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'm mark cansian. 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. we're very pleased to welcome them here to csis. csis' project on military and diplomatic history endeavors to bring historians into the -- to 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 or simple administrative announcement, that is in the case, the unlikely event of an emergency, i'll give instructions about what we'll do. we'll either stay here or go out the front door or the back door. so now on to our panel. i just want to introduce our moderator. dr. james willbanks. dr. willbanks is a vietnam veteran. career army officer. he teaches at the army command and general staff officer -- 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 have us moderate this panel. over to you, dr. willbanks. >> i'm pretty sure they put me on the end of the table there, see if i'd fall off and maybe add some lefty here tovity to a desperately needs some. it's my privilege today to act as a moderator of this discussion of what professor howard jones said in his recent book, a descent into darkness. 50 years s ago tomorrow. elements of company "c" first battalion 20th infantry, from the americal division air lifted by president 174th assault helicopter company into a group of hamlets in sonmy village, sonmy district. once on the ground, the unit began to search the area in

search for 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 but eventually it came to light, resulting in a high-level investigation by the army, not only of the massacre but also of the cover-up. 13 officers and enlisted men charged with war crimes, another for having actively covered up the murders. ultimately, however, only six soldiers were prosecuted court the marshal and only one tried was found guilty. my lai became a flashpoint in the debate over the american involvement in vietnam and continues to have implications for military operations today. what we have here is a distinguished panel of leading historians and military legal

experts to discuss the important lessons and legacies of the my lai massacre. i'll briefly introduce our panel members. for more information on their impressive backgrounds, i refer you to the program. i'll introduce them in order they'll be speaking. first eric, military mhistorian ft. mcnair. author of the recently published book "combat operations: staying the course." he will be talking about the strategic and operational overview. our second presenter will be colonel retired fred iii who's a career military lawyer in the u.s. army jag corps serving from 1980 until 2005. he is currently historian and archivist for the jag corps. our third presenter is dr. gary solace, retired marine of 26

years of active duty, twice serving in vietnam as an armor officer. also served as a marine judge advocate and court marshal judge. currently an adjunct professor at west town and george washington. author of a number of book onop. he'll be talking about other cases involved in the my lai massacre. our last presenter is brigadier general joseph b.berger. u.s. army court of criminal appeals. he's a west point graduate and served as president since june 2017. additionally, served in germany, somalia, iraq, afghanistan, and a number of stateside appointments. before he begins his remarks, perhaps a bit on the rules of engagement. once all 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 are addressing your question whether it be to a specific panelist or the panel in general. so without further adieu, eric, the floor's yours. >> testing. testing. all right. again, thank you all for being here. i mean, this is -- this is really incredible that we have a full room like this. i've been to csis now a few times and this is capacity crowd. i'm glad you hoo're here for th important event. i'm here to give you a little bit of background on the strategic and operational situation to the my lai

massacre. the province we're talking about in the northern part of what was then south vietnam. going back to the first indochina war when the french still controlled vietnam and the colony, most of the countryside was under control of the vietmen, the predecessors of the vi vietcong. 1968, 1950, 1952, the government controlled basically the regional towns and thin strip of territory along highway 1 which was the main north/south road that ran through the coastal ruins. in that respect, not a lot had changed. 1954, the geneva accords, created a cease-fire for france to withdraw from the country, the terms of the accord created a temporary division for the country between north and south,

and a period of time where people could move from one area to the other because the north would be controlled by ho chi minh's communist party and the south would be controlled by a non-communist government. the idea being that there would be national elections in 1956 to decide the issues of reunification. so most of those vietcong soldiers and cadre went north after 1954. the idea being that they would go north for additional military training and ideological preparation for future contingencies, but at the time, the idea was that the vietmen who remained would stay there to organize the political struggle prior to the elections. we well, i think as we know, those elections never took place. ziam became the president of south vietnam and called off the elections because he felt,

probably correctly, that there was no chance that they would be free and fair and would probably go to the communists and by 1956, he began a very vigorous, indeed, brutal, campaign, to exterminate the vietmen who stayed behind. so from '56 to '59 was a very break time for t bleak time for the communists. majority of them were hunted down or killed and arrested. in 1959, north vietnam decides to begin supporting an armed insurgency in the south because the southern cadre were just getting clobbered. in '59 they began sending troops and material, first very small numbers, but growing numbers in the years to come. by '61, they were -- they called themselves the people liberation armed forces.

