[p. 536]
First Lieutenant Calley stands convicted
of the premeditated murder of 22 infants, children, women, and old men,
and of assault with intent to murder a child of about 2 years of age. All
the killings and the assault took place on March 16, 1968 in the area of
the village of May Lai in the Republic of South Vietnam. The Army Court
of Military Review affirmed the findings of guilty and the sentence, which,
as reduced by the convening authority, includes dismissal and confinement
at hard labor for 20 years. The accused petitioned this Court for further
review, alleging 30 assignments of error. We granted three of these assignments.
* * *
[p. 538]
Lieutenant Calley was a platoon leader
in C Company, a unit that was part of an organization known as Task Force
Barker, whose mission was to subdue and drive out the enemy in an area
in the Republic of Vietnam known popularly as Pinkville. Before March 16,
1968, this area, which included the village of My Lai 4, was a Viet Cong
stronghold. C Company had operated in the area several times. Each time
the unit had entered the area it suffered casualties by sniper fire, machine
gun fire, mines, and other forms of attack. Lieutenant Calley had accompanied
his platoon on some of the incursions.
On March 15, 1968, a memorial service
for members of the company killed in the area during the preceding weeks
was held. After the service Captain Ernest L. Medina, the commanding officer
of C Company, briefed the company on a mission in the Pinkville area set
for the next day. C Company was to serve as the main attack formation for
Task Force Barker. In that role it would assault and neutralize May Lai
4, 5, and 6 and then mass for an assault on My Lai, 1. Intelligence reports
indicated that the unit would be opposed by a veteran enemy battalion,
and that all civilians would be absent from the area. The objective was
to destroy the enemy. Disagreement exists as to the instructions on the
specifics of destruction.
Captain Medina testified that he
instructed his tropps that they were to destroy My Lai 4 by "burning the
hootches, to kill the livestock, to close the wells and to destroy the
food crops." Asked if women and children were to be killed, Medina said
he replied in the negative, adding that, "You must use common sense. If
they have a weapon and are trying to engage you, then you can shoot back,
but you must use common sense." However, Lieutenant Calley testified that
Captain Medina informed the tropps they were to kill every living thing
-- men, women, children, and animals -- and under no circumstances were
they to leave any Vietnamese behind them as they passed through the villages
enroute to their final objective. Other witnesses gave more or less support
to both versions of the briefing.
On March 16, 1968, the operation
began with interdicting fire. C Company was then brought to the area by
helicopters. Lieutenant Calley's platoon was on the first lift. This platoon
formed a defense perimeter until the remainder of the force was landed.
The unit received no hostile fire from the village.
Calley's platoon passed the approaches
to the village with his men firing heavily. Entering the village, the platoon
encountered only unarmed, unresisting men, women, and children. The villagers,
including infants held in their mothers' arms, were assembled and moved
in separate groups to collection points. Calley [p. 539] testified that
during this time he was radioed twice by Captain Medina, who demanded to
know what was delaying the platoon. On being told that a large number of
villagers had been detained, Calley said Medina ordered him to "waste them."
Calley further testified that he obeyed the orders because he had been
taught the doctrine of obedience throughout his military career. Medina
denied that he gave any such order.
One of the collection points for
the villagers was in the southern part of the village. There, Private First
Class Paul D. Meadlo guarded a group of between 30 to 40 old men, women,
and children. Lieutenant Calley approached Meadlo and told him, "'You know
what to do,'" and left. He returned shortly and asked Meadlo why the people
were not yet dead. Meadlo replied he did not know that Calley had meant
that they should be killed. Calley declared that he wanted them dead. He
and Meadlo then opened fire on the group, until all but a few children
fell. Calley then personally shot these children. He expended 4 or 5 magazines
from his M-16 rifle in the incident.
Lieutenant Calley and Meadlo moved
from this point to an irrigation ditch on the east side of My Lai 4. There,
they encountered another group of civilians being held by several soldiers.
Meadlo estimated that this group contained from 75 to 100 persons. Calley
stated, "'We got another job to do, Meadlo,'" and he ordered the group
into the ditch. When all were in the ditch, Calley and Meadlo opened fire
on them. Although ordered by Calley to shoot, Private First Class James
J. Dursi refused to join in the killings, and Specialist Four Robert E.
Maples refused to give his machine gun to Calley for use in the killings.
Lieutenant Calley admitted that he fired into the ditch, with the muzzle
of his weapon within 5 feet of people in it. He expended between 10 to
15 magazines of ammunition on this occasion.
