do if all they encountered were unresisting, unarmed civilians. they come into the village and almost immediately, some soldiers begin to kill livestock, throw grenades into hooches and kali and the men

begin to round up civilians and put them in areas in the village, one particular area is by a ditch and at some point kali comes along to a private first class by the name of my low and he says to my low how about taking care of these villagers and kali walk away and some time later he returns and says to my low, i thought i told you to take care of these villagers and my low says, well, we are taking care of them. we're watching them and kali replies, no, i mean kill them and so in the next couple of minutes kali and my low open up on the unresisting, unarmed villagers with their m-16s and begin to kill them. and by the 11:00 a.m. mark, four

hours after they've entered the village as dr. valard said, between 350 and 500 civilians have been killed by kali and his men. there were certainly some soldiers who refused to open fire on the civilians, but most of the men in the platoon of whom there were about 20 did so, and the result was, and this horrendous massacre and the horrendous war crime and a real tragedy. the first thing is while the massacre and while the killing was going on, a helicopter, a small observation helicopter, a raven was called at the time piloted by warrant officer hugh thompson who was providing really observation for the ongoing mission.

hugh thompson saw what was going on down below and he saw there were at least 150 bodies and he was so upset, he landed his helicopter on the ground between a group of american soldiers who were chasing fleeing vietnamese to put a stop to it, and he instructed his door gunner, a soldier by the name of larry colburn that when thompson went to talk to the americans, if they did not break off their chase that they were to open fire on the americans. fortunately, it did not come to that. thompson had a very tense conversation with a second lieutenant who we believe was not kali, but a luieutenant by the name of brooks who was subsequently killed in action and they did break off the chase. thompson, therefore, saved some lives and he also was able later to evacuate on his helicopter a

number of vietnamese children thereby, probably saving their lives. thompson is really one of the true heroes of the day, and is later decorated by the army. unfortunately, quite a few years later, recognized for his non-combat heroism with the soldier's medal. professor solis will talk about some of these individuals, but the company commander is captain medina. he is not actually in my lai, but he and the first sergeant are adjacent to the village and certainly, every reason to believe that medina and his first sergeant knew what was going on. medina, by the way, is a decorated combat veteran, silver star and well liked by his men. task force barker as dr. valard said is famed after lieutenant

colonel barker who was the battalion commander and barker is later killed in a helicopter crash and that's one of the reasons that we never talk about a court-martial for barker. the brigade commander is a colonel henderson. he's only been in command from the day before, the day before, and then finally the americal division commander is samuel koster. he's a fast burner, protege of west moreland, going places. in fact, koster is the superintendent at the military academy after vietnam. so this is what happens that particular day. kali and his men open fire on these unarmed and unresisting villagers and killed between 350 and 500. we're not really sure how many because of the cover-up that

happens almost immediately. at every level of the brigade staff and the division staff officers cover up the war crime and covered it up either by intentionally failing to investigate the war crime or report it to higher authority as was required by military assistance command vietnam directives. you were required by mac v directives to report all suspected war crimes and investigate them, but almost immediately colonel henderson reports to major general koster that at most almost 20 non-combatants have been killed and if you hear otherwise, it's just vc propaganda. so it is covered up and it's not until april 1969 that another

real hero in this episode changes things and that's a sergeant by the name of john ridenower. and he knew some of the soldiers who had been there and he began to hear about this massacre in which a lieutenant by the name of cali as he spelled it in his subsequent letters k-a-l-l-y had taken part and ridenower has such a sense of justice that he writes a letter to the president, the white house, and the chief of staff of the army saying we've got to take a look at this. look at this war crime. general west moreland, chief of staff at this point gets the letter and immediately instructs

his inspector general to begin doing an investigation and that happens, there is an investigation and we begin to uncover a war crime and there is also a sub skwaent investigation headed by lieutenant general ray pierce that looks into the atrocity and the pierce inquiry is the gold standard to what happened in my lai. he is's trigger puller here and charges our preferred against kally in november 1969. so the massacre, and the event, march 16, 1968 ridenower's letters don't start coming in for 13 months later and then kally is charged november 1969,

and he is prosecuted at fort benning and the trial opens in november 1970. november 1970. pierce actually recommends charges against 25 others and professor solis will talk about some of these other cases. only six are court-martialed of whom kally is the only man to be convicted. so the case opens at fort benning, george a and two rather inexperienced judge advocates in the sense that their army lawyers in their first tours as jags are given this case to prosecute which looking back today, i think, is quite mind-boggling, but i guess lawyers were really good back then. [ laughter ] a lot of pressure in bringing this case and what's their big fear as prosecutors? their big fear is jury

nullification. you'll remember the vietnam war has very much split the country, a lot of arguments of about why we should be there and is kally a scapegoat and the result is a lot of pressure, a lot of beliefs that maybe there will be jury nullification here. the government puts on its case and the defense case is -- well, the government's case is kally murdered these people when he shot them and he and other conspirator, co-conspirators. he's charged with murder and the defense is kally was only following orders. kally insists that he only killed the villagers because captain medina ordered him to kill everyone in the village. not surprisingly, when medina testifies he says i never gave that order. why would i tell someone to kill civilians?

and the finding comes back march 29, 1971, but it wasn't really an easy case. the jury of six, a concernel, foa major and a captain spent 79 hours in deliberation. 79 hours in deliberation. so we can talk more about the case later, but let me tell you in an unprecedented move after kally is convicted, the president of the united states richard nixon interferes in the case and directs from the white house that kally will not be sent to leavenworth, but he will be put in his on-post quarters where he will be able to live in sort of a house arrest situation

pending the outcome of the case. and so as the case winds its way through the system, nixon eventually decides to take no more action. kally has been found guilty of premeditated murder. he's sentenced to life, confinement and hard labor for life, but the convening authority in the case, the general who put the case together, when he takes final action reduces the case, the sentence to 20 years and then the secretary of the army later reduces it to ten years. kali's gone to leavenworth by now, but under the rules as they existed time, once you served a third of the sentence you were eligible for parole, if you had leavenworth, and kally is eligible for parole on 9,

november, 1964. you will often hear that nixon pardoned or xhietcommitted kall sentence, not true, but he did interfere in the case and as a result kally did not go immediately to leavenworth. thank you very much. professor solis? >> the fact that military justice didn't make sure, the fact is that military justice didn't make sure that those responsible for my lai and its cover-up were properly punished. i feel that those trial and non-trial results are totally inequitable. that's a quote from lieutenant general william peers who conducted the pierce investigation. i'm with general pierce who led

the 92 strong team that definitively investigated my lai. it was pierce who brought charges against their soldiers who were tried for my lai as trigger pullers and against officers who covered it up for over a year. how many unarmed and defenseless vietnamese old, men and women and children are murdered and how many women were raped and gang raped? how many of those women and young female children had their vaginas ripped by bayonets wielded by kally's soldiers in 1970 the american public never heard about those sexual offenses, but it's the epic failure of the military justice that i will discuss. i was a marine judge advocate for 18 years. in the early 1970s, military courtrooms were overflowing with courts marshal, administrative discharges were rare.

