Have We Learned Anything From My Lai?

My Lai. The images of women and children clinging together in their last living moments on that March day, a half century ago, still sear our collective memory. While we harbor no doubts that My Lai was a crime, there has been no accountability for the atrocity, or a national reckoning for the wider holocaust that was Vietnam.

"The commemoration of the 50th anniversary of My Lai this month offers an opportunity to take stock of the wider implications of that disastrous March day and American culpability for the gravest of crimes."

On March 16, 1968, 504 women, children and old men were shot at point-blank range by American soldiers over the course of a few hours in Son My village--407 were killed in the "My Lai 4" hamlet and another 97 were slaughtered in the hamlet known on U.S. military maps as "My Khe 4," about a mile from My Lai. The soldiers' mission: to "search and destroy."

It would take another 20 months for news of the atrocity and subsequent cover-up to reach the public, after exposure by journalist Seymour Hersh.

Calls for war crimes trials for My Lai and for the broader war exploded in the public arena. One such call came from New York Times reporter Neil Sheehan, remembered recently in Steven Spielberg's "The Post" for his role in the release of the Pentagon Papers, which resulted in a landmark Supreme Court decision on prior restraint of the press after President Nixon tried to enjoin publication.

While his work would garner two Pulitzers, Sheehan's exploration of war crimes culpability in a 1971 piece titled "Should We Have War Crimes Trials?" and his review of 25 pieces of then-current literature has been largely forgotten. The content of those works remains explosive and timely. There is, after all, no statute of limitations on war crimes.

Sheehan opened with his own journey, from a journalist who dismissed the charges of young demonstrators who queried "Hey, hey, LBJ, how many kids did you kill today?" as "just too much" to one who had to conclude that "if you credit as factual only a fraction of the information assembled here about what happened in Vietnam, and if you apply the laws of war to American conduct there, then the leaders of the United States for the past six years at least ... may well be guilty of war crimes. There is the stuff of five Dreyfus affairs in that thought." Then, he proceeded to cover the substance of the charges.

A wealth of newer books on the subject have been written since, but those written as events were unfolding catch the moment in history as nothing else can. So let's take a look at a few of the works offered in 1971 to consider the broad and devastating implications of that horrific March day.

The War for Quang Ngai, Jonathan Schell and Richard Falk

Context is everything.

Jonathan Schell's reporting for "The Military Half" occurred just months before My Lai. Schell spent a month in Quang Ngai, the province where My Lai is located and that is known for its resistance against both the French and the Americans. He flew daily missions with pilots in forward air control planes designed to guide bombers to their strike targets and in what he described as "bubble" helicopters that could fly within the landscape at altitudes as low as six or eight feet. He used that unique vantage point to methodically survey the land beneath him, shading destroyed areas on military maps and corroborating his findings with ground commanders.

He saw airstrikes in real time and observed from the air as troops burned villages to the ground in zippo raids. The settled portions of Quang Ngai were not in danger of future destruction, he said, but had in fact already been nearly totally destroyed. Seventy percent of the homes in the province were completely decimated by late 1967, along with the normal fabric of Vietnamese life. Quang Ngai was being emptied, its inhabitants resettled in refugee camps as part of what was termed "the civilian half," or "pacification," as it was euphemistically called. The American command thought it had to empty the sea (the population base) to deny sustenance to the fish (the Viet Cong). Once emptied, the villages became "free-fire" zones, where U.S. forces were instructed to shoot "anything that moved."

But the resettlement camps proved unable to absorb the influx of refugees. Part-way through his Quang Ngai reporting stint, Schell observed that commanders were told to stop generating refugees, even as they continued destruction of the villages. Schell recounted one air operation--Operation Benton--where out of a population of approximately 17,000 people, only 115 were evacuated. The airstrikes went forward, omitting the evacuation step mandated in prior raids. Benton, like the other air operations Schell witnessed, was carried out in the absence of ground combat.

Finally, at the end of "The Military Half," Schell revealed that (based on a report from a Quang Ngai-based civilian physician) an estimated 50,000 people had been killed in Quang Ngai each year since American troops first arrived. This is the terrible context of My Lai.

