Winston Churchill once wrote:
Civilization means a society based upon the opinion of civilians. It means that violence, the rule of warriors and despotic chiefs, the conditions of camps and warfare, of riot and tyranny, give place to parliaments where laws are made, and independent courts of justice in which over long periods those laws are maintained.
The American forces brought with them to South Vietnam an elaborate system of legal code and procedure, administered by their own lawyers and judges. All these composed well-defined, precise parts of the institution of American law and were for the United States military attorney familiar tools. Probably no other modern fighting force in the world today has a legal system surpassing that of the armed services of the United States; this system accompanied and generally served well the U.S. forces overseas in combat.
In order to render effective counsel to the Vietnamese legal community, it was first necessary for the MACV judge advocates to move away from their comfortably familiar American military law system. Any attempt to solve any of the command's legal problems in Vietnam by using only American methods would have guaranteed failure. This circumstance led to a new educational experience for the MACV judge advocates, who were obliged to exert a tremendous effort to find, assemble, and digest Vietnamese laws and procedures. It was also necessary for the judge advocates to understand the groundings of Vietnamese law—its roots in familial, religious, ethnic, and other disciplines of the South Vietnamese people—before any attempt could be made at constructive assistance in the development of the Vietnamese legal system. This collection, digest, and dissemination of materials on South Vietnamese law continued throughout MACV judge advocate operations in Vietnam and was a significant contribution in itself to comparative law literature.
In some areas, the legal system and legal philosophy of the United States did give the judge advocates acceptable solutions for problems confronting the U.S. advisers' Vietnamese counterparts. The discussion of claims, for example, illustrates the concern of the United States and the allied forces even during tense combat situations to
provide recompense for injuries caused to the persons and property of the innocent victims of war. A claims responsibility has been a longstanding tenet of the United States armed services. Discharge of that responsibility by the United States and the assumption of certain claims responsibilities by the South Vietnamese government served to develop a salutary identification in the claimant's mind between his personal plight and the concern of a compassionate government. The efforts of the U.S. Military Assistance Command to control, and to eliminate when possible, such pernicious activities as black market profiteering and currency manipulation were also examples of unilateral initiatives which later melded with the efforts of the South Vietnamese authorities to control these illicit operations.
One rather brief international agreement served as a link between the application of American and South Vietnamese legal systems in the country. This was the Pentalateral Agreement of 1950, which remained viable and which governed throughout the war years in significant areas such as jurisdiction and status. Noteworthy is the fact that neither the United States nor Vietnam found it imperative to renegotiate this agreement, even though conditions changed radically and rapidly in the second decade following its signing. It was evidence of governmental pragmatism administered well through mutual respect, good will, and co-operation.
The application of the Geneva Conventions to prisoners of war and war crimes was complicated by the legal nature of the Vietnam conflict. The 1965 agreement under which the United States turned over its prisoners to the Vietnamese armed forces required great effort by many MACV advisers to assure accordance with the Geneva Conventions. The success of that effort earned the admiration of the international community.
For the United States one additional complication of the Vietnam War was that it related to no other combat experience of the young American soldier. He found himself in the jungles of a Southeast Asian land, with no definable enemy or enemy lines. This lack of certainties in itself was his foe. The combat situations in which circumstances placed the young soldier were scarcely in the minds of the drafters of the 1949 Geneva Conventions, yet he performed his mission well. Part of the credit for his record is due to the diligent planning by the Commander, U.S. Military Assistance Command, Vietnam, for an effective policy on war crimes prevention and investigation, and a program aimed at troop information and education. The rare blemishes, such as the occurence at My Lai, must not be allowed to obscure the lifesaving accomplishments achieved by the vast majority of our combat troops when they were dealing with the victims of the war.
My Lai, which came in the period immediately following the
bloody but abortive Tet offensive of 1968, revealed that there is a need to keep an eye on legal planning over the course of time to be sure it retains its vitality, relevance, accuracy, and worth. The dilutions of time and continual rotation of troops and officers on an annual basis are bound to weaken the legal structure unless it is regularly strengthened with special care and attention. Even so, no absolute insurance can be obtained that there will never be gross criminal abberations such as My Lai.
Could the risks have been minimized had the legal effort been greater at that critical time? I cannot now say, but one could suspect so. To what extent is part of the failure due to deficiencies in earlier law planning? This can only be speculation, but I am quite willing to recognize that there is a relationship. Had I to do the job over again, with all the resources of law manpower which we're always afforded my office by the Commander, Military Assistance Command, Vietnam, I would assign full-time planning duties to an experienced senior military lawyer in my office. We did not do this in 1965-66 because it seemed we could plan sufficiently within the operating divisions of the office, but it is apparent to me now that in a buildup, even one as measured and paced as in those days of early 1965 in Vietnam, planning for future legal services required just as much attention as any other aspect of military preparations. Planning is too demanding to be performed well by a military lawyer already completely encumbered with day-to-day work he regards as essential. It must be accomplished by one who can stand off to the side and visualize the direction of change and the resulting requirements; yet he must be familiar with the scene and the developing situation.