dissertions and drugs were the order of the day with violent, racial conflict a constant background, flaggings weren't unusual, court-martial numbers were at record highs. to establish my military law bona fides from 1972 to '76 i prosecuted 433 courts marshals. i never defended. as a military judge in the mid-'80s i heard another 331 cases. in the '70s as a young lawyer, i'd already been in the court for a few years, i'd heard the details of the my lai cases. i understood what had happened, and i was appalled. i remain appalled. the my lai cases were american military justice's darkest day because of the my lai cases that were not tried, the my lai cases that were poorly tried and the my lai cases that were buried by

senior officers. we know that the my lai war crimes occurred on 16, march, 1968 on 24, november, 1969 general west moreland appointed lieutenant journal william pierce to investigate the my lai war crimes. congressman mendel rivers con doub ducted hearings which we'll play in a moment. general pierce' investigation report was released to the public. 12 officers were charged with ucmj -- i didn't start my clock. clever. 12 officers were charged with ucmj cover-up offenses, the convening authority and the general officer who has authority to make a court-martial happen was lieutenant general jonathan seaman, the general to the first army. after february 1971, seaman was replaced as commanding general

and convening authority by lieutenant general claire hutchen. 12 cases charging my lai cover-up was by lieutenant general pierce and sent to the first army headquarters for a court-martial and only one of them made it to court-martial. >> 13 additional charges for war crimes for the trigger pullers were sent to lieutenant general albert conner, commanding general of the third army and a total of 25 cases. every one of them already complete with charges bought by pierce, a three-star general tested in world war ii, korea and vietnam combat. he was supported by a 92-man team of investigators that included military and civilian lawyers all of whom walked the ground at my lai taking sworn statements have vietnamese victims as well as every soldier involved in the my lai operations. over the next three years, the 12 officers charged with my lai

cover-ups and two chaplains not previously mentioned fared well. first, major general samuel koster, we already heard about general koster and he was dismissed by general seaman, the day before general seaman retired. he did issue a letter of censure to general koster and the secretary of the army reduced him to brigadier general and he was relieved as superintendent at west point. when i tell cadets that at west point they can't believe it a supe was relieved. general pierce wrote i was disturbed by general seaman's dismissal against the senior officers especially in general koster's case. it was a travesty of justice that would be difficult for the army to live down. yet other officers charged with the cover-up did better and lieutenant colonel william ginn accused a failure of dereliction

of duty. major gavin, failure to obey a false official statement. failure to obey a lawful order and dereliction of duty, charges dismissed prior to trial. major charles calhoun and disobedience to report possible war crimes, charges dismissed prior to trial. kenneth boatman, disobedience of a lawful order, charges dismissed prior to trial. lieutenant dennis johnson, failure to obey an unlawful order, charges dismissed prior to trial. chaplain corps united states navy -- excuse me, army. crosswell told his superior lieutenant colonel lewis of warren officer thompson's observations from his helicopter over my lai. he told no one else as he was required to do so by a standing order and only his boss. the law was dismissed by the secretary of the army stanley

reesener before the case even reached general seaman. lieutenant colonel francis lewis, division chaplain, like chaplain cresswell with disobedience of a lawful order dismissed by the secretary of the army reserve. even more disturbing to anyone even slightly familiar with military justice, four of the charged cover-up officer's cases were dismissed without an article 32 investigation having been held. an article 32 is a preliminary, a required preliminary before any general court-martial and it's been said to be akin to determine whether or not there's prbable cau probable cause has been committed and by this individual. the assistant brigadier general and the assistant commander, and general seaman dismissed as all of his charges without an article 32 investigation. the colonel parson, failed for

dereliction of duty, dismissed without an article 32 and failure to obey a lawful order, and major robert mcknight dismissed without a 32. why were these party how did they determine that there was insufficient to take them to trial the reason being, when he didn't convene the design to make that determination? we'll never know. >> neither the ucmj nor dod orders require a convening order and i've located no writing by general seamen or his successor to explain how general pierce could have found probable cause, counting two chaplains and been wrong in 13 of those 14 cases. the 14th officers covered up case, it went to trial. colonel orrin henderson,

commanders of the 11th infantry brigade failed to obey an order to report war crimes and he was charged by members, that is a jury, which resulted in his acquittal. the acquittal very strongly smacks of jury nullification, but we can't know that as fact. general pierce said of colonel henderson's acquittal, if his actions are judged as acceptable standards for an officer in his position the army is indeed in deep trouble. then there were the 13 additional charges of war crime cases involving four officers and nine enlisted men. they also fared well through the good graces of another convening authority, lieutenant general albert o'connor. for example, sergeant esquivel torres charged with murder, charges dismissed before trial. he was discharged at the convenience of the government with an honorable discharge. private matt hutch son, charged

with murder and before trial. charged with murder and dismissed before trial, honorable discharge. >> dismissed before trial. sergeant kenneth hodges, charged of assault dismissed, discharged convenience to the government, honorable conditions. william doherty, kenneth shield, corporal, murder charge dismissed and discharged under honorable conditions. first lieutenant thomas willingham, charges of false official statement and dismissed prior to trial and honorable discharge. were there 32 article 32 investigations in those eight dismissed cases? i've not been able to locate any source that mentions article 32s, and i suspect none of the eight soldiers did have an article 32 of whether or not they had indeed committed an offense. >> colonel henderson had been tried and acquitted.

charges were dismissed prior to trial in 21 other my lai cases counting the two chaplains. that left five cases and all five were tried at general courts marshals with members. sergeant david mitchell charged with assault with intent to commit murder. congressman mendel rivers' investigative subcommittee refused to provide mitchell's defense team with the transcripts of testimony of four prospective prosecution witnesses before the subcommittee. the transcripts were needed by mitchell's defense team for the cross-examination of the four. the congressional refusal was held to be a violation of the act which requires military lawyers to produce defense-oriented evidence for the defense resulted in the court's order that no witness appearing before the subcommittee would be allowed to testify at his court-martial. thus, the prosecution was fatally wounded, mitchell was acquitted. sergeant charles huddow, the second of the five cases,

charged with assault with intent to commit murder, charges of rape and murder had been dismissed prior to trial. he was acquitted by members, despite huddow's written, sworn statement that he had killed a group of unarmed civilians with his m-60 machine gun. the statement was admitted into evidence and read to the members and the members took less than an hour to,a quit. the captain charged with maiming and assault and was charged with using a boeing knife ask the suspect during which time he cut off the tip of his finger and he claimed it was an accident and members took less than an hour to acquit. here's the interesting case, in my opinion, and captain ernest med ina the ceo of kally's platoon, as you know. he was charged with aggravated assault times two and premeditated murder of fewer than 100 in my lai and the adult

female, and a charge of fall you are to obey a lawful order, as well and excuse me, a charge of failing to obey a lawful order, and drop before trial and the case was defended by f. lee bailey and at the time a very prominent defense counsel and medina was not charged and not charged with making a false official statement or with dereliction of duty or disobedience of a lawful order to report a war crime, articel 92 or with the miss present of a felony and article 134 and all seemingly viable charges and instead he was charged as a principle to murder article 77 requiring for conviction as an aider or abetter that they share the criminal intent of the