operating in quanghi province. 1956, when the united states intervened military, quaunghi had once again become a communist stronghold. just the other day i actually found the after-action report from an operation in early '65, some american advisers were part of this. it was a south vietnamese operation but it was in songmy village. the maneuver was almost exactly like it would be 1968 and read the report and they said we went into this village, there's tunnels everywhere, there's booby traps everywhere and there's nobody, there's no men. so by '65 you really have this chew nuommunist stronghold very in evidence. so moving forward, as the pwar expanded, by late '67, the american troop commitment is going toward half a million. on its way to 525,000 which was

the authorized limit at the time. in in this area of the country, southern icorp as it became known, four military zones. icorp was the northernmost. quanghi s irki was the southernf icorp. the principal american force in the region was first something called task force oregon which was a conglomeration of brigades that were kind of thrown together to bring moreecur sy to the region and that transformed into the americal division. so by the end of '67, beginning of '68, you have got this new division that is still forming and based around the 196 brigade which had been in country for several years now, pretty experienced. two new infantry brigades which

had been raised specifically to fight in vietnam. the 11th which is trained in hawaii and the 198th which is trained in texas so you have three light infantry brigades. it's a big stretch of territory from the lower part of quangnam. these new units, the 11th and 198th, arrived basically at the end of 1967, so they're new. some of the authors will talk about some of the training issues they had, but the arrangement was that part of this unit, the americal, would protect the southern districts in quangni and part of it would protect the northern districts so basically binson in the northeast on the quangtin border

was an area for the americal. 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 into this district and within a few weeks, they create this special task force, task force parker, made of three companies from different battalions or different -- the regiments. to protect this area. so keep in himind here, this is new division 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, you know, a number

of battalions and companies draw in from different parts. the main focus of this area was the guerilla and vietcong local force war. there were several nva divisions operatiperating in southern ic.d they were fed from the ho chi minh trail. these big divisions would go back to get supplies and ammunition. it was these what they call local force battalions, vietcong divisions, particularly the 48th we heard about. their responsibility was to operate in a specific district and create, 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 b1 front but they'd also support the local guerillas so think of it as "a" baseball, aa, aaa and the majors. right? local force guys are like aa, ligh right? aaa, that the provincial battalions. the "a" are these local guerilla companies. so that's the 48th. it's operating, again, in a relatively constrained area and has very close ties to the population. that's where it's getting the food. these big nva divisions are getting their men and weapons and ammo from the trail but not their food. that's grown locally. so the 48th is the one that's helping arrange that. so the thing that really changed

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

countryside because, again, if you -- once you got off of highway 1 outside the regional towns, there wasn't much of a government presence, so there was a big initiative to try to finally turn that tide. when the tet offensive happened, a national, nationwide attacks, the 40th battalion and every other vc unit in quangni province participates in attacks on regional towns and the rega n regional company kpapital. the 48th is hurt quite badly in the process. so after tet, there is a real desire to get after these vietcong units that had been so badly damaged during the tet offensive and knock them out. you know, once and for all. so that this revolutionary development program could, in fact, start to get some headway.