With his radio operator, Private
Charles Sledge, Calley moved to the north end of the ditch. There, he found
an elderly Vietnamese monk, whom he interrogated. Calley struck the man
with his rifle butt and then shot him in the head. Other testimony indicates
that immediately afterwards a young child was observed running toward the
village. Calley seized him by the arm, threw him into the ditch, and fired
at him. Calley admitted interrogating and striking the monk, but denied
shooting him. He also denied the incident involving the child.
Appellate defense counsel contend
that the evidence is insufficient to establish the accused's guilt. They
do not dispute Calley's participation in the homicides, but they argue
that he did not act with the malice or mens rea essential to a conviction
of murder; that the orders he received to kill everyone in the village
were not palpably illegal; that he was acting in ignorance of the laws
of war; that since he was told that only "the enemy" would be in the village,
his honest belief that there were no innocent civilians in the village
exonerates him of criminal responsibility for their deaths; and, finally,
that his actions were in the heat of passion caused by reasonable provocation.
In assessing the sufficiency of the
evidence to support findings of guilty, we cannot reevaluate the credibility
of the witnesses or resolve conflicts in their testimony and thus decide
anew whether the accused's guilt was established beyond a reasonable doubt.
Our function is more limited; it is to determine whether the record contains
enough evidence for the triers of the facts to find beyond a reasonable
doubt each element of the offenses involved. United States v Papenheim,
19 USCMA 203, 41 CMR 203 (1970); United States v Wilson, 13 USCMA 670,
33 CMR 202 (1963).
The testimony of Meadlo and others
provided the court members with ample evidence from which to find that
Lieutenant Calley directed and personally participated in the intentional
killing of men, women, and children, who were unarmed and in the custody
of armed soldiers of C Company. If the prosecution's witnesses are
believed, there is also ample evidence to support a finding that the accused
deliberately shot the Vietnamese monk whom he interrogated, and that he
seized, threw into a ditch, and fired on a child with the intent to kill.
[p. 540] Enemy prisoners are
not subject to summary execution by their captors. Military law has long
held that the killing of an unresisting prisoner is murder. Winthrop's
Military Law and Precedents, 2d ed., 1920 Reprint, at 788-91.
While it is lawful to kill an enemy
"in the heat and exercise of war," yet "to kill such an enemy after he
has laid down his arms . . . is murder."
Conceding for the purposes of this
assignment of error that Calley believed the villagers were part of "the
enemy," the uncontradicted evidence is that they were under the control
of armed soldiers and were offering no resistance. In his testimony, Calley
admitted he was aware of the requirement that prisoners be treated with
respect. He also admitted he knew that the normal practice was to interrogate
villagers, release those who could satisfactorily account for themselves,
and evacuate the suspect among them for further examination. Instead of
proceeding in the usual way, Calley executed all, without regard to age,
condition, or possibility of suspicion. On the evidence, the court-martial
could reasonably find Calley guilty of the offenses before us.
At trial, Calley's principal defense
was that he acted in execution of Captain Medina's order to kill everyone
in My Lai 4. Appellate defense counsel urge this defense as the most important
factor in assessment of the legal sufficiency of the evidence. The argument,
however, is inapplicable to whether the evidence is legally sufficient.
Captain Medina denied that he issued any such order, either during the
previous day's briefing or on the date the killings were carried out. Resolution
of the conflict between his testimony and that of the accused was for the
triers of the facts. United States v Guerra, 13 USCMA 463, 32 CMR 463 (1963).
The general findings of guilty, with exceptions as to the number of persons
killed, does not indicate whether the court members found that Captain
Medina did not issue the alleged order to kill, or whether, if he did,
the court members believed that the accused knew the order was illegal.
For the purpose of the legal sufficiency of the evidence, the record supports
the findings of guilty.
In the third assignment of error,
appellate defense counsel assert gross deficiencies in the military judge's
instructions to the court members. Only two assertions merit discussion.
One contention is that the judge should have, but did not, advise the court
members of the necessity to find the existence of "malice aforethought"
in connection with the murder charges; the second allegation is that the
defense of compliance with superior orders was not properly submitted to
the court members.
The existence vel non of malice,
say appellate defense counsel, is the factor that distinguishes murder
from manslaughter. See United States v Judd, 10 USCMA 113, 27 CMR 187 (1959).
