Discipline and Criminal Law
Criminal offenses in the Army were not a serious problem in the early years of U.S. involvement in Vietnam. At the beginning of 1965 the monthly Army court-martial rate in Vietnam was 1.17 per 1,000; at the end of 1965 it was 2.03 per 1,000. The Army-wide court-martial rate for 1965 was 3.55 per 1,000.
Prior to the massive troop buildup that began in 1965, the U.S. military force was relatively small and consisted largely of individually screened volunteers and selected units with a high percentage of career officers and noncommissioned officers. Most American civilians in the country at that time were dedicated career government employees. A few courts-martial were held in Vietnam; all serious Army cases were sent to Okinawa for trial, and the Navy and Air Force sent their serious cases to the Philippines. Serious crime in the small U.S. civilian community was virtually nonexistent. There was no drug problem, and black market dealings and currency manipulation were insignificant compared to the levels reached in later years.
After 1965, as troop levels rose rapidly and major U.S. contractors began operations on a countrywide scale, the picture began to change. Not only did the number of foreigners in Vietnam multiply many times, but the nature of the foreign population changed. As the war progressed and the American Army expanded, the Army was forced to rely heavily on relatively inexperienced officers and noncommissioned officers, young draftees, and volunteers. While the overwhelming majority of these men performed exceptionally well in the service of their country, there were those whose immaturity and lack of motivation made them susceptible to misconduct. On the civilian side, many of the contractor employees who flooded the country were drawn by the prospect of easy money and an exciting, unrestricted life. The presence of Free World Military Assistance Forces from Korea, Australia, New Zealand, Thailand, and the Philippines further complicated the legal scene.
It did not take long for the less respectable elements of the war-disrupted, conglomerate society to devise schemes to exploit the situation, often in conjunction with U.S. or allied troops or civilians. Most illegal activity for profit fed on the massive influx of U.S. goods
and money, which could not be absorbed into the local economy. As commander of all Free World forces in Vietnam, the Commander, U.S. Military Assistance Command, Vietnam, was concerned with the state of discipline within the entire allied community. The Republic of Vietnam military establishment and the various Free World military forces each had its own system of military justice and could maintain discipline and punish offenders within its ranks.
The concern of the Commander, Military Assistance Command, at the allied level, therefore, centered primarily on the prevention of flagrant, widespread corruption, or violations of the Geneva Conventions and mutual assistance agreements which could hinder the war effort by causing dissension among the allies or by drawing the censure of world opinion. Allied commanders recognized the need for maintaining high standards of behavior, and co-ordinated with the Commander, U.S. Military Assistance Command, in establishing policies and settling problems. The commander himself was not only concerned with discipline among U.S. troops, but he was also responsible for administering military justice within the entire allied command.
Military Justice in Vietnam
The evolution of a military justice organization for Vietnam was determined by the fact that MACV was a unified subcommand under the Pacific Command. This meant that the Commander, U.S. Military Assistance Command, Vietnam, commanded all Army, Air Force, Navy, and Marine Corps units in Vietnam, and command headquarters was comprised of members of each of the services. Within each service, the rules prescribing the authority to convene general courts-martial were contained in service directives promulgated at the department level of the service. Rules for convening special and summary courts-martial were issued by MACV. In Vietnam the commanders of the Army, Navy, Air Force, and Marine elements exercised jurisdiction over their respective services. Within MACV headquarters, an officer from each service was designated commanding officer for all headquarters personnel of his service.
Few serious crimes were committed by troops in Vietnam prior to 1965, and the Military Assistance Command was not staffed to administer a heavy volume of military justice cases. There were few U.S. lawyers in Vietnam, military judges were flown in from Okinawa as needed, and there was no military confinement facility for U.S. troops in Vietnam. Before March 1965 only summary and special courts-martial were tried in Vietnam, and these were restricted to cases in which only U.S. military personnel were parties and no Vietnamese witnesses were required. On 10 March 1965 the Secretary of the Army authorized the Commanding Officer, U.S. Army Support
Command, Vietnam, to convene general courts-martial. The major U.S. Army units which began arriving in mid-1965 brought with them their own courts-martial jurisdiction and their own judge advocate officers to administer the military justice and other legal programs of the command.