so that was the concept behind task force parker, who it was doing in february and march and to seek out who the biggest threat was locally. in thais case, the 48th battalion. a battalion which had attacked and overrun headquarters before. generally had, you know, 300, 400, 500 men, but was down to about 100 now apparently. so the thought was, okay, let's go and clear them out and where did they go, what was the area, where'd they go to lick their wounds? that was sontin district and places like my lai. that's why the americal division asked for the authority to operate outside of its normal zone, right. so they said, you know, 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 -- with that in mind, you know, in the march timeframe, the push to get the program back on track was, you know, was visible throughout the country and so the -- it was the american units, really, you know, who had the mobility, who had the firepower, to go into these normally vc areas where the south vietnamese troops didn't like to go. and so that was why the americal was operating in this area, it had the ability to do things the government didn't and with all the dislocation of debt, there was a lot of pressure coming down to the general at the americal division and every other division commander 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 was an opportunity,

hopefully, they thought, to take out what had been a real thorn in their side. and with that, i will pass it to the next person. >> thank you, erik. >> 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 the army's legal center and school, a reporter from the german broadcasting network, deutschevella wanting to do anner be interview with me about my lai recognizing the anniversary is coming up. i think tomorrow which is the actual 50-year mark, you'll be reading about my lai and obviously it is important even

though it happened a half a century ago. as i look out in the room, a lot of you were alive a half century ago. including me. i was a teenager. i remember my lai. he's only 29 or so. but most americans don't remember my lai and will give you a rather puzzled look if you say rusty cally? i want to talk about three things. first thing i want to do is talk about rusty cally, lieutenant cally who was court marshaled at ft. benning, georgia. i want to talk a little bit about what happened on march 16th, 1968, then finish up part three of my remarks, the aftermath of the cally case. so a little bit about william laws, rusty cally, known as rusty because of his red hair. not a big man.

5'3" or 5'4". not a very good student. finished 666th in his high school class of 731. some of you might think 666 is not a coincidence. at ocs, 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, or four, you can go to one of the academies, rotc, ocs, and we do have some direct appointees. today, you have to have a college degree to get into army ocs. back in cally's era, you didn't even have to be a high school graduate.

cally was very much a low quality kind of officer, but we needed officers in 1968. he had 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, 2nd lieutenant cally is in vietnam with the americal division in charlie company commanded by captain earn est medina and he' going on what they fully expect to be a serious mission. intelligence is they're going to be facing the 48th vc battalion, as dr. villard talked about, told they're going to be outnumbered 2-1, 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 cally and the soldiers are nervous. they're afraid. as dr. villard 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'd been harmed, injured, by booby traps and a very popular sergeant in the company had been killed a couple days earlier. b so the soldiers are nervous. they're an fticipating a big fit and that isn't what happened. they' they're airlifted in by helicopter. they get to the hamlet of my lai about 7:00 a.m. in the morning and there's no one.

fire coming their way. there's no sign of enemy action at all. there are no booby traps. there are no mines. 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 around their -- 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 cally 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 huches and cally 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, cally comes along to a private 1st class by the name of midlow and he says to midlow, how about taking care of these villagers? then cally walks away. and some time later, he returns and says to midlow, i thought i told you to take care of these villagers. and midlow says, well, we are taking care of them, we're watching them. and cally replies, no, i mean kill them. and so in the next couple minutes, cally and midlow open up on the unresisting, unarmed villagers with their m-16s and begin to kill them.

and by the 11:00 a.m. mark, 4 hours after they've entered the village, as dr. villard said, between 350 and 500 civilians have been killed by cally and his men. there were certainly some soldiers who refused to open fire on these civilians, but most of the men in the platoon of whom there were about 20 did so. and the result was this horrendous massacre, this horrendous war crime. a real tragedy. a couple of things are important here. the first thing is that while the massacre, 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. 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 ch e chasing fleeing vietnamese to put a stop to it and instructed his door gunner, a soldier by the name of larry coalburn, that if 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 the 2nd lieutenant who we believe was not cally but a lieutenant by the name of brooks who was subsequently killed in action and they did break off the chase.

thompson, therefore, saved some lives. 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 was later decorated by the army, up fortunately quite a few years later, recognized for his noncombat heroism with a soldier's medal. professor solace will talk about some of these individuals but the company commander is captain commander. he's not actually in my lai but he and his first sergeant are adjacent to the village. certainly every reason to believe medina and his 1st sergeant knew what was going on. medina, by the way, is a decorated combat veteran, silver star, well liked by his men.