They argue that malice is an indispensable element of murder and must be
the subject of a specific instruction. In support, they rely upon language
in our opinion in United States v Roman, 1 USCMA 244, 2 CMR 150 (1952).
Roman involved a conviction
of murder under Article of War 92, which provided for punishment of any
person subject to military law "found guilty of murder." As murder was
not further defined in the Article, it was necessary to refer to the common
law element of malice in the instructions to the court members in order
to distinguish murder from manslaughter. United States v Roman, supra;
cf. United States v Judd, supra. In enactment of the Uniform Code
of Military Justice, Congress eliminated malice as an element of murder
by codifying the common circumstances under which that state of mind was
deemed to be present. Hearings on HR 2498 Before a Subcommittee of the
House Armed Services Committee, 81st Cong., 1st Sess. 1246-1248 (1949);
HR Rep No 491, 81st Cong, 1st Sess 3 (1949). One of the stated purposes
of the Code was the "listing and definition of offenses, redrafted and
rephrased in modern legislative language." S Rep No 486, 81st Cong, 1st
Sess 2 (1949). That purpose was accomplished by defining murder as the
unlawful killing of a human [p. 541] being, without justification or excuse.
Article 118, Uniform Code of Military Justice, 10 USC § 918. Article
118 also provides that murder is committed if the person, intending to
kill or inflict grievous bodily harm, was engaged in an inherently dangerous
act, or was engaged in the perpetration or attempted perpetration of certain
felonies. In each of these instances before enactment of the Uniform Code,
malice was deemed to exist and the homicide was murder.The Code language
made it unnecessary that the court members be instructed in the earlier
terminology of "malice aforethought." Now, the conditions and states of
mind that must be the subject of instructions have been declared by Congress;
they do not require reference to malice itself. Cf. United States
v Craig, 2 USCMA 650, 10 CMR 148 (1953).
The trial judge delineated the elements
of premeditated murder for the court members in accordance with the statutory
language. He instructed them that to convict Lieutenant Calley, they must
be convinced beyond a reasonable doubt that the victims were dead; that
their respective deaths resulted from specified acts of the accused; that
the killings were unlawful; and that Calley acted with a premediated design
to kill. The judge defined accurately the meaning of an unlawful killing
and the meaning of a "premediated design to kill." These instructions comported
fully with requirements of existing law for the offense of premeditated
murder, and neither statute nor judicial precedent requires that reference
also be made to the pre-Code concept of malice.
We turn to the contention that the
judge erred in his submission of the defense of superior orders to the
court. After fairly summarizing the evidence, the judge gave the following
instructions pertinent to the issue:
The killing of resisting or fleeing
enemy forces is generally recognized as a justifiable act of war, and you
may consider any such killings justifiable in this case. The law attempts
to project whose persons not actually engaged in warefare, however; and
limits the circumstances under which their lives may be taken.
Both combatants captured by and noncombatants
detained by the opposing force, regardless of their loyalties, political
views, or prior acts, have the right to be treated as prisoners until released,
confined, or executed, in accordance with law and established procedures,
by competent authority sitting in judgment of such detained or captured
individuals. Summary execution of detainees or prisoners is forbidden by
law. Further, it's clear under the evidence presented in this case, that
hostile acts or support of the enemy North Vietnamese or Viet Cong
forces by inhabitants of My Lai (4) at some time prior to 16 March 1968,
would not justify the summary execution of all or a part of the occupants
of My Lai (4) on 16 March, nor would hostile acts committed that day, if,
following the hostility, the beligerents surrendered or were captured by
our forces. I therefore instruct you, as a matter of law, that if unresisting
human beings were killed to My Lai (4) while within the effective custody
and control of our military forces, their deaths cannot be considered justified,
and any order to kill such people would be, as a matter of law, an illegal
order. Thus, if you find that Lieutenant Calley received an order directing
him to kill unresisting Vietnamese within his control or within the control
of his troops, that order would be an illegal order.
The acts of a subordinate done in
compliance with an unlawful order given him by his superior are excused
and impose no criminal liability upon him unless the superior's order is
one which a man of ordinary sense and understanding would, under
the circumstances, know to be unlawful, or if the order in question is
actually known to the accused to be unlawful.
. . . In determining what orders,
if any, Lieutenant Calley acted under, if you find him to have acted, you
should consider all of the matters which he has testified reached him and
which you can infer from other evidence that he saw and heard. Then, unless
you find beyond a reasonable doubt that he was not acting under orders
directing him in substance and effect to kill unresisting occupants of
My Lai (4), you must determine whether Lieutenant Calley actually knew
those orders to be unlawful.