perpetrator, proving specific intent is always a challenge and proving it to a co-actor, and once removed from the principle actor it was a high bar for the prosecutor ask it was a strange charge to bring. the prosecutor failed to call former soldiers such as paul medlow who placed medina within my lai when the killing was going on. nor could the prosecutor get the my lai's photographs into evidence although they were on the cover of "life" magazine. the writer and commentator mary mckarthy and she wrote despite the familiarity by this time with the my lai matter and they were repeatedly surprised and as they were scolded and corrected by the judge. a new york times reporter said many thought the prosecutors were simply not up to a contest with bailey and noted defense

council, closed quote. pursuant to the prosecutor's request, the prosecutor's request the military judge instructed the members of the jury that the accused could be convicted only if he knew his men who were about to commit war krooms and he failed to stop the acts. the military judge emphasized that actual knowledge was required and actual knowledge was not then and is not today an element of aiding or abetting as requested by the defense and like specific intent, proving actual knowledge is a high bar for a prosecutor. on 22, september 1971 the members deliberated for an hour again before acquitting captain medina. the medina prosecutor wrote in a law review article -- quote, the prosecutorial record of the my lai cases was abysmal, closed quote. having lost three of the six my lai cases that went to trial, he

should know. we heard about the case of lieutenant william kally, and the trial counsel in that case was captain aubrey daniel and finally at the right moment and i know that fred agrees with me and at the right moment in history the military justice system got it right. aubrey daniel, 25 years old was pitch perfect throughout the kali trial and thorough, spectacularly confident and he outlawyered everyone in the room including a military judge. so, seven soldier, at least should be remembered as my lai who refused orders to kill, and robert mapels and dennis bunting and joseph dersey and all refused orders to kill unarmed civilians and hugh thompson was

beyond heroic. so of the 27 my lai casses counting the two chaplains who are usually not counted and 21 were dismissed before trial. 21 cases were entirely dismissed before trial. at least four of those dismissals without -- were without article 32 investigations and six cases went to trial, five of them resulting in acquittal. three of the five acquittals were prosecuted by one judge advocate. a trial lawyer is no trial is too hard for the lawyer who doesn't have to try it. still, the judge advocate's first loss of the huddow, whose name rhymes and the reasons for a second acquittal and that of captain cattoke were unknown

because court-martial acquittals only have a summarized record less than a page long. so there's no way to examine to reflect on the strategy and it looks like a simple prosecution case, but we weren't there. captain medina's case is another matter. through an acquittal leaves no record to examine, media coverage of the case tells a damning story. more significantly, the questions raised by the charges suggest a legally deficient approach from the outset. combine those points with the prosecutor's own writings on his prosecution of the case and it appears that the government's trial strategy and command of military law were lacking from selection of charges to jury instructions. in my opinion, medina was a winnable case and a loss through prosecutorial inept ti tud, and the cases that were not charged, the conduct that went unexamined

and let alone tried. two non-dayses, for example, were those of gary rosevicz and dennis conte and they were among the worst uniformed in my lai. they forced a group of women to strip and mord murdered them with an m-79 when they refused to have sex with them. conte allegedly forced a woman to perform oral sex by holding a gun to the head of her child and yet they were never charged despite sworn statements describing their criminal conduct. is there a reason they weren't charged? i believe there is, although it could never be proven. i believe higher military authorities didn't charge them for the same reasons they dropped 21 of 27 cases before trial because they didn't want the american public to know the full extent of the criminality exhibited by u.s. personnel in my lai and undermine america's ongoing war effort.

i believe that was the reason not a single rape charge went to trial, why sexual mutilation charges were not even considered. i believe that convening authorities just wanted the whole damn my lai case to go away with as little media attention as possible. thus, 21 my lai cases with sworn charges to a hardened lieutenant general picked by a team of military lawyers were dismissed without trial and without legal explanation, thus assuring no trial, no publicity and no national outcry. the tragedy of my lai didn't end when the last round was fired. >> good afternoon, ladies and gentlemen. i hope to be able in the next few minutes to show you that we, as your army today, have the ability to listen, absorb, learn

from and act on the lessons of the past. i hope to be the good news coder of the story today. sis ro famously asked whether laws are silent in time of war, i think the answer is absolutely not, but there are prerequisites in order to have an army and in order to fight a war such that the law and the rule of law remains. it requires a disciplined professional army with self-policing. it requires knowledge of the law of armed conflict to be treated as a core comp tensy among professional soldiers and it requires leadership and it requires officers and ncos who are adequate in character to the task at hand, and when we look back in history and we look back at the pierce inquiry and what lieutenant general pierce found. he found that we lacked a professional, disciplined army and a reliance on draftees and abbreviated training for

officers again, not a single cause in and of itself, but certainly a contributing factor. we lacked proper training, training that was described as lackadaisical, as card based. we were joking earlier that if you gave a soldier a card with rules of engagement on it, well, it doesn't hold up well until about 12 minutes in the field when it's soaking wet and it turns into a pile of pulp. so even if the soldier were so inclined to look at the reference and most wouldn't be, it would be gone, lost to them and then there was the lack of leadership and adequate in character and not just kally, but the cover up and the failure to police our own ranks as a profession. i tell you today there are three things you need to know about your army, about our army that have fundamentally changed. those things that give us the moral, legal and ethical foundations to ensure the legitimacy of our operations and

as we sit here on this 6,003rd day in afghanistan fighting one of the longest wars in modern history, that moral, legal and ethical foundation has got to remain solid. so what is it? what are those three things? it's the comprehensive, integrated nature of how we train and ensure compliance with the law of armed conflict. we do it from entry-level training all of the way through the senior service colleges at our highest level for our sergeants, major, at the sergeant major's a cad moo. we do it from cradle to grave. we do it in the classroom. we do it in practical exercises and we incorporate it in our large-scale training and our combat training centers and we do it in every operation center around the globe. we'll come back to that in more detail. what else has changed? the second thing you need to know that has changed is the role of the judge advocate. i got it.

