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interviews Raymond Brown
Court TV anchor and trial attorney Ray Brown is an expert in war crimes, including the Bosnian and Rwandan inquests. He covered the Bosnian trials at the Hague for Court TV and has lectured on international criminal law. Having extensively studied the Calley trial, Brown maintains that one fatal flaw in getting to the heart of the My Lai massacre is that all of the eventual defendants, including Calley, were tried individually. The individual trials allowed prosecutors to avoid developing a comprehensive overview of the entire incident and protected the others involved with My Lai.

There would not have been any My Lai investigation and no trial of Lt. Calley but for the fact that a GI who had been discharged [Ron Ridenhour], wrote to General Westmoreland and to Congress and the press and talked about rumors that he heard involving a massacre. The fact that a GI completely outside of the command structure precipitating the investigation shows how thorough was the cover up in the Americal Division of what happened at My Lai, and it shows the extent to which, what American service men from the ground up did not understand that you must report war crimes when you see them.

It is fair to say that the Secretary of the Army, General Westmoreland and the others at the top were shocked by the allegations of Ridenhour and even more shocked when the investigation of Calley and Medina began to bear fruit and as Gen. Peers began his investigation that, in fact there had been a massacre of astounding proportions and a massive cover up.

The Peers Report is probably the most significant document to come out of the My Lai investigation and the events surrounding it. In November of 1969, General Westmoreland and the Assistant Secretary of the Army appointed General Peers to investigate the cover up that had taken place at My Lai. Peers was a man with vast experience in a number of areas including counter insurgency warfare, he was a veteran of World War 2, and probably most important, he served two tours commanding 1st division and then the field force in Vietnam.

The report took 14 weeks to produce, involved several trips to Vietnam, interviews with the scores of people involved, and the review of literally thousands of documents. The report had many conclusions, but perhaps the most important one was that the My Lai incident was the result of faulty commands issued by the command structure of Task Force Barker. There was a massive cover up that went from the company level all the way up to the command level of the Americal division. It also concluded that the majority of US soldiers were inadequately trained about the rules of war, the Hague convention and the Geneva Convention. It is also important to note that it recommended charges against a number of officers but all of those charge ultimately wound up getting dismissed.

Lt. Calley was initially charged in September of 1969, he was formally charged in November, between those two dates some very significant demonstrations took place. There were demonstrations throughout the country involving people across the political spectrum against the war. Eighty college presidents appealed to President Nixon to stop the war, the Pentagon itself, at the time that it was ratifying Calley’s charges, was faced with a demonstration of a quarter of a million people at the Pentagon. There were para-troopers on duty inside the Pentagon. So there was this attack, both political and in other ways on the military, on the Pentagon and on US policy.

It is difficult to second-guess the prosecutors who tried the Calley case, because they are not the ones who made the decision to try Calley alone -- that decision was made at a much higher level. It's hard to quarrel with a victory. The man was convicted of murders and he was convicted in such a way that made it quite clear for future purposes that a man is responsible to disobey illegal orders under the rules of war.

If I were appointed to defend Lt. Calley, first I would go home and have a good cry. I would take a look at whether I could raise the question as to why Calley was being tried alone. Perhaps, when put into context with all of the other variables like the bad intelligence that he got, he might have had some benefit in being tried jointly with others or at least with a broader array of issues.

If ever there was an unwinnable trial, it might have been the trial of Lt. Calley.

I think that most people that have not had to deal with the subject, do not think of war and rules as going together. In fact, man has been trying to organize rules of war almost since the beginning of organized warfare. The US has been notable at the UN, at the Geneva Convention to develop concepts, in an organized way that form the rules governing warfare. Looking at the rules of war, it is probably important to note the Nuremberg trial that took place after World War 2 as well as the trials of Japanese soldiers that established a number of principals international laws about wars and established basically that those rules have existed for all time and for all people. It is also important to note that we now have war crimes tribunals that have been set up for the former Yugoslavia and Rwanda which are addressing those same issues and it is possible that by the end of this century that there may be a permanent tribunal set up to try war crimes.

Perhaps the biggest difference between Lt. Calley’s trial and the Nuremberg trial was that Lt. Calley’s trial was very specifically focused on the conduct of a single individual and the persons under his command in his platoon, and was handled in such a way that the broader issues of how and to what extent he was badly led by his superiors and the extent to which there was a cover up afterwards were not addressed in the trial at all. Contrast that to the Nuremberg trials, where the high ranking and the highest ranking that could be captured were all on trial together, as well as many organizations that were accused of being criminal organizations. The entire history of the Nazis and the crimes perpetrated by that regime were fleshed out in the trial.