task force barker, as villard said, was named after lieutenant barker who was the lieutenant commander. barker is later killed in a helicopter crash. that's one of the reasons we never talk about a court marshal for barker. the brigade commander is colonel henders henderson. he's only been in command from the day before. the day before. and then finally, the americal division commander is samuel coster. he's a fast burner. protege of westmoreland. going places. in fact, coster is the superintendent at the military academy after vietnam. so this is what happens that particular day. calley and his men open fire on these unarmed, unresisting villagers and kill 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. cover 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 macv directives to investigate all suspected war crimes and investigate them. almost immediately colonel henderson reports to major general coster that at most, maybe 20 noncombatants 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 ron ridenhour and had not been at my lai, had not participated in the military operation but he knew some of the soldiers who had been there and began to hear about this massacre in which a lieutenant by the name of calley as he spelled it in subsequent letters, k-a-l-l-y, had taken part. and ridenhour has such a sense of justice that he writes a letter to the president, the white house, 23 members of congress, the chief of staff of the army, everyone he can think of, saying we got to take a look at this, look at this war crime.

general westmoreland, chief of staff of the army at this point, gets the letter and immediately instructs his inspector general to begin doing an investigation. we begin to uncover the war crimes. there's also a subsequent investigation headed by lieutenant general ray peers. very famous peers inquiry that looks into the atrocity and the peers inquiry is really the gold standard when it comes to understanding what happened at my lai. calley obviously is identified as someone who's actually a trigger puller here. charges are preferred against calley in november 1969. so the massacre, the event, march 16th, 1968, ridenhour's letters don't start coming in for 13 months later then calley

is charged november 1969 and he is prosecuted at ft. benning. trial opens in november 1970. november 1970. peers actually recommended charges against about 25 others and professor solace will talk about some of these other cases. only six are court marshaled of whom calley is the only man to be convicted. so the case opens at ft. benning, georgia, and two rather inexperienced judge advocates in the sense that they're army lawyers in their first tours as j.a.g.s are given this case to prosecute, which looking back today i think is quite mi mind-boggling, but i guess lawyers were really good back then.

a lot of pressure in bringing this case. 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 about why we should be there and is calley 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 calley murdered these people when he shot them. he and his other conspirators, co-spoor t co-conspirators, he's charged with murder. the defense is calley was only following orders. calley insists 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? the jury sees it the government's way and calley is convicted of premeditated murder and the finding comes back march 29th, 1971, but it wasn't really an easy case. the jury of six, a colonel, four majors, and a captain, spent 79 hours in deliberation. 79 hours in deliberation. so we can talk more about the case later, but let me just tell you that in an unprecedented move, after calley is convicted, the president of the united states, richard nixon, interferes in the case and directs from the white house that calley 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. so as the case winds its way through the system, nixon eventually decides to take no more action. calley has been found guilty of premeditated murder. he's sentencing 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. ca calley's gone to leavenworth by now but under the rules as they existed at the time, once you'd served a third of your sentence, you were eligible for parole. so if you added the six months he spent at leavenworth plus his time under house arrest, calley's eligible for parole and he is paroled, 9th, november,

1974. you often hear that nixon pardoned or commuted calley's sentence. not true. but he did interfere in the case and as a result, calley did not go immediately to leavenworth. thank you very much. professor solace? >> gents, ladies. the fact that military justice didn't make sure, the fact is that himilitary justice didn't make sure that those responsible for my lai and its cover-up for properly punished. i feel that those trials and nontrial results are totally inequitable. that's a quote from lieutenant general william peers who conducted the peers investigation.