Headquarters, U.S. Army Vietnam, was activated at Long Binh in 1966, and took over from the Military Assistance Command direct responsibility for co-ordinating and administering the military justice program in Vietnam for the Army. General Westmoreland, Commander, Military Assistance Command, was also Commanding General, U.S. Army, Vietnam. The day-to-day operations of U.S. Army, Vietnam, were directed by Brigadier General John Norton, Deputy Commanding General who was appointed by General Westmoreland. U.S. Army, Vietnam, was responsible for providing control, service, and support for all U.S. Army forces that comprised the Army component of the Military Assistance Command. As new Army units arrived in Vietnam, they were assigned to U.S. Army, Vietnam. Army judge advocate replacements arriving in Vietnam were assigned directly to MACV or to U.S. Army, Vietnam, with the overwhelming majority going to U.S. Army, Vietnam, where they were reassigned to specific units. At the peak of the buildup in 1969 there were 135 Army judge advocate officers in Vietnam. Of these, 128 were providing legal support for units of U.S. Army, Vietnam, and only 7 were assigned to U.S. Military Assistance Command, Vietnam. The Air Force, Navy, and Marine Corps continued to administer their respective military justice programs with their own attorneys.
With the rapid troop buildup, the military attorneys trying courts-martial in Vietnam labored under a staggering case load. (See Appendix K.) Time imposed unrelenting pressure on all who were involved with a case. Given the twelve-month tour of duty in Vietnam, it was an unusual case that did not involve at least a few key persons who were due to rotate back to the United States in a short time. Because the Army was reluctant to hold people in Vietnam beyond their rotation dates, or to have them returned from the States for any but the most serious cases, justice in Vietnam had to be swift if there was to be justice at all. Under the best of conditions the preparation of a case for trial requires a formidable amount of work and a reasonable amount of time. In the Vietnam war zone, there were aggravations enough to frustrate the most placid attorney, and the simplest cases sometimes required more work and time than had been anticipated judge advocates were not immune to the turmoil caused by the twelve-month rotation cycle, and this, coupled with transfers within Vietnam from one unit to another, meant that the offices of the judge advocates often suffered from a high turnover rate of legal and clerical personnel.
Clerical personnel generally had little or no preparatory legal training; essential office equipment was apt to be in short supply from time to time; and it was not unusual for an attorney or clerk to spend hours on the telephone trying to get through to a base in another part of Vietnam in order to obtain needed information. The search for the location of participants in trials was often frustrating, and the co-ordination necessary to bring all elements together at the right time and place was difficult and sometimes impossible to achieve.
Of course, not all crimes were committed at the major base camps. If an offense occurred in the field or at an artillery fire support base in a remote jungle clearing, judge advocates went to the scene to interview witnesses or examine evidence. Security conditions seldom permitted surface travel, and air transportation was at a premium, with the highest priorities naturally given to tactical, logistical, and command requirements.
Interviewing witnesses posed some special problems. If the witnesses were all from one unit and that unit was in the field, commanders were understandably reluctant to relieve the men from an operation and return them to base camp for an interview. The alternative solution of bringing the trial and defense counsel, and sometimes the accused, an investigating officer, and a stenographer out to the field to interview the witnesses often was not feasible. If the witnesses were from several different units, as sometimes happened if the offense occurred at a major base or rest and recreation center, co-ordination with each of the units was necessary to obtain interviews. Securing physical evidence which required laboratory analysis was also difficult. If a case required analysis of ballistics or drug samples, material usually had to be sent to Saigon or Japan, and sometimes weeks passed before the test results were returned.
Transmitting the required paperwork up and down the chain of command could be a frustrating and lengthy process where units were spread all over an entire corps area and commanders changed locations frequently. Transcribing the volumes of testimony from investigations and trials was a tedious, time-consuming job for the hastily trained court-reporters who prepared the records of trial.