many in this room would cringe to think, really? more lawyers? that's the solution? but i tell you, the people asking for more lawyers today are not the lawyers. they are the commanders and i sb mitt to you that it's not the commanders that are gun shy and who are not afraid. i won't list name, but the commanders i've had the privilege of working for who have asked for more legal support are names that would resonate in this room and you would not find any of them shirking. it is the ability to be both the command's legal adviser in that strict left and right limit of what is the law, what are the policy limitations, but to be counsel. we can do it, but should we do it? and to be part of that commander's inner circle and to be a part of that discussion beyond the can and could to the should. it's integration with the staff at every level and it's present in every formation from brigade

up and the brigade combat teams in the army all have three judge advehicle at advocates and they have a series of number paralegal ncos working across these formations and different formations have different numbers, but we have lawyers at every echelon. so with that, with that training with the presence of those judge advocates and the quality of our junior leaders, the final thing that i think is required especially our ncos, we have an all-volunteer arm they invests heavily in the training of our force and that makes a difference today. so what do we do differently now that we didn't do then? >> well, in 1972, a judge advocate out of the pierce inquiry that we ought to have a law-work program or the dod law

program, and in 1974 that was codified and it was critical because it was an initial step in changing the army's mindset about the appropriate role to be played by attorneys in the military, but beyond that it got to the training requirements. the professionalism of our force and our junior officers and our ncos would follow in time with the all-volunteer army, but those two additional things that go back to the three things i highlighted that you need to know were critical. it became the precursor for what became known as operational law, and if you're involved in academia today you'll hear it talked about as national security law, but over the last really 25, 30 years, it was the active evolution and the rapid evolution of operational law. that is judge advocates, the staff and commanders working together to ensure that operations were within

compliance to the treaty be on li gigzs of armed conflict as well as to the limitations that are part and parcel of every operation we are part of. it was dod armed forces personnel. we'll talk a little more about that. it also specifically mandated judge advocates must be involved in both development and review of op plans in order to ensure the plans comply with law of wars requirements. a significant mindset change for the army. at the time of massacre, we were doing none of it. today, it is part and parcel of how the army and joint force conducts business every day without second thought and without hesitation around the globe. qualified embedded legal advisers became a critical part of that. dod law of war program in 1974 set out a requirement to make

qualified legal advisers at all levels of command available to provide advice about law of war planning. so i walked you through how we have lawyers at every level from brigade up, in special forces units we have lawyers at the battalion level. when we send battalion sized taskforces forward, they go with a captain, occasionally a major, but trained. i will get to the training piece a little later. within that program we built that structure. then we ensured we trained that structure and so we train the judge advocates, paralegal noncommissioned officers, train them at the basic course, in the graduate course, mid level educational course, we trained them in short courses, we trained them in home station training, and that's the academic piece. we'll get to the operational training piece as we talk about how we train our forces. but in addition to structure and training, you've got to have

action, judge advocates that are in there and willing to advise. you have to have judge advocates that can speak truth to power and tell a commander no when the answer is no. who can tell a commander yes when the answer is yes. and who when in that gray area in between can help a commander understand where the left and right legal limit is, and where the risk is, and allow the commander who owns the decision to make a decision based on an informed risk assessment of which that judge advocate and the rest of the staff plays a critical role. so the judge advocates are tasked not only to address and identify legal constraints, it is not all about no, it is about counsel. it is about the should we when we get past the could we. in addition to those, the other thing s we weren't doing was consolidated, integrated training. peers report talked about

training as lackadaisical, like the fallacy of a stack of cards in your pocket as a soldier that provides or pretend to give you guidance, again, once they're wet, they're nothing but pulp, and how often do you sit and read them? having had them in my pockets on deployments, you largely don't. but now the army is at a point you don't need that daily reference day in and day out because it's part and parcel of how we train. training begins like i said at the cradle. so whether that's ait for soldiers or whether it is rtc at the academy or ocs for officers, it is comprehensive. at west point, it is a combination of philosophy, military law, military science, field exercises, organizations at west point like the lieber institute, named for francis lieber of civil war fame who wrote general order 100, which

was the framework for the law of war for our forces. and the modern war institute. proudly run by one of my west point classmates who takes a look at bringing all these components together, challenges of modern battlefield, how we have to fight and providing feedback and guidance to the field in an integrated fashion so they can understand it. when you open the soldier's manual of common tasks and subject number one is individual conduct in laws of war. what it tasks soldiers to do is to identify suspected or known violations of the law of war and notify appropriate authorities. that's a basic level task we now require of entry level soldiers to understand that process, something that was absent at the time 50 years ago when these events transpired. we integrated that training at

our combat training centers. whether you're in louisiana, whether you're at ntc at fort irwin, or mctp at fort leavenworth, wherever you conduct training, preparatory training at home station and training in each of those intense training environments all involve scenarios, woven through, that raise with and force commanders and soldiers to deal with these issues, to deal with issues of combatants on the battlefield, to deal with issues of treatment of detainees, treatment of prisoners, treatment of civilians who you need to remove from the battlefield in order to identify and engage the enemy. we do that. we train at every course, at precommand course for our battalion and commanders. we train for our senior ncos, and like i said earlier, we train at our sergeant major academy. training is different in every

one of those venues because the knowledge, base of knowledge those individuals are coming in with at that point in their career is different. the experience is different. but it all goes back to their ability to return to their formations and ensure the most junior soldier understands what is expected of him or her in combat or in any operation. however categorized. and that's the rule for us. it doesn't necessarily have to strictly be a combat operation. all of this applied in kosovo. any operation, however categorized, is the language of the regulation governing us. we take it seriously in everything we do. so what does that get you? hopefully gets you a program, i submit it gives us a program today that ensures that soldiers understand they have multiple venues for reporting suspected allegations, whether to the chain of command or fear chain

of command is involved, to alternate chain of command, to a chaplain, to a judge advocate, to an inspector general, all of whom are present on the battlefield, all of whom are present at various levels in various formations, but we give soldiers options, we give soldiers multiple ways to be able to do the right thing should the wrong thing have occurred. now, that begs the question if we solve the problem, how can wrong things occur. the reality is we're an army of human beings and we're an army that reflects the society in which each of us comes from. so guess what, we get bad apples from time to time, and we don't always weed them out in enough time. you take a case like june 2012. in afghanistan. first lieutenant comes down to from the staff to take over a platoon. clint lorance was an aggressive

lieutenant and had his own ideas about how the war in afghanistan should be being fought. those ideas were not aligned with rules of engagement, and that's the fundamental fact that starts us off the trail here and off the rails. he gives his soldiers guidance that is not in accordance. with the roe. motorcycles are allowed to be engaged on site. that's guidance given. not a lawful order, but soldiers don't necessarily know that, change to the roe would likely come through the chain of command. what the soldiers did know was their rules. if they don't witness hostile act or intent, then it's not a lawful target. so when he tells a soldier to go ahead and engage a motorcycle, that soldier does, fortunately he misses. but when he tells another soldier with a mounted weapon to

engage the same motorcycle, that soldier is more successful and kills two of the three riders on the motorcycle. then the coverup begins. he tells soldiers what not to report back to headquarters. he lies about where sound of gunfire came from. but a young soldier is the one who immediately goes back to the company commander and reports this. and within a pretty quick turn, first lieutenant lorance is convicted of murder and sentenced to 20 years. we won't always get it right at an individual actor level, but i submit to you, your army will get it right. the joint force will get it right. strict requirements about reporting, protocols that are followed, because a force is trained to understand and articulate what the requirements are, makes us a much better army than we were. and that's always the hope, that each and every day we learn from what we do.