i'm with general pierce who led the 92-strong team that definitively investigated my lai. it was peers who brought charges against those soldiers who were tried for my lai as trigger pullers and against officers who covered it up for more than a year. how many unarmed and defenseless vietnamese old men and women, children, were murdered? how many women and young children were raped and gang raped? how many of those women and young female children had their vaginas ripped by bayonets wielded by calley's soldiers? in 1970, the american public never heard about those sexual offenses but it's the epic failure of american military justice 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. desertions and drugs were the order of the day with violence, racial conflict, the constant background. fraggings weren't unusual. court marshal numbers were at record highs. to establish my military law bona fides, from 1972 through '76, i prosecuted 433 courts marshals. i never defended. as a military judge in the mid '80s, i heard another 331 cases. and in the '70s as a young lawyer, i'd already been in the court for eight years, i heard the details of the my lai cases. i understood what had happened and i was appalled. i remain appalled. the military -- the my lai cases were american military justices' 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 my lai war crimes occurred on 16th, march, 1968, on 24th, november, 1968, general westmoreland appointed lieutenant general william peers to investigate the my lai war crimes. congressman mendel rivers announced hearings regarding my lai through an investigative subcommittee which will play a role in a moment. on 17th march of 1970, general peers' investigation report was released to the public. 12 officers charged with ucmj. i didn't start my clock. clever. 12 officers were charged with ucmj cover-up offenses. the convening authority, the general officer who has the authority to make a court marshal happen, was lieutenant general jonathan segman, commanding general to the 1st

army. after february 1971, seeman was replaced as commanding general by lieutenant general claire hutchin. 12 cases charging my lai cover-up were preferred by lieutenant general peers and sent to general seeman's headquarters for referrals to a court marshal. only one of them made it to court marshal. 13 additional charges for war crimes for the trigger pullers were sent to lieutenant general albert connor. commanding general of the third army. a total of 25 cases, already complete with charges brought by peers. 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 from surviving vietnamese victims as well as every u.s. soldier involved in the my lai operations. over the next three years, the

12 officers charged with my lai cover-ups plus two chaplains not previously mentioned, fared well. first major general samuel coster. we already heard about general coster. his charges were dismissed the day before general seeman retired. he did issue a letter of sencene to general coster, reduced him to brigadier general and withdrew his distinguished service medal and relieved as superintendent at west poinpoin. when i tell cadets that at west poi westpoint, they can't believe that. general peers wrote, i was especially disturbed by general seeman's dismissal of charges against the senior officers especially in general coster's case. in effect, it was a travesty of justice that would establish the precedent that would be difficult for the army to live down. yet, other officers charged with cover-up did better.

lieutenant colonel william ginn accused of failure to avoid a lawful order and dereliction of duty. major david g. gavin, failure to avoid a lawful order, dereliction of duty, false official statement. charges dismissed prior to trial. major freddy wattky, dereliction of duty, charges dismissed prior to trial. major charles calhoun, dereliction of duty, disobedience to report possible war crimes. charges dismissed prior to trial. lieutenant kenneth boatman, diso pe disobedience of a lawful order. lieutenant dennis johnson, failure to obey a lawful order, yes, charges dismissed prior to trial. and captain carl creswell, chaplain corps, united states navy, excuse me, army, told his superior, lieutenant colonel lewis of warrant officer thompson's observations from his helicopter over my lai. told no one else as required to do by a standing order, only his

boss. the charge, disobedience of a lawful order dismissed by secretary of the army, stanley reesner, before the case even reached general seeman. lieutenant colonel francis lewis, division chaplain, d disobedience of a lawful order, dismissed by secretary of the army reesner. even more disturbing to anyone slightly far with military justice, four of the cases were dismissed without an article 32 investigation having been held. article 32 was a preliminary -- required preliminary before any general court marshal, it's been said to be akin to a grand jury proceeding to determine whether or not there's probable cause to believe that a crime has been committed and has been committed by this individual. general george young, assistant brigadier general george young, assistant division commander of the americal division, general seeman dismissed all his charged as unsupported by the evidence,