Trials involving Vietnamese witnesses added another dimension. In many cases it was difficult to locate civilian witnesses, even with the assistance of the National Police. When Vietnamese witnesses were available, there was frequently a communication problem because of the difference in language and culture. Sometimes an offense did not come to light until long after the incident had occurred. Investigation then became extremely difficult, since there was a high probability that essential evidence or witnesses were no
longer available, or that some of the principal suspects had been discharged and were no longer subject to military jurisdiction.
Most cases involving Vietnamese victims were investigated and tried as common law crimes because larceny, assault, rape, and murder are offenses against the U.S. Uniform Code of Military justice regardless of the nationality of the victim.
My Lai was popularly regarded as a "war crime" in the sense that unarmed Vietnamese civilians were murdered by U.S. troops during a combat operation. Technically, of course, the killing of these South Vietnamese people was not a war crime. The victims were citizens of an allied nation, not enemies protected under the Geneva Conventions, but citizens protected by the law of Vietnam, and the perpetrators were U.S. soldiers, governed by the U.S. Uniform Code of Military justice. Within the scope of the Uniform Code of Military justice, the My Lai murders were not legally distinguishable from other homicides—the My Lai cases required the same investigation, the same administrative processing, the same type of evidence, and the same standards of proof as any other homicide case tried under the code. The My Lai case first came to light in the United States, and the initial investigation was conducted by agents of the Inspector General and the Army Criminal Investigation Division. When investigators, counsel, and accused began arriving in Vietnam to obtain statements of witnesses and other evidence, the MACV Staff judge Advocate was asked to provide co-ordination and support for those having legitimate interest in the case. In addition to being the initial point of contact for visiting groups concerned with My Lai, the MACV Staff Judge Advocate also maintained liaison with the Vietnamese colonel, who was himself an attorney, from the joint General Staff, whose authorization was required before any Americans could interview any Vietnamese concerning the case.
Headquarters, Military Assistance Command, Vietnam, was not a courts-martial convening authority and its judge advocates were seldom involved in the trial of courts-martial. The MACV Staff judge Advocate assisted the Commander, Military Assistance Command, in establishing legal policies applicable to the entire U.S. command, in devising jurisdiction organization for the administration of military justice within the command, and in monitoring the justice program to promote equal application of law throughout the command. The MACV Staff judge Advocate also co-ordinated with appropriate Vietnamese officials on criminal problems of interest to both governments, such as black market activities, currency manipulation, and drug violations.
Black Market Activities
Vietnamese port and storage facilities were not adequate to process the huge volume of U.S., goods that came ashore to support the sudden troop buildup which began in March 1965. As a result, there was considerable confusion in off-loading, transporting, storing, and distributing cargo. Under the circumstances it is hardly surprising that some goods never arrived at their destination. While there were losses of machinery, vehicles, construction material, and virtually every other type of commodity, military exchange merchandise was in especially great demand on the black market because exchange goods were generally small in bulk, high in value, easily disposed of, and not available on the civilian market.
During the early months of the troop buildup there were no proper storage facilities for exchange goods, which had to be kept in thirteen different locations in the Saigon area alone. Goods had to be moved from the port in open, often unguarded, vehicles to storage compounds where there was little security. As a result, loss and pilferage were constant. Exchange losses for 1965 were $2.25 million from total sales of $50 million for a loss rate of 4.5 percent.
Black market operations were harmful in several ways, the most obvious being the dollar loss to the exchanges from stolen merchandise, and the added expense of increased security measures. The most serious effects of this illegal activity, however, were borne by the Vietnamese. The easy money to be made in the black market went into the hands of a very small percentage of the population, and even fewer Vietnamese achieved substantial wealth through the black market. But the profits generated by the sale of black market goods aggravated the already inflated economy, driving up prices for all Vietnamese. Moreover, the obvious disparity in the economic condition of those Vietnamese dealing in the black market and other shady enterprises and those who struggled to eke out an honest living in the wartime economy fostered a spirit of cynicism detrimental to the government's cause.