Destruction of the civilian population from the air was routine, with non-combatants the intended targets of an unprecedented array of weaponry. Sheehan cited the air war as perhaps the gravest war crime of all, deeming it a "distinct weapon of terror [used] to empty the countryside." My Lai can be differentiated from other crimes only in that it involved the face-to-face massacre of hundreds of civilians over the course of a few hours.

As international law expert Richard Falk testified before Congress in 1970 and as recorded in "War Crimes and the American Conscience" (another title in the bibliography), Vietnam was characterized by "battlefield policies that openly deny the significance of any distinction between civilians and combatants, between military and non-military targets. The most spectacular of these practices are the B-52 pattern raids against undefended villages and populated areas, free-fire zones, harassment and interdiction fire, Operation Phoenix, search and destroy missions, massive crop destruction and defoliation, and forcible transfer of the civilian population."

Indeed, he said, "the wrongdoers at My Lai, whether or not they were carrying out specific command decisions, were fulfilling the basic and persistent United States war policies in South Vietnam."

"Nuremberg and Vietnam," Telford Taylor

No one exerted more authority on the subject of war crimes than the chief prosecutor and co-author of the trial rules for Nuremberg, Brig. Gen. Telford Taylor, author of "Nuremberg and Vietnam: An American Tragedy."

U.S. Supreme Court Justice Robert H. Jackson had opened Nuremberg with the declaration that theirs would not be a victor's justice; that the imposition of the rules of war would thereafter be equally applicable to the victor and the vanquished. Jackson and his fellow prosecutors thought application of the Nuremberg principles would usher in a new era of world peace, as world leaders were called to account for their actions. That the U.S. would prove unwilling to adjudicate its own later conduct constituted a tragedy for the Nuremberg prosecutor, considering our country's role in Vietnam.

The exposure of My Lai had forced a semblance of accountability. Twenty-four officers and soldiers were charged for the massacre or its cover-up. Just two of them faced courts-martial. Only one, Lt. William L. Calley, would be convicted and sentenced to life in prison, only to have his sentence commuted after serving just three months in jail.

Taylor didn't know the trial's outcome as he wrote his treatise on the applicability of Nuremberg and Tokyo (the Tokyo War Crimes Trials, 1945-1948) to Vietnam. Offering a legal matrix for decision, Taylor thought the burden of superior orders mitigated the responsibility of low-level soldiers facing charges for My Lai and shifted responsibility up the chain of command.

In perhaps the most telling case Taylor cited as precedent, Gen. Tomoyuki Yamashita, the Japanese army commander in the Philippines, was prosecuted by a U.S. Military Commission for atrocities committed against civilians and prisoners of war, despite the fact that he had not ordered the atrocities and there was no evidence that he even had direct knowledge they had occurred. In a verdict upheld by Gen. Douglas MacArthur and the U.S. Supreme Court, Yamashita was found guilty for failing to "provide effective control of his troops" and sentenced to hang.

Civilian leaders were also liable under Nuremberg and Tokyo, placing American presidents and cabinet members alike at risk of prosecution if the same terms were applied to Vietnam.

Taylor declined to name names of potential civilian defendants for a war crimes trial, arguing that the extent of their knowledge of the war's effect on civilians was still too speculative. (Presumably, Taylor, who had cited "The Military Half" in his own work, didn't know that Schell had reported his findings on Quang Ngai to Secretary of Defense Robert S. McNamara late in 1967 and had given him a copy of his notes. Schell agreed to keep their meeting off the record, an agreement he upheld until McNamara's death.)

Taylor had no such reticence about naming military leaders. His list of potential defendants included Gen. William Westmoreland and the chain of command leading as high as the chiefs of staff in Washington. He would later go on the record, naming both Presidents Johnson and Nixon as potentially culpable for war crimes.

The Aggression Test

Most damning then, and 50 years hence, is that Taylor's treatise raised the specter of the gravest of war crimes: aggression.

The "crime against peace" had never before been prosecuted. But the Nazis' undisputed aggression in Europe and Japan's in Asia made it central to Nuremberg and Tokyo. It was American jurists' conviction that German and Japanese aggression could be proven that secured their leadership of the tribunals. With the "aggression test" applied, self-defense became the only legitimate basis for war.

While the legal standard endured, application of the aggression test would prove challenging. Taylor noted its prominence in the dueling narratives of the Vietnam era--the Johnson and Nixon administrations both claimed North Vietnamese aggression, while the Vietnamese insurgents and American anti-war protesters claimed American aggression. The official U.S. narrative has proven the most persistent and continues to stymie analysis of the war.