. . . In determining whether or not
Lieutenant Calley had knowledge of the unlawfulness of any order found
by you to have been given, you may consider all relevant facts and circumstances,
including Lieutenant Calley's rank; educational background; OCS schooling;
other training while in the Army, including basic training, and his training
in Hawaii and Vietnam; his experience on prior operations involving contact
with hostile and friendly Vietnamese; his age; and any other evidence tending
to prove or disprove that on 16 March 1968, Lieutenant Calley knew the
order was unlawful. If you find beyond a reasonable doubt, on the basis
of all the evidence, that Lieutenant Calley actually knew the order
under which he asserts he operated was unlawful, the fact that the order
was given operates as no defense.
Unless you find beyond reasonable
doubt that the accused acted with actual knowledge that the order was unlawful,
you must proceed to determine whether, under the circumstances, a man
of ordinary sense and understanding would have known the order was unlawful.
You deliberations on this question do not focus on Lieutenant Calley and
the manner in which he perceived the legality of the order found to
have been given him. The standard is that of a man of ordinary sense and
understanding under the circumstances.
Think back to the events of 15 and
16 March 1968. . . . Then determine, in light of all the surrounding circumstances,
whether the order, which to reach this point you will have found him to
be operating in accordance with, is one which a man of ordinary sense and
understanding would know to be unlawful. Apply this to each charged act
which you have found Lieutenant Calley to have committed. Unless you are
satisfied from the evidence, beyond a reasonable doubt, that a man of ordinary
sense and understanding would have known the order to be unlawful, you
must acquit Lieutenant Calley for committing acts done in accordance with
the order. (Emphasis added.)
Appellate defense counsel contend
that these instructions are prejudicially erroneous in that they require
the court members to determine that Lieutenant Calley knew that an order
to kill human beings in the circumstances under which he killed was illegal
by the standard of whether "a man of ordinary sense and understanding"
would know the order was illegal. They urge us to adopt as the governing
test whether the order is so palpably or manifestly illegal that a person
of "the commonest understanding" would be aware of its illegality. They
maintain the standard stated by the judge is too strict and unjust; that
it confronts members of the armed forces who are not persons of ordinary
sense and understanding with the dilemma of choosing between the penalty
of death for disobedience of an order in time of war on the one hand and
the equally serious punishment for obedience on the other. Some thoughtful
commentators on [p. 543] military law have presented much the same argument.
[n. 1]
"[I]n its substance being clearly
illegal, so that a man of ordinary sense and understanding would know as
soon as he heard the order read or given that such order was illegal, would
afford a private no protection for a crime committed under such order."
Other courts have used other language
to define the substance of the defense. Typical is McCall v McDowell, 15
F Cas 1235, 1240 (CCD Cal 1867), in which the court said:
But I am not satisfied that Douglas
ought to be held liable to the plaintiff at all. He acted not as a volunteer,
but as a subordinate in obedience to the order of his superior. Except
in a plain case of excess of authority, where at first blush it is apparent
and palpable to the commonest understanding that the order is illegal,
I cannot but think that the law should excuse the military subordinate
when acting in obedience to the orders of his commander. Otherwise he is
placed in the dangerous dilemma of being liable in damages to third persons
for obedience to an order, or to the loss of his commission and disgrace
for disobedience thereto. . . . The first duty of a solider is obedience,
and without this there can be neither discipline nor efficiency in an army.
If every subordinate officer and solider were at liberty to question the
legality of the orders of the commander, and obey them or not as they may
consider them valid or invalid, the camp would be turned into a debating
school, where the precious moment for action would be wasted in wordy conflicts
between the advocates of conflicting opinions.
Colonel William Winthrop, the leading
American commentator on military law, notes:
But for the inferior to assume to
determine the question of the lawfulness of an order given him by a superior
would of itself, as a general rule, amount to insubordination, and such
an assumption carried into practice would subvert military discipline.
Where the order is apparently regular and lawful on its face, he
is not to go behind it to satisfy himself that his superior has proceeded
with authority, but is to obey it according to its terms, the only exceptions
recognized to the rule of obedience being cases of orders so manifestly
beyond the legal power or discretion of the commander as to admit of no
rational doubt of their unlawfulness . . . .