without an article 32 investigation. colonel parson, failure to avoid a lawful order, dereliction of duty, dismissed without an article 32. lieutenant colonel robert looper, failure to obey a lawful order, dismissed charges without article 32. major robert mcknight, dismissed without a 32. why were these four officers not parties to an article 32 investigation? how did general seeman determine there was insufficient evidence to take them to trial, the reason given for dismissal of charges, when he didn't convene the very proceeding to make that determination? we'll never know. neither the ucmj nor dod authorities require convening authority to detail this. i found no writing to explain how general peers could have found probable cause to charge 14 officers, counting the 2 chaplains, and been wrong in 13 of those 14 cases. the 14th officers cover-up case,

it went to trial. colonel orrin henderson, accused of dereliction of duty, failure to avoid a lawful order to report war crimes and false official statement. he was tried by a general court-martial with members, that is a jury, which resulted in his acquit. the acquittal very strongly smacks of jury nullification. we can't know that as fact. general peers said of colonel henderson's acquittal, if his actions are judgedd as acceptable, the army is indeed in deep trouble. then there was the 13 addition the 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 connor. for example, sergeant esquiel torres charged with murder, charges d s dismissed before t.

with an honorable discharge. private mack hudson, charged with murder, dismissed before trial. discharged with the convenience of the government under honorable conditions. private gerald smith, murder, dismissed before trial, honorable discharge. sergeant kenneth hodges, charged of assault dismissed, discharged, honorable conditions. william dougherty, murder charge, honorable discharge. kenneth shield, corporate, murder charge, dismissed. discharged under honorable conditions. 1st lieutenant thomas willingham, charges of false official statement, failure to report a felony, dismissed prior to trial. honorable discharge. article 32 investigations in those eight dismissed cases, i've not been able to locate any source that mentions article 32s. i expect none of the eight soldiers mentioned did have an article 32 to determine probable cause, 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. all five were tried at gerald courts-martials with members. sergeant david mitchell, charged with assault with attempt to commit murder. refused to provide mitchell's defense team with the transcripts of testimony of four perspective of prosecution witnesses for the subcommittee. the transcripts were needed by mitchell's defense team for-exa four. the congressional refusel held to be a government violation of the act which requires military members to produce defense-oriented evidence for the defense, resulted in the court's order, no witness who appeared before the subcommittee would be allowed to testify at his court-martial, thus the prosecution was fatally wounded.

mitchell was acquitted. sergeant charles huddow, 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. the members took less than an hour to acquit. captain bowie knife and questioning a vc suspect during which time he cut off the tip of his finger. he claimed it was an accident. the members took less than an hour to acquit. here's the interesting case, in my opinion. captain ernest medina, the c.o. of calley's platoon. he was charged with aggravated assault times two, premeditated murder of not fewer than 100

vietnamese and my lai, and premeditated murder of an adult female and a male child. a charge of failure to obey a lawful order as well was -- excuse me -- a charge of failure to obey a lawful order was inexplicably dropped before trial. the case was defended by f. lee bailey, at the time a very prominent defense counsel. medina was not charged with making a false official statement, ucmj article 57 or with dereliction of duty or with disobedience of a lawful order to report a law crime or with a felony. all seemingly viable charges. instead, he was charged as a principal to murder, article 77, requiring for conviction as an aider or abetter that the

accused shared the criminal intent of the perpetrator. proving specific intent is always a challenge. proving it to a co-actor once removed from the alleged principal actor is a very high bar for a prosecutor. it was a very strange charge to bring. the prosecutor failed to call former soldiers whose testimony in earlier proceedings placed medina within my lai when the killing was going on. nor could the prosecutor get the my lai photographs into evidence, although they were on the cover of life magazine. a trial observer, then writer mary mccarthy. she wrote despite the prosecutor's familiarity one would think at this time with the my lai matter, they appeared surprised and scolded and corrected by the judge. l.a. times reporter noted that many thought the prosecutors were simply not up to a contest with bailey, noted defense

counsel. closed quote. pursuant to the prosecutor's request, the prosecutor's request, the military judge instructed members, the jury, the accused could be convicted only if he knew his men were committing or were about to commit war crimes and he failed to stop the acts. the military judge emphasized that actual knowledge, actual knowledge was required. 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, 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 six my lai cases that went to trial, he should know.