General Westmoreland realized the seriousness of the situation and sought to bring it under control. In 1966 items in great demand, such as cigarettes, cameras, electric fans, record players, tuner-amplifiers, movie and slide projectors, radios, tape recorders, typewriters, television sets, watches, and beer were rationed. Premier Ngyen Cao Ky warned the Saigon street vendors that illegal sales would no longer be tolerated, and when his warnings were ignored, the Vietnamese police moved in on 17 November 1966, smashing street stalls and confiscating merchandise. Some of the stalls were back in operation by the end of the year, but few of the luxury items which previously had been prominently displayed were openly vended.
In 1967 the Irregular Practices Committee, consisting of three U.S. Embassy representatives and the MACV Staff Judge Advocate, was formed to find ways to curb black market activity. In October of that year, following the initial report of the committee, the ambassador took action to implement the recommendations of the committee. An automated system for recording dollar conversions and purchases of dollars was instituted. A method of identifying civilians who abused military privileges and of revoking their privilege cards was devised. There was better inspection of exchange concessionaire goods and military directives against illegal activities were revised and made more stringent.
Illegal currency transactions were often tied to black market commodity sales, and produced many of the same harmful effects. The war had brought rampant inflation to Vietnam, with the result that the Vietnamese national currency, the piaster, had constantly shrunk in value in terms of the U.S. dollar. Even though the piaster was devalued several times during the war, the going rate for U.S. currency in terms of piasters in the Vietnamese market place was considerably higher than was the official rate of exchange agreed upon by the two governments. Thus, someone with access to both U.S. and Vietnamese currency who had currency exchange privileges could take X number of piasters and purchase 51.00 U.S. currency (X being the official rate of exchange at a U.S. installation). He could then take the U.S. dollar, go into the Vietnamese market, and purchase X+Y piasters for his dollar—Y being the difference between the official rate and the black market exchange rate. The Y number of piasters was the profit on each transaction. Because this kind of manipulation allowed an individual to recirculate his money constantly, a relatively small initial capital investment could quickly be turned into a sizable fortune.
Until 1 September 1965, U.S. dollars were used as an authorized medium of exchange in Vietnam. After that date, U.S. troops were paid only in Military Payment Certificates, and generally all U.S. civilian firms dealt only in certificates or piasters. The certificates were scrip money, printed by the United States and freely negotiable as money at all U.S. facilities. The only use for which certificates were not negotiable was conversion into U.S. green dollars, which were withdrawn from the economy. Soldiers and U.S. civilian employees who received pay in Vietnam were paid in military certificates. If they wished to send money home, they could take out an allotment payable to an individual or a bank account, or buy money orders, or open a checking account at a military banking facility in Vietnam. Checks or money orders cashed within Vietnam were
payable only in certificates. U.S. personnel who needed piasters for authorized purchases of Vietnamese goods or services could exchange certificates for piasters at official exchange facilities.
The purpose of withdrawing all U.S. dollars from circulation in Vietnam was to keep separate the U.S. and Vietnamese monetary systems, thus deterring black market operations and currency manipulation, and removing some of the inflationary pressure on the Vietnamese economy. The issue of Military Pay Certificates in the American community made illegal currency transactions more difficult but did not eradicate them, since certificates soon began to pass for dollars in the black market as well as in U.S. facilities. This was possible because, while certificates could not be negotiated for dollars in Vietnam, they could be used to purchase money orders or to write checks that could be sent outside of Vietnam and then cashed in dollars or other currency. In order to counter such activities, the U.S. command in 1966 put controls on the use of U.S. postal money orders. No individual was allowed to purchase a money order for any amount in excess of the pay drawn by him that month (pay vouchers had to be shown); the names and addresses of purchasers and payees were recorded, and purchases which were considered to be excessive were reported to the U.S. Internal Revenue Service for investigation.
The court-martial statistics reflect the growth of black market activity in Vietnam. In 1967 there were 64 courts-martial for currency and commodity violations on the black market, while in 1968 there were 232 commodity violaters (including 12 civilians) and 239 currency violaters (of whom 105 were civilians). Because of the growing number of currency violations, a change of Military Payment Certificates, called a conversion, was called for. The first series of certificates, issued in 1965, was still in use in 1968, by which time it was recognized that a substantial amount in certificates had fallen into the hands of unauthorized persons, such as black market money changers.