Except in such instances of palpable
illegality, which must be of rare occurrence, the inferior should presume
that the order was lawful and authorized and obey it accordingly, and in
obeying it can scarcely fail to be held justified by a military court.
In the stress of combat, a member
of [p. 544] the armed forces cannot reasonably be expected to make a refined
legal judgment and be held criminally responsible if he guesses wrong on
a question as to which there may be considerable disagreement. But there
is no disagreement as to the illegality of the order to kill in this case.
For 100 years, it has been a settled rule of American law that even in
war the summary killing of an enemy, who has submitted to, and is under,
effective physical control, is murder. Appellate defense counsel acknowledge
that rule of law and its continued viability, but they say that Lieutenant
Calley should not be held accountable for the men, women and children he
killed because the court-martial could have found that he was a person
of "commonest understanding" and such a person might not know what our
law provides; that his captain had ordered him to kill these unarmed and
submissive people and he only carried out that order as a good disciplined
soldier should.
Whether Lieutenant Calley was the
most ignorant person in the United States Army in Vietnam, or the most
intelligent, he must be presumed to know that he could not kill the people
involved here. The United States Supreme Court has pointed out that "[t]he
rule that 'ignorance of the law will not excuse' [a positive act that constitutes
a crime] . . . is deep in our law." Lambert v California, 355 US 225, 228
(1957). An order to kill infants and unarmed civilians who were so demonstrably
incapable of resistance to the armed might of a military force as were
those killed by Lieutenant Calley is, in my opinion, so palpably illegal
that whatever conceptional difference there may be between a person of
"commonest understanding" and a person of "common understanding," that
difference could not have had any "impact on a court of lay members receiving
the respective wordings in instructions," as appellate defense counsel
contend. In my judgment, there is no possibility of prejudice to Lieutenant
Calley in the trial judge's reliance upon the established standard of excuse
of criminal conduct, rather than the standard of "commonest understanding"
presented by the defense, or by the new variable test postulated in the
dissent, which, with the inclusion of such factors for consideration as
grade and experience, would appear to exact a higher standard of understanding
from Lieutenant Calley than that of the person of ordinary understanding.
In summary, as reflected in the record,
the judge was capable and fair, and dedicated to assuring the accused a
trial on the merits as provided by law; his instructions on all issues
were comprehensive and correct. Lieutenant Calley was given every consideration
to which he was entitled, and perhaps more. We are impressed with the absence
of bias or prejudice on the part of the court members. They were instructed
to determine the truth according to the law and his they did with
due deliberation and full consideration of the evidence. Their findings
of guilty represent the truth of the facts as they determined them to be
and there is substantial evidence to support those findings. No mistakes
of procedure cast doubt upon them.
Consequently, the decision of the
Court of Military Review is affirmed.
DUNCAN, Judge (concurring in the
result):
My difference of opinion from Judge
Quinn's view of the defense of obedience to orders is narrow. The issue
of obedience to orders was raised in defense by the evidence. Contrary
to Judge Quinn, I do not consider that a presumption arose that the appellant
knew he could not kill the people involved. The Government, as I see it,
is not entitled to a presumption of what the appellant knew of the illegality
of an order. It is a matter for the factfinders under proper instructions.
Paragraph 216, Manual for Courts-Martial,
United States, 1969 (Rev), provides for special defenses: excuse because
of accident or misadventure; self-defense; entrapment; coercion or duress;
physical or financial inability; and obedience to apparently lawful orders.
Subparagraph d of paragraph 216 is as follows:
An order requiring the performance
of a military duty may be inferred to be legal. An act performed manifestly
beyond the scope of authority, or pursuant to an order that a man of ordinary
[p. 545] sense and understanding would know to be illegal, or in a wanton
manner in the discharge of a lawful duty, is not excusable.
The military judge clearly instructed
the members pursuant to this provision of the Manual. The heart of the
issue is whether, under the circumstances of this case, he should have
abandoned the Manual standard and fashioned another. The defense urges
a purely subjective standard; the dissent herein yet another. I suggest
that there are important general as well as certain specific considerations
which convince me that the standard should not be abandoned. The process
of promulgating Manual provisions is geared to produce requirements for
the system only after most serious reflection by knowledgeable and concerned
personnel. [n. 2] These persons have full regard for the needs of the armed
forces and genuine concern for the plight of one accused. Those who prepared
the Manual provision and the President of the United States, the Commander-in-Chief,
who approved and made the provision a part of our law, [n. 3] were aware
that disobedience to orders is the anathema to an efficient military force.