we may make a mistake once but we should learn from it and not make it a second time. i think back to when i was a brand new second lieutenant, it was july of '93. i'm in somalia, the two star commander of u.s. forces brought all of the lieutenants together. things were starting to heat up in somalia, he had concerns. he had been a company commander in vietnam at the time of this, and then moved to the staff on the division. he sat the lieutenants down with 25 years of scar tissue and talked to us for quite a while about the law of armed conflict and about the rules of enga engagement and watching out for your soldiers and about things that happen in combat. 25 years later, i sit here today in front of you having had the experience of multiple combat zones around the world, different roles in each, whether platoon leader or senior adviser

at the joint special operations command. really the full spectrum of combat operations and interaction at these levels. what i can submit to you today is the fears general montgomery shared with us 25 years ago are not the fears i have today. yes, i worry about the human nature and human element in all of this, but i am confident that your army and your joint force does a more than adequate task of educating, training, and where at all possible preventing another massacre. thank you. >> okay. we'll have some questions. i would like to remark as i was listening to general berger speaking, we often teach an vietnam elective at the staff college. i often tell students, most of whom believe me, some don't,

that the most dangerous thing in the world is a 19-year-old american with m-16 or m-4, and what keeps to mix a metaphor, keeps rods and reactors is leadership, moral, ethical leadership as the general points out. that's the focus of every time we talk about something like my lai or lorance or anything else, it pervades everything we do in the schoolhouse. i remember when reading about this, one of the soldiers said why did you follow on an illegal order, an unlawful order. he said at the platoon, there ain't unlawful orders, are you crazy? i wouldn't tell my lieutenant i am not going to do that. that puts the premium on the junior leaders in the unit to keep those rods and reactors, particularly in situations like on this particular day in 1968. as i look at the questions, i will ask, fred, would you elaborate on fred thompson and what his role cost him in terms

of his reaction within the division once he went back and made his reports. >> okay. well, hugh thompson, talking about the helicopter pilot, warrant officer hugh thompson. as i said when i made my remarks a couple of minutes ago, thompson was up in an observation helicopter with two crew men. he saw what was going on on the ground. he was so upset, he went down, landed the helicopter between some fleeing vietnamese and pursuing soldiers and stopped at least that particular event. he went back and informed his squadron commander what he had heard. watke said he thought he was overdramatizing the event. thompson reported this to a

number of people, including the chaplain. he went to the chaplain, creswell, i think was his name, and said i can't believe this happened. and creswell said don't worry, mr. thompson, i'll take care of it. i'll make sure it's reported. so really in the end, no one paid any attention to thompson and in fact he became sort of a black sheep. this guy is not loyal. he's making waves. and although he later got a commission as a first lieutenant, for many years, thompson was ignored, and it wasn't until 1995 that because of some efforts by historians who knew about thompson that the army finally came through with a soldiers medal for him, which is the highest award for noncom bat

heroism that a soldier can receive. so i think the truth about thompson is that for many years ignored, considered to be not the hero that he was, and it is not until 1995 that he's recognized. he wrote a book about his experiences or rather authored by the name of trent agers. mr. agers is here? okay. all right. he wrote a book about it and certainly he is here and you can talk to him. but i think thompson in the end was recognized for his heroism. sadly he is dead. he died of cancer i think ten years ago now. his co-pilot or crew chief is also dead, but i think thompson is one of the heroes and he was finally recognized for his heroism. >> thank you. mesmerized by machinery. during course of commitment,

u.s. forces, this is for gary, the u.s. forces in vietnam, were there records of other atrocities committed in vietnam? >> very much so, all the time. marine corps had numerous trials. 26 marines were convicted of war crime charges in vietnam. there were a number in the army of course, probably more. but there was no requirement that war crime charges be reported to a central command so we can never know how many war crimes were actually committed, so when a reporter called fred or myself and asks how many war crimes do we have in vietnam, it is hard for us to explain we don't know. there's no way to determine that. but there were other war crimes, marine corps had 24 civilians were murdered at point blank range, all women and children. no males, no adult males among them, but we don't know how many. but what we do know is there were prosecutions throughout the

war. when we learned about these things, we took action. it didn't work so well in my lai, but my lai was really a one off in many respects. yes, there were other war crimes. they were prosecuted throughout the war. >> if i could add to that real quick, after the winter soldier protests, any of these soldiers back in the united states, protesting the war, talking about the things they had seen or heard about, atrocities and war crimes, that spurred an army investigation into the claims. there's a thick stack of summary reports in the national archives, 250 approximately, that describe the allegations and results of the investigations. i actually found them after abu ghraib.

our office started to look into treatment of detainees and pows after abu ghraib, and i went to the archives and found all of these summary files. most of them were dropped for lack of evidence, either people refused to testify or they couldn't be found or couldn't be substantiated, but there was a big -- about '70, '71, another big push to look at these allegations. >> i want to give you one other point on war crimes. yes. i think the number 350 is what i have seen and gary is right, some were prosecuted, but at the time the legal problem was that once you were honorably discharged, there was no longer court-martial jurisdiction. in the case of private first class who admitted killing

scores of vietnamese civilians, he could not be prosecuted because he had been honorably discharged from the army. the only sovereign that could have prosecuted, only country that could have prosecuted him was south vietnam. south vietnam was not interested in prosecuting any americans. remember also in this period, if you're a guy and you're drafted, how long do you have to serve. two years, right? by the time you get through basic and advanced individual training and go to vietnam, boom. you're out almost as soon as you come back. in his case because it was covered up a year, many of the soldiers who killed were gone, were civilians and couldn't be prosecuted. >> the nature of this question comes from two different people, essentially it is, this is addressed to the panel at large. what were the political

pressures that impacted the lawyers in putting the cases together and trying them? >> i wrote a history of marine corps lawyers in vietnam. so i talked to virtually all of the living lawyers about their cases in vietnam. i know of zero instances of political pressure on the prosecution of any case in vietnam or in the united states. i know of no instances of political pressure. i would be surprised to learn of any substantiated case. >> any other response on the panel? >> i agree with that, at least as a legal historian. let me go back to the callie case again. public opinion after callie was unbelievably opposed to the case. only 9% of the american public supported the conviction in the callie case. 9%.

which is why president nixon interfered and when asked whether or not he was a scapegoat, 83% of americans said yes. so i agree with gary, there isn't any political pressure but on the other hand, politicians do pay attention to public opinion polls. >> this isn't, doesn't quite qualify as political pressure in a sense. the question was asked, but still it's related in terms of south vietnamese. what was their government stake, their position about this. one would think they would be deeply concerned about the killing of up to 500 civilians. well, the fact is that was not true. the local district chief and province chief after allegations came out conducted what they

said was investigation and basically said look, there's just vc in that area, and if you have allegations of a massacre, that's vc propaganda. i mean, they kind of wrote the whole thing off. you have to understand in this checker board sort of war situation, place like that eastern district has the name on operational maps, sort of term they used pinkville, it was a red area, had not been under government control forever, so the government didn't feel any particular obligation to the civilians who lived there and in fact a number, i have this letter, a number of south vietnamese senators wrote to nixon in december of '69, said please, mr. president, do not pay attention to the allegations, it is all fake news.