we heard about the case of lieutenant william callie, trial counsel was captain aubry daniel. finally at the right moment, and i know that fred agrees with me, finally at the right moment in history, the military justice system got it right. aubry daniel, 25 years old, was pitch perfect throughout the callie trial. thorough, spectacularly competent, outlawyered everyone in the room including the capable military judge. so seven soldiers at least should be remembered at my lai who refused to obey orders to kill. michael bernhart, herbert carter, robert maple, dennis hunting, joseph dercy, leonard gonzales, all refused orders to kill unarmed civilians. the courage of helicopter pilot hugh thompson was beyond heroic.

so of 27 my lai cases again counting two chaplains who are usually not counted, 21 were dismissed before trial. 21 entirely dismissed before trial. at least four of those were without article 32 investigations. six cases went to trial. five of them resulting in acquittal. three of five acquittals prosecuted by one judge advocate. trial lawyer's axiom is no trial is too hard for the lawyer who doesn't have to try it. still, judge advocate's first loss was huddle, whose acquittal sounds like jury nullification

and if it wasn't, it certainly rhymes. the prosecutor can't be faulted for losing huddle. reasons for second acquittal are unknown because there was very little media coverage and court-martial acquittals have no verbatim record of trial as do convictions. only a summarized record, usually less than a page long. so there's no way to examine the record to reflect on trial tactics and legal strategies. looks like a simple prosecution case but we weren't there. captain medina's case is another matter. though an acquittal leaves no verbatim record to examine, media coverage of the medina case tells a damning story, more significantly questions raised by the government charges suggest legally deficient approach to the case from the outset. combine those points with the prosecutor's own writings on his prosecution of the case and it appears the trial strategy and command of military law were lacking.

from selection of charges to jury instructions. in my opinion, medina was winnable, lost through prosecutorial inept i tud. the final trials are cases that were not charged, conduct went unexamined and not tried. two known cases, few in this room have heard the names, but they were among the worst uniformed criminals in my lai. videos wits forced women to strip and murdered them when they refused to have sex with him. the other allegedly forced a woman to perform oral sex holding a gun to the head of her child. event sworn to by callie in his trial. yet they were never charged, despite sworn statements to cid describing their criminal conduct. is there a reason they weren't charged? i believe there is. although it can never be proved. i believe higher military authorities didn't charge them for the same reasons they dropped 21 and 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

on-going 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 convening authorities wanted the whole damn my lai case to go away, with as little media attention as possible. thus, 21 my lai cases, sworn to by a lieutenant general supported by a handpicked team of military lawyers were dismissed without trial, without legal explanation. thus assuring no trials, no publicity, no national outcry. the tragedy of my lai didn't end when the last round was fired. >> well, 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, an act on lessons of the past.

i hope to be the good news coda to the story. cicero famously asked whether or not laws are silent in time of war. i think the answer is absolutely not. but there are prerequisites to have an army and in order to fight a war such that the law and rule of law remains. it requires a professional disciplined army with institutionized training and self policing, it requires knowledge of the law of armed conflict to be treated as core competency among professional soldiers, and requires leadership, officers and ncos who are adequate in character to the task at hand. when we look back at history and look back at the pierce inquiry, he found we lacked a professional, disciplined army, reliance on drafties, again, not a single cause in and of itself, but certainly a contributing

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

on the 6003rd day in afghanistan, that moral and legal ethical foundation has to remain solid. what is it, what are the three things? it is comprehensive integrated nature how we train and ensure compliance with the law of armed conflict. we do it from entry level training through senior service colleges that are at our highest level, for sergeants, majors at the academy, we do it from cradle to grave. we do it in the classroom, we do it in practical exercises, and we incorporate it in large scale training and 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? second thing you need to know that's changed is the role of judge advocate.