Judge Quinn points out that this Court has established as precedent the
applicability of the special defense upon proof adduced pursuant to the
Manual standard. These are important general reasons for not aborting a
standard that has been long in existence and often used.
3. See Article 36, UCMJ, 10 USC §
836; United States v Smith, 13 USCMA 105, 32 CMR 105 (1962). It appears to me that all tests which
measure an accused's conduct by an objective standard -- whether it is
the test of "palpable illegality to the commonest understanding" or whether
the test establishes a set of profile considerations by which to measure
the accused's ability to assess the legality of the order -- are less than
perfect, and they have a certain potential for injustice to the member
having the slowest wit and quickest obedience. Obviously the higher the
standard, the likelihood is that fewer persons will be able to measure
up to it. Knowledge of the fact that there are other standards that are
arguably more fair does not convince me that the standard used herein is
unfair, on its face, or is applied to Lieutenant Calley.
Perhaps a new standard, such as the
dissent suggests, has merit; however, I would leave that for the legislative
authority or for the cause where the record demonstrates harm from the
instructions given. I perceive none in this case. The general verdict in
this case implies that the jury believed a man of ordinary sense and understanding
would have known the order in question to be illegal. [n. 4] Even conceding
arguendo that this issue should have been resolved under instructions requring
a finding that almost every member of the armed forces would have immediately
recognized that the order was unlawful, as well as a finding that as a
consequence of his age, grade, intelligence, experience, and training,
Lieutenant Calley should have recognized the order's illegality, I do not
believe the result in this case would have been different.
Both the principal opinion and the
analysis of the Court of Military Review state that in the enactment of
the Uniform Code of Military Justice Congress has, in effect, codified
the requirement of malice aforethought by defining murder as the unlawful
killing of a human being, without justification or excuse. Article 118
UCMJ, 10 USC § 918. It should also be noted that in the case at bar
the members of the panel were charged that a finding that the homicides
were without justification or excuse was necessary to convict for premeditated
murder. Furthermore, I cannot say that the evidence lacks sufficiency to
convict in respect to any of the charges.
DARDEN, Chief Judge (dissenting):
Although the charge the military
judge gave on the defense of superior orders was not inconsistent with
the Manual treatment of this subject, I believe the Manual provision is
too strict in a combat environment. [n. 5] Among other things, this standard
permits serious punishment of persons whose training and attitude incline
them either to be enthusiastic about compliance with orders or not to challenge
the authority of their superiors. The standard also permits conviction
of members who are not persons of ordinary sense and understanding.
While this test is phrased in language
that now seems "somewhat archaic and ungrammatical," [n. 6] the test recognizes
that the essential ingredient of discipline in any armed force is obedience
to orders and that this obedience is so important it should not be penalized
unless the order would be recognized as illegal, not by what some hypothetical
reasonable soldier would have known, but also by "those persons at the
lowest end of the scale of intelligence and experience in the services."
[n. 7] This is the real purpose in permitting superior orders to be a defense,
and it ought not to be restricted by the concept of a fictional reasonable
man so that, regardless of his personal characteristics, an accused judged
after the fact may find himself punished for either obedience or disobedience,
depending on whether the evidence will support the finding of simple negligence
on his part.
n7 Id. The preservation of human life is,
of course, or surpassing importance. To accomplish such preservation, members
of the armed forces must be held to standards of conduct that will permit
punishment of atrocities and enable this nation to follow civilized concepts
of warfare. In defending the current standard, the Army Court of Military
Review expressed the view that:
I do not disagree with these comments.
But while humanitarian considerations compel us to consider the impact
of actions by members of our armed forces on citizens of other nations,
I am also convinced that the phrasing of the defense of superior orders
should have as its principal objective fairness to the unsophisticated
soldier and those of somewhat limited intellect who nonetheless are doing
their best to perform their duty.
The test of palpable illegality to
the commonest understanding properly balances punishment for the obedience
of an obviously illegal order against protection to an accused for following
his elementary duty of obeying his superiors. Such a test reinforces the
need for obedience as an essential element of military discipline by broadly
protecting the soldier who has been effectively trained to look to his
superiors for direction. It also promotes fairness by permitting the military
jury to consider the particular accused's intelligence, grade, training,
and other elements directly related to the issue of whether he should have
known an order was illegal. Finally, that test imputes such knowledge to
an accused not as a result of simple negligence but on the much stronger
circumstantial concept that almost anyone in the armed forces would have
immediately recognized that the order was palpably illegal.