didn't use that term, but that was what they're basically saying. it is vc propaganda, is simply going to undermine american support for south vietnam at a critical moment. oh, and what about the way massacre, right? south vietnamese were upset as you would imagine of the 3,000 civilians vietcong killed after way, and in '69 a lot of the bodies were uncovered. it was very much in their conscience, you can't trust the vc. in a sense there was political pressure from the south vietnamese just to move on. >> this question, was the my lai complex in a free fire zone? goes on, ends up asking the larger question is there a problem with corporate culture

and loose roe. you can further define that as command climate, the search for the body count. i address that to the entire panel, as well, whoever wishes to comment. >> fred and i have had this conversation a couple of times. the unique thing was, there were free fire zones then, they were pretty normal, they played a role in this case. the reality is you would i won't say never see that again but i can't imagine the circumstances where i as legal adviser outside of pure, unpure competitor fight where i would look at a commander and say that's even remotely a good idea. and i don't think i would find a commander who thought it was a good idea to be honest with you. so what i submit to you is at the time there may have been a cultural problem with it but i don't think that's the same

challenge today. fred? >> for those of you who study military history, you know there are various types of strategy. we like a maneuver strategy, for example. we talk about counterinsurgency. west moreland is pursuing attrition strategy. if you know military, you know the idea of attrition is the enemy will give up if we just kill so many of him that he finally doesn't have any people left and he gives up. there's nothing fundamentally wrong with attrition strategy. we used it in world war ii, but what is your metric then for measuring success in an attrition strategy. it's a body count. so i believe as a military historian that a contributing factor is the attrition strategy and the idea that success on the

battlefield or success in a military operation is measured by how many bodies you have. presumably these are all the enemy. but the problem in vietnam is unless you're fighting the north vietnamese, no one is wearing a uniform. how do i really know if this is the enemy? i'm not saying it necessarily meant you're inflating body counts, although that certainly happened, but i think a contributing problem here is this emphasis on body count as a reason for success and so after my lai, for example, it is trumpeted as a big success because so many of the enemy have been killed. we never would today look at body count as a metric. general berger i think would agree that commanders today would be appalled if you

suggested body count was a metric for success. >> if i could add a couple things to that. for example, i found the 11th infantry brigade newsletter for this period that has a news feature on the my lai operation. and it talks about how they came in and killed 182 vietcong soldiers and captured three weapons. okay. were they sharing the three? i mean, similar problem, in the delta with general uel, killing a lot of folks, not finding a lot of weapons. now i argue in my book that westmoreland actually had a more nuanced approach to war.

it was not just attrition, not just body count, but things like weapons and chew his and rice and all the other things that go into war. one of the things struck me as bizarre about the operation, if indeed medina and callie and the rest told men before the operation, the idea was to go in there and burn down the houses and kill the livestock, right there, you would have went, wait a minute. that was not normal. okay. there were operations where like an operation in triangle, you would go in there, cordon the place off with south vietnamese forces, separate out the potential bad guys, evacuate the civilians to another safer location, and then you would burn down the houses and not kill the livestock. you would take the livestock away and give them to the people who owned them or give them to

someone who could use them. you only burned or destroyed rice if you couldn't haul it out. these are resources. so to go into a village without any plan of resettling them and say we're going to burn down the houses and kill livestock, it was not normal. it just wasn't. the other point about the operation, apparently, this was done. it wasn't written down. there was no operation, no fragos. just we're going to do this and that and the other thing. when they planned the artillery preparation, they often would use artillery to, as a shield to kind of drive it. the artillery bombardment was right on the western edge of the village. they never went to the south vietnamese district chief for permission. there are free fire zones in vietnam, but not when there's an actual village that does not

count. it does not count. so right there off the bat, someone should have been thinking, wait, this is not smelling right. >> i think you're right, but i think you have to have the intonation to smell before you do anything, because the first thing that should have happened was the 128, 182 weapons and 128 to 182 bodies, that should speak volumes to anybody who really cared about that. i would like to ask a question here, and the lawyers can hold forth. 79 hours in deliberation. i could remember, i have a friend in the audience here, we were second lieuten nlts. i don't think they should have spent five minutes deliberating on callie, so why 79 hours? do you have any theories? >> there were a number of imponderables. how many did he kill? how many should we find him

guilty or killing? did he do it at all? also, before i was a lawyer, i was a juror. we have to stay in a long time. have you got another cigarette? a lot of that went on. so there's no telling why, in my estimation, there's no telling why they took that long. you never know what the dynamic is in a jury. you know, every jury is unique. so who knows. these were six combat experienced officers. five had been in vietnam, one had seen combat in world war ii. and it's really hard to say why they might have taken that long, but i'll bet we would be very surprised. hey, did you see that on tv last night? that might have taken a couple hours. but you know, they realize that the eyes of the nation were on them. all of the reporters were in the room, and they realized this is not something we can make a snap judgment on. >> one of the other things to remember is there's no forensic

evidence. there's no csis coming in with forensic pathologists who say i examined these bodies and i could prove this is how the person was killed. there are no bodies. they are gone because it was covered up for a year. every piece of evidence you might expect to see on television is gone. so all you have is witnesses who are saying, well, i saw callie do this and that, and shot this person and shot this person. but i think gary is exactly right. he was charged with killing 109, but the panel came back and found him guilty of killing 22. so i think you're exactly right. all of whom are unidentified. there are no names. so i think that it took a while to sort through which witness really got it right, who can we really trust. then i agree with you, hey,

we're not just going to come back in five minutes. we have to make it look as if we're serious about this. i'm not suggesting it was easy, because i think someone must have said, well, are we really going to find him guilty of premeditated murder? how about manslaughter? could we go with manslaughter? or negligent homicide? i mean, so i'm sure there was discussion about that. >> the word about military juries. if i was charged with a serious crime, i would rather be tried by a military court any day. that's because your jurors are, unless you're requested by the accused, your juries are college trained individuals, officers trained to obey officers. when they get the instructions from the judge, i want you to consider this, you should not consider this, military juries do it. i think military juries, for example, i watched the o.j. simpson trial. i remember the lady who was placed on the jury late in the game.

she was asked if she read the newspaper. yes. what do you read? the daily racing forum. that's the kind of jury sitting for o.j. simpson. you don't get that in the jury. you get excellent jurors in the military. next question, how important was it in the massacre, and were other journalists important? >> notice how i passed that ball down the line here. >> there actually is a reporter in the montgomery, alabama, newspaper who broke the my lai story the day before hirsh did. and they only found out about it because somebody called him in montgomery and said they prefer charges at ft. benning against this lieutenant by the name of callie. hirsh, who became quite famous, won a pulitzer, still writes for

the new yorker, he broke the story the next day. hirsh is really famous because he got the interview with paul meadlow. and it was meadlow's interview in which meadlow admitted to murdering all the villagers in my lai that really broke the story open. and then hirsh was very smart. he pursued the story. he followed what pierce was doing. he wrote a number of books about the massacre, cover-up was one of them. and yes, i think you can't underestimate seymour hirsh's power in making sure that the story stayed alive. >> i should just say, i talked to seymour hirsh last week. as i invited him to come. and he basically said, you know, i don't go to my lai things, which i understand. it might become a bit of a

circus. if he did. but i'm looking forward to having a nice long chat with him. he has an office downtown here. and so i sent him a copy of my book and said, yeah, let's have tea. i hope to have a bit of a conversation. but yeah, he impressed on me, i said what could i say on your behalf? and i think the thing that really stood out for him is, as some of the comments were earlier, there were some really, really dark stuff that happened in my lai that not everyone knows about. you know, the sexual offenses, for example, really bone chilling. even now, aren't widely known. he said, if you ever go through and read all of the six volumes of all the testimony, it will -- yeah, it will make your hair stand on end.