At Nuremberg, all of the defendants, who were all high ranking officers, were joined in one trial giving prosecutors the opportunity to lay out the entire history of the Third Reich as it related to war crimes and crimes against humanity. Because Calley was tried alone and without people going up the chain of command including General Koster who either engaged in cover up or precipitated this whole event, the whole story couldn't emerge. Calley’s trial was held in isolation and the entire story of what happened at My Lai and the subsequent cover up were never developed. It should be noted that the decision as to whether you have a joint trial or not involves discretion by those in the military in the command structure. The trials at the Hague involving Yugoslavia, the first trial involved a very lower echelon guy. But the prosecutors spent the first month putting things into evidence that had nothing to do with the individual, but had to do with the ethnic cleansing and the broader movements that led to the crimes of which he had been accused.

The rules of war, while they can be controversial, in the case of My Lai, are basic, fundamental rules that are really not controversial: 1) civilians or non-combatants should not be killed; 2) prisoners, once they are under control, should not be killed; 3) all personnel have an obligation to disobey an illegal order. If they say to go kill that prisoner, you have an obligation to ignore that order.

Let's apply the rules of war to Vietnam. It was a guerrilla war. The difference between military and civilian personnel, or between combatants and non-combatants was a line that was often blurred. A civilian one moment could be shooting at a GI the next. That complicates the question of never shooting civilians.

There is a way of looking at Calley’s sentence which makes it seem sensible. The three principles of a sentence are punishment, rehabilitation and deterrence. When you apply those three to Calley, how much time did he really have to do? There was no possibility that he would ever do anything like this again, so specific deterrence for him was not a problem. General deterrence was served, because the one thing that most critics agreed on was that since My Lai, the military has trained its personnel more effectively, disseminated information on war rules and war crimes more effectively, and there is strong anecdotal evidence that the commanders at Panama, Grenada and in the Gulf Wars have told their personnel that there will be no My Lai's on my watch. As for additional sentencing, one could argue that three years was adequate in this case. Perhaps the biggest thing that came out of this massacre and huge cover up, he was the only man who did any time at all.

By the time Lt. Calley was convicted, the Nixon administration was trying to conduct negotiations with the Vietnamese and was also expanding the war into Cambodia, and he did not want to give further grist to the mill of the demonstrators. So, to the extent that the President could soften the blow about what had happened to Calley, to not encourage speculation as to if it was more wide spread and to infer that we kind of know what happened, he served the purposes of not adding fuel to the purposes of the opposition and succeeded in doing so.

Politics and justice at My Lai are inseparable. The decisions about the My Lai investigation in general and about Lt. Calley in particular were made by the Army institution and by those in the White House who were facing intense political pressure from a large anti-war movement. I think that the evolution of this is a very important thing for us to understand. If we go back to August of 1964, the President and the Defense Department said that North Vietnamese boats had launched an unprovoked attack on the destroyer Maddox. That led the President to seek what became known as the Tonkin Bay resolution, which was used as the legal basis for the substantive expansion of the war.

If you look at President Johnson in March of 1968 when My Lai took place, we can see exactly what the political environment was at that time. Johnson sitting in his office on 16 March, 1968, was aware that just a couple of weeks earlier, Senator Eugene McCarthy got 40% of the vote in the New Hampshire primary on an antiwar platform. Robert Kennedy who was a threat to Johnson in the Democratic party, had broken ranks over the war in Vietnam and was preparing to run against him and seek the nomination. The Tet offensive, which occurred a few weeks earlier and was obviously on Johnson's mind, and we know that because two weeks after My Lai, even though he did not know anything about My Lai, he indicated that he would not run again for the presidency because the country was divided over Vietnam.

There has been much debate as to whether Lt. Calley was a scapegoat. Partly, there is a problem with definition here, if a scapegoat is an innocent person who suffers for the acts of others, then I think that there is a very weak case for that. No one believes that Lt. Calley was not guilty of the charges of which he was convicted. But if a scapegoat is a person who bears the sins of others, not withstanding if he himself is guilty, then I think you can make a good argument for that, because, in fact, there were at least 25 others who were indicted in connection with My Lai.

I think that the most significant issue of the Lt. Calley trial is the issue that it didn't address. That issue was that there was a massive cover up in an Army division in Vietnam of a massacre and that raises the inference that either this was an extraordinarily and coincidentally corrupt division or perhaps that covering up misdeeds was such a regular part of military operations that it came as almost second nature to an entire division command structure to cover up.

Looking at an event like My Lai some 30 years after it occurred can sometimes seem like a dry event. But we have to remember that the people killed were women, and children, and one Buddhist monk who begged Lt. Calley not to kill him before having a bullet fired through his head. These people were unarmed and unprotected and these events happened at least in part while a warrant officer stopped his helicopter and got out and begged men not to shoot the people who were huddled in a ditch, who were then raked with fire.

My view is that a great injustice was done in the context of My Lai and the subsequent judicial proceedings. It is always offensive when people of status, rank and power escape justice, escape their day in court when lower ranking people and officers are forced to go to trial. It is not that I believe Lt. Calley wasn't guilty, I believe that he was guilty and fairly convicted, but I do feel that in a certain sense, he was made to take the moral weight of those above him, and in fact may have been allowed by the Army to take the weight to take some of the heat off of the war with this great unpopularity.

the INCIDENT the TRIAL the AFTERMATH

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