U.S. war planners framed Vietnam as a war that pitted "North" against "South," with the U.S. bringing its weight to bear in support of a democratic South Vietnam. North Vietnamese invasion and aggression was key to the official narrative. Aggression had to be demonstrated to make a legal case for war.

But the official narrative fails the truth test--and the aggression test--as amply documented by the Pentagon's own historians.

Another legal treatise on the bibliography, "Vietnam and International Law," by the Lawyers Committee on American Policy Towards Vietnam, put the facts simply: "[a] separate state or nation of 'South Vietnam' has never existed."

Vietnam's division at the 17th parallel had only endured past 1956 because the U.S. supported a client state in the south that thwarted the popular election slated by the Geneva Accords to reunify the country.

The problem as the U.S. saw it--and as documented in the Pentagon Papers--was that Ho Chi Minh would have handily won the election, putting all of Vietnam under Communist control.

The Eisenhower administration chose instead to throw its support behind Ngo Dinh Diem, a nationalist who was thought to represent a "third force" in South Vietnam, but who quickly demonstrated his willingness to crush his political opposition through mass incarceration and extermination. In the months before the Geneva-mandated election, Diem's regime jailed as many as 50,000 people and killed 12,000. Then, "abetted" (the term used by the Lawyer's Committee) by the U.S., Diem refused to participate in the elections.

Popular opposition to Diem overwhelmed his usefulness, and he was deposed seven years later in a CIA-backed coup. John F. Kennedy had sanctioned the coup, but he had not anticipated Diem's assassination. Just three weeks later, Kennedy would meet the same fate, passing responsibility for Vietnam to Lyndon Johnson.

In a successful bid to demonstrate North Vietnamese aggression, the Johnson administration used the Tonkin Gulf Incident--also debunked in the Pentagon Papers--to create a pretext for war. Congress complied with the Tonkin Gulf Resolution, giving Johnson a congressional blank check. Tonkin would be one in a stream of North Vietnamese aggression tales that flowed unrelentingly throughout the course of the war.

Reports of North Vietnamese aggression were belied by the Pentagon's own research that the insurrection was "southern bred" and that the Viet Cong were the popular favorite and de facto government in most of the rural south.

The North Vietnamese aggression narrative evaporates once we've dispensed with the myth of two Vietnams and the ensuing illusion of the U.S. as protector of a democratic South Vietnam. The evidence points to the other narrative--that the U.S. was the aggressor.

In that light, the Vietnamese insurgents--southern bred, with help from the north--become freedom fighters, not aggressors.

This is not to deny war crimes on both sides. Hue is often mentioned as the most notable atrocity committed by Vietnamese insurgents.

But Nuremberg held that by breaking the peace, aggression acts as a precursor crime, creating the conditions for other war crimes. As such, aggression is the ultimate offense. Atrocities like My Lai and Hue all too likely result.

Calls for Inquiry

Richard Falk, who has several offerings on Sheehan's list, offered the legal opinion that if Vietnam was found to have been an illegal war--and, thus, by definition an aggressive war--the policymakers who initiated and prosecuted the war were liable.

Taylor thought litigation of the aggression charge impossible in 1970 since the secret papers that might have documented the decision-making behind the Vietnam War were unavailable. After release of the Pentagon Papers in 1971--which debunked the Tonkin Gulf Incident and documented U.S. planners' knowledge that Ho Chi Minh would have won the thwarted democratic elections--Taylor called publicly for a high-level inquiry.

Sheehan also called for an inquiry. His bibliography represented, he thought, "the beginnings of what promises to be a long and painful inquest."

That inquest never occurred.

While we can't quantify the ramifications of that failure, theorists like Robert Jay Lifton foretold the psychic toll our war crimes complicity might take on America. Lifton testified before Congress in 1970 ("War Crimes and the American Conscience") that our denial of guilt and accountability had involved America in "a malignant spiral of self-deception, brutalization and numbing" that reverberated back to the States. He thought it might take decades for America to recover, if we could recover at all.

If only his words weren't so prophetic.

The commemoration of the 50th anniversary of My Lai this month offers an opportunity to take stock of the wider implications of that disastrous March day and American culpability for the gravest of crimes.