On conversion day, which was predetermined and held a close secret (28 October 1968), all individuals authorized to possess certificates were required to turn over all certificates in their possession to specially appointed finance agents stationed at each military installation. No one was allowed to leave the installation until he had turned in his certificates, and certificates were accepted only from individuals who held the required identification authorizing possession of certificates. A record was kept of the amount turned in by each individual, and an equal amount of money printed in the new certificate series was returned to each individual. Once the conversion was complete, no certificates from the old series were accepted for conversion, nor were old certificates any longer negotiable as cash.
Thus, the old series of Military Payment Certificates became worthless, and anyone holding such notes suffered loss directly proportional to the value of the notes he held. On this first conversion date, $276,931,802.50 in certificates were converted. The amount of $6,228,597.50 in old certificates was not accounted for, and presumed to be in the hands of unauthorized persons.
As troop strength peaked in 1969, further steps were taken to combat black market commodity and currency violations. A second currency conversion was accomplished on 11 August 1969. On 2 November 1969 the Military Assistance Command promulgated new regulations specifying activities prohibited for U.S. military personnel; U.S. nationals employed by, serving with, or accompanying the armed forces; other nationals employed by the United States; contractors invited by the United States and doing business in Vietnam; all nonappropriated fund activities and their concessionaires; and all persons authorized to use exchanges, clubs, post offices, and other U.S. military facilities. The regulations specifically prohibited more than two dozen activities, most of them involving the unauthorized possession, acquisition, or transfer of exchange merchandise, Military Payment Certificates, dollars, identification cards, or ration cards.
The Drug Problem
The U.S. command found the problem of drug abuse particularly hard to deal with in Vietnam. In September 1966 the U.S. Military Assistance Command made a survey of the availability of drugs in the greater Saigon area-Saigon, Cholon, and Tan Son Nhut. The survey showed that there were twenty-nine fixed outlets in this area, and that drugs were readily available from cycle and pedicab drivers, bar girls, shopkeepers, hotel clerks, and others who dealt with the public. The Vietnamese drug laws were ill-defined. No central Vietnamese narcotic enforcement agency existed, and enforcement of existing laws was lax. There was no government control over marihuana and only a. little over opium. The U.S. Embassy was informed of the results of the survey, and on 12 November 1966 General Westmoreland asked the embassy for action on the matter; none had been taken by the year's end. Of the 100 drug cases investigated in the U.S. command in Vietnam from 1 July 1965 to 30 June 1966, 96 involved marihuana.
By 1967 marihuana cigarettes were selling for 200 each in Saigon and $1.00 each in Da Nang. Opium was $1.00 per injection, and morphine $5.00 per vial. Heroin had not appeared on the market. There were 1,391 U.S. military investigations, involving 1,688 persons, for use of marihuana in 1967. This monthly rate of .25 per 1,000 troops was still lower than the Army-wide average of .30 per 1,000 troops. There were 29 hard narcotics investigations, involving
25 persons, for illegal possession, use, or sale of opium and morphine. There were 427 courts-martial for marihuana and hard narcotics abuse in Vietnam in 1967.
In October 1968 the Vietnamese government publicly condemned the use of or trafficking in marihuana and opium, and issued instructions to province chiefs to forbid the growing of marihuana. The recently established Vietnamese Narcotics Bureau was expanded, and the U.S. government sent an agent from the Bureau of Narcotics and Dangerous Drugs to Saigon to provide professional assistance to the Vietnamese. A program of using aircraft to discover marihuana crops and sending in Vietnamese troops to destroy the crops was instituted. In June 1968 the marihuana use rate among U.S. troops, based on reported incidents, was 1.3 per 1,000 (194 cases); by December it had climbed to 4.5 per 1,000 (523 cases). The opium rate rose from .003 per 1,000 in June to .068 by December. There was a continued rise in the drug use rate in 1969, with 8,440 apprehensions. During 1970 there were 11,058 arrests of which 1,146 involved hard narcotics.
