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I am old enough to remember the Vietnam War.
And I remember vividly what became known as the My Lai Massacre, when, in a single morning in 1968, Lt. William Calley of the U.S. Army led about 100 soldiers into a small Vietnamese village and ordered them to kill everyone in it. There were no Viet Cong (enemy combatants) in the village—just women, children and elderly men.
On Calley’s orders, members of the platoon slaughtered somewhere between 350 and 500 civilians that day, including 173 children (of which 53 were infants). No resistance was offered by people in the village. Essentially, they were murdered in cold blood.
When word of this atrocity reached the American public more than a year later, they were enraged. Calley was charged with 109 counts of murder under the Uniform Code of Military Justice, or UCMJ, and convicted. No one else was convicted, including his superior officer, Capt. Ernest Medina, whom Calley claimed had ordered the killing. Medina denied having ordered Calley to harm civilians and was acquitted. However, many thought Calley was unfairly scapegoated for following an illegal order.
The U.S. military suffered severe reputational damage as a direct consequence of My Lai. A 2018 article on the Army Historical Foundation website describes multiple failures, including a failure on the part of the Army chain of command to fully investigate the events until the matter became public, and concludes that the Army’s leadership believed the American public no longer trusted the Army.
As a result, many changes occurred throughout the armed services. In the Army, rigorous ethical instruction was renewed. An “Army Ethic” was developed, emphasizing that soldiers must “reject and report illegal, unethical or immoral orders and actions.” West Point created a Center of Excellence responsible for inculcating in each soldier an understanding and acceptance of ethics and professionalism within the ranks.
The bottom line was that future My Lais were to be prevented at all costs.
The military, during the years since My Lai, has made it clear in the UCMJ that, while a member of the armed services may be punished for failure to obey a lawful order, the Rules for Courts-Martial make it clear that an order is lawful “unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.” Further, “[the inference of lawfulness] does not apply to a patently illegal order, such as one that directs the commission of a crime.”
Now we are confronted with a situation in which an illegal order may have been issued by a Department of Defense official on Sept. 2 when ordering a missile strike on a boat suspected
of ferrying narcotics in the Caribbean.
The Washington Post reported last month that Secretary of Defense Pete Hegseth gave a spoken order to kill the entire crew of the vessel with an initial missile strike. When two survivors were detected, Adm. Frank M. Bradley (a Hegseth subordinate) reportedly directed another strike to comply with Hegseth’s order that no one be left alive. The survivors perished. Lawmakers and law-of-war experts have questioned whether a war crime was committed.
Two committees of Congress have awakened from the general congressional torpor and plan to investigate this matter. It is critical to the public’s trust in the military that they do so, fully and fairly.•
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Daniels is a retired partner of Krieg DeVault LLP, a former U.S. Attorney and assistant U.S. attorney general and former president of the Sagamore Institute. Send comments to [email protected].
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