i got it. many would cringe to think really, more lawyers? that's a solution? but i tell you, the people asking for more lawyers today are not the lawyers. they are the commanders. and i submit to you, it is not because they're gun shy and afraid. i won't list names, but commanders i 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, right limit of what is the law, what are the policy limitations, but to be counselled. we can do it, but should we do it. and to be part of that commander's inner circle, to be part of that discussion beyond the can and could to the should. it is integration with the staff at every level and it's present in every formation from brigade up. brigade combat teams have three judge advocates. a major and two captains and

they have a series of paralegal ncos underneath them working across the formations. different types of formations have different numbers beyond bcts, but we have lawyers at every echelon. so with that training and presence of those judge advocates and quality of the junior leaders, the final thing i think is required, especially our ncos, we have an all volunteer army that invests heavily in the training and education of our force. and that makes the difference i think today. so what do we do differently now than then? in 1972, judge advocate recommended to the judge advocate general out of the peers inquiry we ought to have a war law program, ought to have what became the dod law of war program. in 1974, that program 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 training requirements, the professionalism of our force, of junior officers, of ncos would follow in time with evolution of the all volunteer army. the two things i highlighted you needed to know were critical. it became the precursor for what became known as operational law. if you're involved in academia, you hear it called national security law. over the last 25, 30 years, it was the active evolution and rapid evolution of operational law, that is judge advocates, the staff, and commanders working together to ensure that operations were within compliance, to treaty

obligations, to fundamental principles of law of armed conflict and to national policy limitations that are part and parcel of every operation we are part of. it was dod mandated. and it required extensive law of war training be provided to all 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 train. 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. moved it 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. peers report talked about training as lackadaisical, like a stack of cards in your pocket as a soldier that provides, pretend to give you guidance, again, once they're wet, nothing

but pulp, 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 because it is part and parcel of how we training. 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 like leeber institute, 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 provided it 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 training combat 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, treatment of civilians you need to remove to identify and engage the enemy. we do that. we train at every course, at precommand course, and we train at 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. and that's the rule for us. it doesn't necessarily have to 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. we're an army that reflects the society from which each of us comes from. so guess what, we get bad apples and don't always weed them out in time. you take a case like june 2012. first lieutenant comes down to take over a platoon. clint lorance was an aggressive lieutenant and had his own ideas how the war in afghanistan

should be 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. 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 ore would logically come through chain of command. what soldiers knew was their rules. if they don't witness hostile intent, it is 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 turk mounted weapon to engage the same motorcycle, that soldier is successful, kills two of 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 to 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 amer kyle division. he sat them down with 25 years of scar tissue, talked to us quite awhile about law of armed conflict and about rules of engagement and about 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 elective at 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 prevents everything else we do in the school house. i remember when reading about this, one of the soldiers said why did you follow on an unlawful order. he said at the platoon, there ain't unlawful orders, are you crazy? i wouldn't tell my lieutenant i wouldn't do that. in situations like on this 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. he told this to the chaplain, creswell, 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 for many years thompson was ignored. it wasn't until 1995 that because of efforts by historians who knew about thompson that the army finally came through with a soldiers medal for him, the highest award for noncombat heroism 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?

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, this is for gary, 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 carr lawyers in vietnam, so i talked to virtually all 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 fire zone. goes on, ends up asking the larger question is there a

problem with corporate culture and you can define it as command climate, search for the body count. i address that to the panel, 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 to maneuver strategy, for example. we talk about counter insurgency. west moreland is pursuing attrition strategy. if you know military, you know the enemy will give up if we kill so many of him that he finally doesn't have any people left and 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. >> add a couple of 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 west moreland actually had more nuanced approach to war. it was not just body count but things like weapons and chew hoys and rice and 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. >> we will leave the american history tv programming here for a short time for live coverage of the british prime minister theresa may appearing before the british liaison committee, addressing foreign policy priorities and other issues. >> we hope to raise russia with you in the aftermath of -- salisbury incident, have a discussion on brexit and i am going to hand over straight away to the foreign affairs committee.

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 lieutenants. 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.

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 reacting 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.

said nothing about it. >> i don't feel like this was some isolated circumstance. it's happened many times before

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