In August 1970 the Drug Abuse Task Force was formed to seek new solutions to the drug problem and make recommendations to General Westmoreland. The task force included representatives from most of the U.S. staff agencies, major subordinate commands of MACV, the embassy, the U.S. Agency for International Development, customs, and the Bureau of Narcotics and Dangerous Drugs. The task force worked through September to complete a report, the conclusions of which were embodied in MACV Directive 190-4 of December 1970. The objectives of this directive were to eradicate the sources of drugs, to strengthen customs and postal procedures, to improve detection facilities, to co-ordinate the various drug abuse programs, to integrate law enforcement programs, to improve statistical reporting, and to rehabilitate drug abusers.
The campaign against drug abuse was waged on many fronts. Commanders incorporated drug abuse talks as part of the command information program; drug abuse councils were established in commands throughout Vietnam; chaplains, physicians, and judge advocate officers worked to impress on the troops the dangers of drug abuse; amnesty programs were established and detoxification centers were opened; law enforcement agencies intensified their efforts; and in 1971 individual and unit urinalysis tests to detect the presence of narcotics in the bloodstream were instituted.
Despite the concerted efforts of the command, there was an alarming increase in the use of hard narcotics in 1971, when the number of offenders involved with hard drugs, mostly heroin, increased sevenfold, to 7,026. This trend was particularly disturbing in view of the continually decreasing troop strength in Vietnam. On 18 June 1,971 the Secretary of Defense sent a message to the U.S. services informing
them of the presidential direction that the drug problem be given urgent and immediate attention and announcing a program to identify military personnel leaving Vietnam who were on narcotics and to give them the opportunity for drug treatment at facilities in the United States.
The U.S. command made a tremendous effort to curb drug abuse in Vietnam, and some progress was made, but drugs were to remain a significant problem until late 1972, when troop strength figures began to drop to the level of 1964 and earlier years. As the drug problem intensified from 1966 to 1972, the legal emphasis for dealing with drug offenders gradually shifted from prosecution to administrative action.
It became increasingly clear that trial by court-martial was an awkward, ineffective, and expensive means of attempting to cope with a large-scale problem. Moreover, the public attitude toward individual drug users, particularly young soldiers, was changing; the public began to see these men not as criminals deserving punishment, but as suffering individuals requiring treatment. This attitude was reflected by the government and the armed services. Soldiers on drugs were encouraged to take advantage of the amnesty programs, detoxification centers, and drug counseling programs, which became increasingly available in Vietnam in 1970 and 1971. Soldiers whose behavior indicated that they lacked the desire or ability to rehabilitate themselves were eliminated through administrative channels. Soldiers who had unresolved court-martial charges pending against them for drug offenses and who did not wish to remain in the service often were allowed to resign for the good of the service rather than face trial by court-martial, unless the facts pertaining to the charges indicated they were active, commercial pushers of drugs, in which case trial was sought.
Criminal Jurisdiction Over Civilians
Prior to 1965 most U.S. civilians in Vietnam were career government employees and serious criminal acts in the civilian community were a rarity. As the number of civilians, primarily employees of U.S. contractors, in Vietnam increased, so did the incidence of crime attributable to them. Offenses committed by U.S. civilians were of three general types: rowdyism, abuse of military privileges, and black market activities and currency manipulation.
The U.S. Ambassador requested the MACV Staff judge Advocate to prepare a staff study on the limits of the ambassador's existing authority over U.S. civilians in Vietnam. The study, completed in April 1966, looked to the United States Code, executive orders, the Pentalateral Agreement, and economic and other agreements between the United States and Vietnam for authority. The staff study con-
cluded that the ambassador could issue police regulations for all U.S. citizens in Vietnam if the regulations were not in violation of U.S. or Vietnamese laws, and that the armed forces police could enforce such regulations. The authority of the armed forces police to deal with civilians was based on the Vietnamese citizen's arrest law, which was similar to citizen's arrest laws in many U.S. states; on the need for military security; and on the authority of the ambassador as the senior U.S. official in Vietnam.
The embassy assumed the responsibility for furnishing each U.S. civilian with an identification card, and for ensuring that all U.S. civilians were aware of the agreement authorizing the armed forces police to exercise certain police powers over them. Discretion and minimum force were to be used by armed forces policemen in dealing with civilians, and U.S. civilians who were apprehended were to be released on their own recognizance, released to their employers or supervisors, or released to the U.S. Consulate or Embassy, as applicable.