I would adopt this standard as the
correct instruction for the jury when the defense of superior orders is
in issue. Because the original case language is archaic and somewhat ungrammatical,
I would rephrase it to require that the military jury be instructed that,
despite his asserted defense of superior orders, an accused may be held
criminally accountable for his acts, allegedly committed pursuant to such
orders, if the court members are convinced beyond a reasonable doubt (1)
that almost every member of the armed forces would have immediately recognized
that the order was unlawful, and (2) that the accused should have recognized
the order's illegality as a consequence of his age, grade, intelligence,
experience, and training.
The temptation is to say that even
under this new formulation Lieutenant Calley would have been found guilty.
No matter how such a position is phrased, essentially it means that the
appellate judge rather than the military jury is functioning as a fact
finder. My reaction to this has been expressed by the former chief justice
of the California Supreme Court in these words:
The same authority also expressed
this thought:
In the instant case, Lietuenant Calley's
testimony placed the defense of superior orders in issue, even though he
conceded that he knew prisoners were normally to be treated with respect
and that the unit's normal practice was to interrogate Vietnamese villagers,
release those who could account for themselves, and evacuate those suspected
of being a part of the enemy forces. Although crucial parts of his testimony
were sharply contested, according to Lieutenant Calley, (1) he had received
a briefing before the assault in which he was instructed that every living
thing in the village was to be killed, including women and children; (2)
he was informed that speed was important in securing the village and moving
forward; (3) he was ordered that under no circumstances were any Vietnamese
to be allowed to stay behind the lines of his forces; (4) the residents
of the village who were taken into custody were hindering the progress
of his platoon in taking up the position it was to occupy; and (5) when
he informed Captain Medina of this hindrance, he was ordered to kill the
villagers and to move his platoon to a proper position.
In addition to the briefing, Lieutenant
Calley's experience in the Pinkville area caused him to know that, in the
past, when villagers had been left behind his unit, the unit had immediately
received sniper fire from the rear as it pressed forward. Faulty intelligence
apparently led him also to believe that those persons in the village were
not innocent civilians but were either enemies or enemy sympathizers. For
a participant in the My Lai operation, the circumstances that could have
obtained there may have caused the illegality of alleged orders to kill
civilians to be much less clear than they are in a hindsight review. n8
n8 A New York Times Book Reviewer
has noted, "One cannot locate the exact moment in his [Calley's] narrative
when one can be absolutely certain that one would have acted differently
given the same circumstances." See Paris ed., New York Herald Tribune,
September 13, 1971.
Since the defense of superior orders
was not submitted to the military jury under what I consider to be the
proper standard, I would grant Lieutenant Calley a rehearing.
I concur in Judge Quinn's opinion
on the other granted issues.
QUINN, Judge:
In his second assignment of error
the accused contends that the evidence is insufficient to establish his
guilt beyond a reasonable doubt. Summarized, the pertinent evidence is
as follows:
Digest of Opinions of the Judge
Advocates General of the Army, 1912, at 1074-75 n. 3.
A determination that an order is
illegal does not, of itself, assign criminal responsibility to the person
following the order for acts done in compliance with it. Soldiers are taught
to follow orders, and special attention is given to obedience of orders
on the battlefield. Military effectiveness depends upon obedience to orders.
On the other hand, the obedience of a soldier is not the obedience of an
automaton. A soldier is a reasoning agent, obliged to respond, not as a
machine, but as a person. The law takes these factors into account in assessing
criminal responsibility [p. 542] for acts done in compliance with illegal
orders.
1. In the words of one author: "If
the standard of reasonableness continues to be applied, we run the unacceptable
risk of applying serious punishment to one whose only crime is the slowness
of his wit or his stupidity. The soldier, who honestly believes that he
must obey an order to kill and is punished for it, is convicted not of
murder but of simple negligence." Finkelstein, Duty to Obey as a Defense,
March 9, 1970 (unpublished essay, Army War College).See also L. Norene,
Obedience to Orders as a Defense to a Criminal Act, March 1971 (unpublished
thesis presented to The Judge Advocate General's School, U.S. Army).