so there's a really great summary report of the peers inquiry that's 400 pages long, that we're going to be posting on the website. but there's a lot more, if you really want to get down into it and read the testimony, there's a lot there. >> okay, this sort of speaks to the earlier topic of leadership. the question is did callie lead his platoon into my lai or lose control of his platoon and they were essentially leading him at that point? it's addressed to carl. >> well, i don't think was callie leading his platoon? yes, he was. the platoon entered the village. and it's callie who is the trigger, who is the metamorphosis that stops the guarding of the civilians and

begins their killing. there were some soldiers in the platoon who refused to follow his orders to execute the villagers, to kill them. but most did. so yes, callie was leading. he was recognized as the man in charge. and that's why my lai happened. callie had said we're not doing anything other than safeguarding these civilians and we'll take them and move them to another location, i don't believe we would be sitting here today. it would have never happened. let me go and make one more comment about the trials. after the second enlisted soldier was acquitted at trial and the defense was i was following orders, the army pretty much concluded that with the draftee army as it then

existed, it was very unlikely to get a conviction of a junior enlisted soldier who raised the defense of superior orders. and that's probably true, i think, maybe the cases should have been tried anyway, but as professor correctly says, the army really didn't have the stomach to follow through with these prosecutions. >> he asked what happened to general pierce? >> i know he never made four stars. >> well, there are many who believe that it cost him a fourth star. he was a phenomenal leader.

westmorela westmoreland, he believed westmoreland chose him to lead the inquiry precisely because he was not a west point graduate. westmoreland didn't necessarily think a west point grad wouldn't do a good job, but he was afraid that there might be some criticism that west pointers might protect their own. of course, this is a myth. it would never happen. but having said that, that was a joke. pierce is a ucla rotc product. and phenomenal career as professor solis says. he had been in burma, decorated with a silver star at least twice. and i think that pierce was so hard hitting and so critical and so right in what he did that he

like hugh thompson is another one of the real heroes here. did it cost him a fourth star? there's no way to know, but there's some people who believe it did cost him the fourth star. >> just to get another, you know, comment to emphasize what i think is a really amazing quality of the pierce inquiry. it is an absolute first-rate, unsparing investigative effort. they went to extraordinary lengths to get it right, to get the facts. and to call things out. and even if you just read the 400-page summary, you will be, i think, really amazed. in the photos i had running before the presentation, those all came from the pierce summary report. the fact they were able to pinpoint through all of the interviews the precise movements

of each squad and platoon through my lai and get a timeline that made sense shows you the extent to which they want to get the facts. >> the my lai inquiry available on amazon. every time i see one, it says like new, i buy it. i got three or four. and the trial, the court-martial of lieutenant callie, you have these two books. you have most of my lai. >> okay, this is for general berger. how is the my lai massacre legacy set the standard for non-military paid security forces, and when they act outside of the law, should they be tried under civilian or ucmj law? >> fred is whispering in my ear, easy question. thank you. wow. 3:30.

>> out of time, sir! >> i need a phone call. not an easy question. difficult problems, it goes back to the comment about the only sovereign who could have tried many of the soldiers who left would have been the south vietnamese had there been an interest. we often find ourselves as we craft our stratus agreements or letters of agreement or whatever document we go into a country with, wrestling through many of those issues. those are issues judge advocates wrestle through with their commanders and with their counterparts and whatever that nation may be, assuming that our presence is permissive. vastly different set of circumstances when it's a non-permissive environment. when we're there under some sort of agreement with the host nation, then that's something we try to work out ahead of time. is it going to be first crack,

does that go to the host nation in terms of the right to prosecute, or does it fall on us under the military territorial jurisdiction act? we can try those folks. sometimes easier said than done. we can bring them back, and there have been trials in the federal court system back here in the u.s. as well. there are venues. there are multiple venues, as a matter of fact. there are three or four different courses of actions right there, all of which can be pursued. but there are challenges. some of it gets caught up in contractual issues. were they within the scope of their duties? generally not, but that can often be raised as a defense. so you'll see many of these cases linger, both as civil litigation, as criminal litigation, and again, in any of the different venues. the tough thing, something we try to wrestle with ahead of time so we're not rakting but have a plan in place, but it doesn't always work out perfectly. >> i think general berger would

agree that today's prosecution, prosecutorial system in the military isn't the my lai system. my lai changed everything. it was my lai that generated the attention in the military for the law of armed conflict to be taught in an effective way. and today, we don't have the problems with jurisdiction that we had in 1971, 1972. so we see trials of individuals who, i remember the one in riverside, where there were three marines who had shot two prisoners, and they had gotten out of the marine corps to enstate in the reserves. one was a sergeant in the riverside police department. they charged him with the murders in hudson -- thank you, afghanistan. so today, it's not the problem that it used to be. and the military is very effective, in my opinion, today in seeing that criminality is prosecuted to the full extent it should be.

>> okay, the next two are connected, and they're for general berger. he might really want a phone call after these. the first question, given ongoing problems in the armed forces of sexual assault and abu ghraib, why should we believe the problem is solved? the second question sort of amplifies that perhaps. what threat do you think there may be in overtraining commanders and soldiers and then them becoming complacent? >> i'll take the second one first. we'll start with overtraining and complacency. i have yet to meet a well trained soldier who felt that one, he or she was too well trained, or that the multiple repetitions were anything other than a greater degree of precision and perfection. we get better at doing things by doing them. that is the simple reality. and when we need to be able to do things instinctively under adverse conditions, we need them

to happen based on how we train. and so i would submit to the questioner that simply doesn't happen. i think in the individual where it would happen, you have the wrong person who is not a good soldier. i think that's just a simple reality there. i think there would be enough other indicators that they weren't a good soldier that they would be short for our army. as to the question on sexual assault and do i think with the scope of the problem as alleged, do i think our prosecution or our system is fixed? i would tell you, i think we do a very good job. we take all of those cases that civilian authorities won't take. we take the cases where alcohol is involved, that a civilian prosecutor wouldn't touch. we take the case -- we take the hard cases. do we win every case? we absolutely don't. but we take the cases in an

effort to try to achieve justice for victims. and without sounding like a series of talking points or without sounding glib, the simple reality is, there is a demonstrated body of data that shows that we try the hard cases. you're not going to win the hard cases. if you have somebody who is a prosecutor says first rate prosecutor, i have never lost a case, the simple adage is you have never tried a hard case. and so we're not going to win them all. there are a number of things that point positively to where we have gone. our special victim council programs, our ability to provide counsel to the accused, not the government prosecutors, not the defense counsel, but individual counsel for the accused to help them through the process has been extremely powerful, extremely well appreciated by our victims. and has added a third party with standing before the bar. incredibly unique in our justice

