THE LEGAL DILEMMAS

And I'll obey our chiefs when they lead well, Not when they counsel crimes.

--Euripides

WHATEVER its ultimate impact on U.S. policy in Viet Nam, the My Lai massacre will profoundly test an evolving principle of U.S. law--that every wrong should have a remedy in court. How, for example, can the Army try the men (three so far) who openly admit that they killed women and children at My Lai--but who are now civilians?

Unless those men retain military links, such as reserve status, they may be immune from prosecution. In 1955, the Supreme Court ruled that civilians cannot be court-martialed for crimes they committed during military service. The court did suggest a remedy: new laws could provide for trial in federal courts of ex-servicemen charged with military crimes. So far, Congress has not enacted the necessary legislation. Nor can the Saigon government prosecute the discharged My Lai participants--even if it wanted to. An agreement signed by the U.S. and South Viet Nam prevents each country from trying nationals of the other. As an alternative, the Army may ask President Nixon to appoint a special commission to try the men under the 1949 Geneva Convention that forbids deliberate mistreatment of noncombatants in a war zone.

Primary Allegiance. Serious legal problems also confront the Army in its case against Lieut. Calley and Sgt. Mitchell, the only active servicemen thus far accused of crimes at My Lai. For one thing, Army lawyers fear that detailed press interviews with potential witnesses may permit the accused to claim that they cannot get a fair trial. Almost surely, moreover, both Calley and Mitchell will argue at their trials that they acted under "superior orders," a legal defense that gained respectability in the 19th century when military officers extolled iron regimentation and insisted that superiors could do no wrong.

Two world wars changed all that. The Nurnberg Trial of 22 Nazi leaders after World War II revived one of the great tenets of Western thought: that a higher law sometimes requires men to give their primary allegiance to humanity rather than the State. Although the Nazi defendants pleaded "state orders," 19 were convicted and ten were hanged. To skeptics, Nurnberg proved mainly that losing a war had become a crime under international law. Nevertheless, the supremacy of civilized rules of behavior was enunciated in a U.N. report: "The fact that a person acted pursuant to order of his government or a superior does not relieve him of responsibility under international law, provided a moral choice was in fact possible to him."

Many nations soon incorporated that principle into their military codes. One of the last to do so was France, which wrote a new military code only after its junior officers blindly obeyed rebellious generals in Algeria.

Drowned Out. Every G.I. arriving in Viet Nam receives a list of forbidden "war crimes and related acts," including torture, looting, mutilation of enemy dead and the "killing of spies or other persons who have committed hostile acts without trial." Article 118 of the Uniform Code of Military Justice, which Calley is accused of violating, holds a U.S. trooper equally guilty of murder whether his victim is a Vietnamese civilian, an enemy prisoner or a fellow American.

Despite the rules, Americans have committed a disturbing number of atrocities in Viet Nam--and prosecution has often been prompt. In the I Corps area last year, for example, seven Marines summarily hanged a Viet Cong suspect and shot two others to death. At a court-martial, one defense lawyer argued that his client had gone through "hell" after seeing Marine bodies "burned and tortured, some with their testicles cut off." Nevertheless, all seven Marines were convicted and imprisoned, one for life.

What if a U.S. soldier is actually ordered to commit an atrocity? According to the U.S. Manual for Courts-Martial, he is justified in not following an order if "a man of ordinary sense and understanding would know it to be illegal." The trouble is that such echoes of Nuernberg are drowned out by every drill sergeant's most basic lesson--instant obedience. Under military law, in fact, a man who refuses to follow an order is presumed guilty of this offense until he proves that the order was illegal at his subsequent court-martial. Disobedience in combat is even riskier. More than one soldier who has ignored an order in battle has been executed on the spot, though this practice is nowhere authorized in the military code. A prominent U.S. general often recalls that as a platoon leader during the Normandy landing he shot to death a G.I. who had broken from the unit and run down the beach. Says he: "You can't have your men running under fire, can you?"

The defense of "superior orders" has been unsuccessful in some cases that involve grave crimes. In 1954, an Army review board affirmed the murder conviction of an enlisted man who had shot a Korean to death while guarding an airfield. The guard claimed that he had been ordered to fire on anyone who did not heed his order to halt, and his lawyer said that this made him, in effect, an automaton without criminal intent. The review board rejected the argument.

Disputed Orders. One problem for both sides in the My Lai case is to clarify and pinpoint the source of the orders that Calley and Mitchell will claim they obeyed. No one has yet produced records specifying Charlie Company's mission on March 16, 1968. What Calley's orders were that day may not be known until his lawyers present his case in court and others corroborate or contradict his claims. One of the contradictors might well be Captain Ernest Medina, the company commander, who has not been charged and thus may testify for the prosecution that he gave no unlawful orders, and that Calley misinterpreted those that were given. If Medina is charged, his lawyers might try to pass the buck upward to Colonel Frank Barker, the task force commander, who was killed after the massacre. Some observers argue that the Army hopes to convict the lowest-ranking officer who is charged in the case. All the men under him might then try to get off by claiming that they were simply following his orders, which, at the time, seemed necessary and proper in a heavily Viet Cong area.

Beyond that, the Army's chief problem is that distinctions between lawful tactics and atrocities tend to blur in a war against guerrillas who look exactly like civilians and are sometimes children --though not babies. Thus, many experts on military law expect defense lawyers to make much of whatever special rules seem to govern counterinsurgency warfare. Says Boston University Law Professor Paul Liacos: "If the court buys the argument that under the circumstances it was necessary to destroy the village for the preservation of Calley's men, and that this was the field policy of the Army, then I could see a verdict of not guilty. But that's a dreadful moral position for this nation to end up with."

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