The "ordinary sense and understanding"
standard is set forth in the present Manual for Courts-Martial, United
States, 1969 (Rev) and was the standard accepted by this Court in United
States v Schultz, 18 USCMA 133, 39 CMR 133 (1969) and United States v Keenan,
18 USCMA 108, 39 CMR 108 (1969). It appeared as early as 1917. Manual for
Courts-Martial, U.S. Army, 1917, paragraph 442. Apparently, it originated
in a quotation from F. Wharton, Homicide § 485 (3d ed. 1907). Wharton's
authority is Riggs v State, 3 Coldwell 85, 91 American Decisions 272, 273
(Tenn 1866), in which the court approved a charge to the jury as follows:
Winthrop's Military Law and Precedents,
2d ed., 1920 Reprint, at 296-297 (footnotes omitted) (emphasis added).
2. The draft of the Manual for Courts-Martial,
United States, 1951, its predecessor, was prepared through the cooperation
of the Judge Advocates General of the Army, Navy, Air Force, and the General
Counsel, Office of the Secretary of Defense. The draft was then approved
by the Secretary of Defense. The draft was further reviewed by the Office
of the Attorney General and the Director of the Archives. After study by
the Executive Office of the President, it was promulgated as Executive
Order 10214 on February 8, 1951. See Legal and Legislative Basis, MCM,
1951.
It is urged that in using the Manual
test of "a man of ordinary sense and understanding" those persons at the
lowest end of the scale of intelligence and experience in the services
may suffer conviction while those more intelligent and experienced would
possess faculties which would cause them to abjure the order with impunity.
Such an argument has some attraction but in my view falls short of that
which should impel a court to replace that which is provided to us as law.
4. This assumes that the jury found
that the order the appellant contends he obeyed was given.
[p. 546] I believe the trial judge to
have been correct in his denial of the motion to dismiss the charges for
the reason that pretrial publicity made it impossible for the Government
to accord the accused a fair trial.
5. I agree with the majority opinion
that the military judge was eminently fair and I do not blame him for this
error.
The principal opinion has accurately
tracted the history of the current standard. Since this Manual provision
is one of substantive law rather than one relating to procedure or modes
of proof, the Manual rule is not binding on this Court, which has the responsibility
for determining the principles that govern justification in the law of
homicide. United States v Smith, 13 USCMA 105, 32 CMR 105 (1962). My impression
is that the weight of authority, including the commentators whose articles
are mentioned in the principal opinion, supports a more liberal approach
to the defense of superior orders. Under this approach, superior orders
should constitute a defense except "in a plain case of excess of authority,
where at first blush it is apparent and plapable to the commonest understanding
that the order is illegal." McCall v McDowell, 15 F Cas 1235, 1240 (No.
8,673) (CCD Cal 1867); In re Fair, 100 F 149, 155 (CCD Neb 1900);
Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, at 296-97.
n6 L. Norene, Obedience to Orders
as a Defense to a Criminal Act, March 1971 (unpublished thesis presented
to The Judge Advocate General's School, U.S. Army).
It is true that the standard of a "reasonable
man" is used in other areas of military criminal law, e.g., in connection
with the provocation necessary to reduce murder to voluntary manslaughter;
what constitutes an honest and reasonable mistake; and, indirectly, in
connection with involuntary manslaughter. But in none of these instances
do we have the countervailing consideration of avoiding the subversion
of obedience to discipline in combat by encouraging a member to [p. 547]
weigh the legality of an order or whether the superior had the authority
to issue it. See Martin v Mott, 25 US 19, 30 (1827).
Heed must be given not only to the
subjective innocence-through-ignorance in the soldier, but to the consequences
for his victims. Also, barbarism tends to invite reprisal to the detriment
of our own force or disrepute which interferes with the achievement of
war aims, even though the barbaric acts were preceded by orders for their
commission. Casting the defense of obedience to orders solely in subjective
terms of mens rea would operate practically to obrogate those objective
restraints which are essential to functioning rules of war.
United States v Calley, 46 CMR 1131,
1184 (ACMR 1973).
If an erroneous instruction or an
erroneous failure to give an instruction relates to a substantial element
of the appellant's case, an appellate court would not find it highly probable
that the error did not influence the verdict.
R. Traynor, The Riddle of Harmless
Error 74 (1970).
The concept of fairness extends
to reconsideration of the merits when a judgment has been or might have
been influenced by error. In that event [p. 548] there should be a retrial
in the trial court, time consuming or costly though it may be. The short-cut
alternative of reconsidering the merits in the appellate court, because
it is familiar with the evidence and aware of the error, has the appeal
of saving time and money. Unfortunately it does not measure up to accepted
standards of fairness.
Id. at 20.