system here in the united states. but all the services do it. and that's been a powerful multiplier. i think we have made significant strides. we often see the data will say, well, you have increased reporting. well, increased reporting means more people feel comfortable. so whether you want to say a very popular hashtag lingo of me too, right, that's increased reporting. that's victims who feel comfortable, who feel the system will be responsive to their allegations, who feel that they will get their day in court. and whether that's a day actually in court or whether that is simply the services they need to recover and somewhere in between, i think we do a great job with that. we're not perfect. again, we're an organization of human beings. but we try to only make a mistake once and learn from it. >> we should recognize the extreme difficulty in proven some of these sexual offenses without fresh complaints. as a prosecutor, i dreaded 20

years ago, but so much worse now when you have a victim who comes forward and says six months ago. six months ago is an extremely hard case to prove. you have no physical evidence. you have no contemporaneous evidence you can see. all you have is, as they say, he said and she said. that's really a damn hard case to prove. and the military takes them on all the time. >> thank you. i have been told by our monitors here we have time for one more question. this one is a bit philosophical, which is probably presented to the wrong guy here. but the question is, where are these american soldiers now? does it serve public interest for them to share their stories publicly to bring healing and/or closure to the events of my lai. i'll address the entire panel here. >> okay. according to the source of all knowledge, which is either

wikipedia or google, callie is still alive. he was born in 1942 so he's 75, 76. he lives in gainesville, florida. he has never apologized or admitted responsibility. he still says he was following orders. he did at a kiwanis club luncheon, i think a kiwanis club, might have been rotary, some years ago, said he was sort of sorry for what happened at my lai. i think that's about it. ron ridenouer is dead. he died in his 50s while playing handball. very sad. hugh thompson has passed away, as have the two crewmen who were with him on the helicopter. they're also both dead. samuel died five or six years

ago. earnest medina, i believe, is still alive. paul meadlow is still alive, and that's a very interesting story. meadlow, the one who admitted to killing all of the villagers at my lai, the following day, my lai stepped on a -- meadlow stepped on a land mine and it blew his foot off. and he insists that that was god's punishment for what he had done at my lai the day before. he is still alive. he lives in indiana. the last time i checked, many of these people, because it's been more than 50 years ago have passed from the scene, so certainly, i think, it probably would be a good idea if they wanted to talk. but that's not really up to this panel. >> i would just simply add that as a learning organization, with or without those soldiers'

presence, we know their stories. we know most of the facts. we won't know why it took 79 hours in the deliberation room. we won't know why they did some of the things they did. but we've got enough to learn the lessons, and i think that's the more critical piece. yes, there is a fascination that would follow from having their physical presence here and their participation, but i don't think it's at all necessary for us to move forward. >> if i could just make a few observations about my experiences overseas. i went to afghanistan, kandahar province in march 2010. the 5-2 stryker brigade. it was a kill team that was operating at the time. sergeant was sort of the ring leader. and basically some thrill kills

that came to light a couple months or two after i came home. it was ironic because when it first came to ramrod, the 2-1 headquarters, i walked in the s-2x shop, and they said, oh, the one guy said oh, you're here for the other guy, literally -- no. okay. so at the time, they were investigating these killings at the time. and it came out later. so i tell you what really impressed me was the commander, everyone else, is how seriously -- i didn't know about the investigation, but how seriously they took any allegation. i remember one of the afghan contractors apparently got shoved by an american soldier. the battalion commander just read the riot act. you do not do that. he was serious.

the second vignette was when i went to camp eric john in september, october of 2014, when the isil situation was beginning to heat up over there. the general was a three star who was essentially running the war from a camp in kuwait. the last person he would look at before he gave an order, literally, there were times when we were looking at a satellite feed of an individual isil soldier somewhere out in iraq, and general terry was going to give the order for a drone to drop a bomb or an f-18 or whatever. the last person he looked at was the jag. if the jag said no, it wasn't going to happen. every level, they were, you know, minding their ps and qs, and it was very impressive. i think that, again, whatever the individuals that may be with us from my lai, i think we have learned a lesson. in many ways.

i think let's not forget. >> this sort of brings us to the end of our session. i would like to thank the panel of my learned colleagues for sharing their experiences and knowledge. but also i would like to thank all of you who came out today. this was an ugly day in the history of the u.s. army and the united states of america, but it's one that we should never forget to make sure that it never happens again. thank you. [ applause ] on c-span this week in primetime, tonight at 8:00 p.m. eastern, perspectives on gun control from the march for our lives rally.

wednesday at 8:00 p.m. eastern, former white house communications director anthony scaramucci is interviewed by democratic political consultants bob shrum. >> when he got the job, just like building a condominium or just like building a golf course or just like developing a television show, he said okay. i've got this job. i have to go down to the swamp. i have to drain the swamp. i've got to hire people that understand the swamp. and i think what he's learned is that you're not going to drain the swamp hiring swamp monsters. >> thursday at 8:00 p.m. eastern, embedded journalists on their experiences in mosul, iraq, documenting the fight against isis. >> trying to get you to care about someone that speaks a different language, born in a different country. has a different color skin than you do. totally different background. not born with the same privilege as you are, and try to make you care about their life and understand the parallels between yours and theirs. >> friday at 9:30 p.m. eastern,

former reagan adviser and advocate for what's been called trickle-down economics, arthur laffer. >> it's really, really true that there are consequences to taxation. and those consequences are the same across the whole spectrum. you cannot tax an economy into prosperity, period. >> this week in primetime on c-span. for nearly 20 years, in depth on book tv featured the nation's best known nonfiction writers for live conversations about their books. this year as a special project, woerrr featuring best selling fiction writers for our monthly program, in depth fiction edition. join us live sunday at noon eastern with walter mosley. his most recent book is "down the river unto the sea." his other books include "devil in a blue dress," "gone fishing"

and "fearless jones." and during the program, we'll be taking your calls, tweets, and facebook messages. our special series, in depth fiction edition, with author walter mosley, sunday, live from noon to 3:00 p.m. eastern on book tv on c-span2. >> monday on landmark cases, griswold v. connecticut. planned parenthood challenged a connecticut law banning the prescription and use of birth control. the supreme court ruled the statute to be unconstitutional, and in the process, established the right to privacy that is still evolving today. our guests are helen, law professor at george mason university's antonin scalia law school, and rachael ray bushea, associate for research and a law professor at temple university. watch landmark cases monday and join the conversation. our hashtag is #landmarkcases,

and follow us at c-span and we have resources for background on each case. a landmark cases companion book, a link to the national constitution center's interactive constitution, compa book, link to the national constitutional interactive constitution, and the landmark cases podcast at c-span.org/landmark cases. >> now the first program in our nine week series, 1968, america in turmoil. we begin with the vietnam war. covering the major military, political, and diplomatic developments in the war that year. our guests are vietnam veteran and former navy secretary jim webb and author david maraniss. we begin with a video in the state of the war in 1967 produced by u.s. naval photo graphic center. this is american history tv. >> these marines