The year 1967 brought an increase in serious crimes committed by U.S. civilians in Vietnam, and intensified discussion between the U.S. command in Saigon and the State Department in Washington over the policy of trying U.S. civilians by military courts. Of special concern to U.S. officials in Saigon were Americans involved in black market activities and currency manipulation. The State Department, however, considered administrative measures, such as withdrawing military privileges and loss of employment, to be sufficient for dealing with most offenses, and believed that only the most serious and exceptional cases should be tried by court-martial.
The difference of opinion between the U.S. command in Saigon and the State Department concerning the exercise of criminal jurisdiction by the military over U.S. civilians in Vietnam arose over a total of sixteen cases which the U.S. Military Assistance Command desired to try during the period from November 1966 to August 1968. In six of these cases the command requested and received State Department approval to seek a waiver of jurisdiction from the Vietnamese. Two of the cases were dropped by the U.S. command because of problems that arose between the time charges were preferred and the time the command obtained State Department permission to seek a waiver of jurisdiction from the Vietnamese government. In the remaining four cases, a waiver of jurisdiction was sought and was granted by the Vietnamese, and the cases were tried.
One of the four cases which was tried with the consent of the State Department was that of William Averette, charged with conspiracy to commit larceny and attempted larceny of 36,000 U.S. government-owned batteries. Averette was tried by general court-martial, convicted, and ultimately sentenced to confinement at hard labor for
one year and fined $500. On 30 April 1970, the U.S. Court of Military Appeals, the highest court in the military system, reversed Averette's conviction and ruled that the military had no jurisdiction over civilians in Vietnam because Article 2 (10) of the Uniform Code of Military justice was applicable only in time of a declared war. Thus, the question of whether, as a matter of policy, the military should try civilians in Vietnam was made moot. As a matter of law, the services could not exercise criminal jurisdiction over civilians in Vietnam, and no further cases were tried.
Because judicial action was ineffective in curtailing the illegal activities of U.S. civilians in Vietnam, the MACV command came to rely increasingly on the administrative sanctions which had been proposed in 1966. Military privileges were withdrawn from offending civilians, particularly U.S. contractor employees, throughout 1966, 1967, and 1968, but it was not until 1969 and 1970 that the administrative "debarment" program reached its most uniform and widespread application. (Debarment was the term used to denote withdrawal of military privileges and a determination of unfitness for employment in Vietnam.)
In addition to MACV Memorandum 190-1, which assigned responsibilities for investigation and proceedings pertaining to debarment actions, the debarment policy was further formalized in September 1969 when Defense Procurement Circular 73 was made a part of all contracts for employment of civilians in Vietnam. This clause notified all civilian employees planning to work in Vietnam under U.S. government-sponsored contracts that they were to abide by the regulations and rules of conduct established by MACV, and that if they engaged in illegal activities they would lose their military privileges and be barred from employment in Vietnam. The employing contractor agreed that he would terminate the employment of an employee barred by MACV.
In January 1970 the U.S. Embassy announced that, as a matter of U.S. policy, contractor employees whose privileges were suspended or withdrawn for cause by MACV would be considered unacceptable for continued employment under U.S. government contracts. In February MACV determined that this policy would be applied retroactively; that is, individuals whose military privileges had been revoked in the past were also unacceptable for continued employment.
As of January 1968 there were seventy-five individuals on the MACV Provost Marshal's debarment roster. By February 1970 the number had grown to 613; by April 1971 there were .943 U.S. civilians and nationals of other countries from whom military privileges had been withdrawn and who were unacceptable for employment in
Vietnam under U.S. financed contracts or as U.S. government direct hire employees on nonappropriated funds. Most debarment cases, perhaps over 90 percent, involved currency manipulation, smuggling, or postal and black market violations. There were also debarments for firearms violations, larceny of government property, and serious driving offenses. Once their employment was terminated and their access to U.S. military facilities was cut off, many debarred civilians left Vietnam. Others, however, remained in Vietnam working at jobs unrelated to the U.S. government and living on the Vietnam economy.