This certainly is not to say that change was unforeseen. Many changes and requirements were visualized early on. The plans for providing adequate numbers of military lawyers, with an appreciation for needed specialties and equipment for the several service components, were on the whole adequate and satisfactory. But these were traditional requirements, predictable wherever in the world large forces are assigned. They did not take into account the special role law plays in wars of insurgency and counterinsurgency.
The judge advocate field advisers added an important dimension to the law effort of the Military Assistance Command, Vietnam. They provided a U.S. military lawyer to the senior American military adviser in each of the four corps areas of South Vietnam; they observed the actual functioning of the American foreign claims operations, so important to good relations between a visiting force and the people of the host country; they saw the way refugees and prisoners were actually handled and processed; they established rapport with the key law and military figures in their zone of responsibility; and they reported military law problems as they perceived them. The field
advisers gave to their Vietnamese military counterparts advice and counsel, information, and support. And probably most valuable of all, they learned to understand something of the people of Vietnam, the better to gauge how we could best work together toward our common goals.
In order for our field advisers to perform their duties, they needed to have English translations of the current applicable laws on such matters as arrest, search, and seizure; resources and population control; confinement facilities; and the relationship between the military and the civilian police and judicial apparatus. To provide these officers with the required documents, we set about collecting all known Republic of Vietnam decrees that bore upon our interests. We had them translated as best we could, reproduced, and distributed to all U.S. personnel—and to many of our Vietnamese counterparts—who needed to know of them. In all of this we were greatly encouraged and aided by the Vietnamese lawyers and judges, military and civilian.
The collection of decrees naturally led to the need to index the documents and their contents for ready field use. This task continuously occupied the attention of several people in the Advisory Division, once the decree collection program got under way. The results, in knowledge of applicable law and in establishing a base of understanding as to legal matters between the American and Vietnamese military lawyers, were beyond our expectations. From this base we were able to develop ideas and plans for changes in our procedures and regulations to the common benefit of the commands and the people we served.
In our search for knowledge and understanding of the Vietnamese, the Law Society of Free Vietnam was conceived. Its purpose was to provide a forum for the exchange of legal ideas and information among the broadest number of informed participants-all lawyers and judges in South Vietnam, regardless of nationality, and all interested law students. The Law Society functioned for over a year, greatly aided by the Vietnamese-American Association, and accomplished much it set out to do. As the war became hotter, however, it became increasingly difficult to assemble the society, and it gradually ceased to exist. The personal associations it fostered continued, however, and benefited the individuals and the institutions that they represented for a much longer period. Even today former members of the Law Society serve the Republic of Vietnam in important positions.
Once it became clear that the conflict in Vietnam had become a war, the application of the U.S. Uniform Code of Military justice and the suppression of war crimes as distinguished from common crimes became of prime importance. We were concerned that, insofar
as we were able to accomplish it, all the Free World forces would be made aware of the applicable law and would apply it. From this developed fairly close working relationships among the military lawyers of the Free World forces, especially among the Vietnamese, American, Australian, and Korean lawyers. Contact with the representatives of the International Committee of the Red Cross and collection of data on prisoners, their apprehension and disposition, became important. Throughout all the activities of the Staff judge Advocate, the bonds of professional association that existed between the American and the Vietnamese military lawyers were the most significant asset we had. These bonds required daily care and attention in order to grow strong, but this care and attention returned dividends in friendship, understanding, and co-operation that remain substantial even today.
Throughout the period dealt with in this monograph, the attitude of the Military Assistance Command toward legal service to the command was almost ideal. There was never an obstacle to seeing the commander-client. The entire headquarters was receptive to helpful suggestions, ideas, and innovations. Never did the legal office propose an action that was not readily approved, and even requests for resources, most especially manpower, were promptly and favorably acted upon. The major difficulty, as it is for most lawyers, was the proper allocation of available professional time. There was always a heavy pressure of time-consuming work and little opportunity for reflection and long-range planning, but this was a problem only the lawyers themselves could resolve.
The law library and necessary references ultimately were adequate, but since most of the pressing work was in areas for which there was little precedent or exploratory study material, any inadequacies of the law materials in the earlier days of the Military Assistance Command were of minor significance.
Because the lawyers assigned to the MACV legal office were from the Army, Navy, and Air Force, they were all concerned at first that they would be working in a strange and difficult legal environment. This concern was warranted by the special nature of the conflict in Vietnam but not by any service differences in procedure, terminology, or methodology. It did not take any of the lawyers, regardless of his branch of service, long to grasp his role and make whatever minor adjustments were necessary in his own work style to meet the needs of the office. Service co-operation and unity of purpose were paramount.
The American Embassy in Saigon was especially helpful and useful to the MACV Staff Judge Advocate, who also furnished legal advice to the embassy. Key legal issues were personally briefed to the ambassador (at first, General Maxwell Taylor and subsequently
Henry Cabot Lodge), and the ambassador's staff was kept informed of all major legal problems and developments. The legal programs affecting in any way the Vietnamese people or communities were of special interest to the embassy, and the Staff judge Advocate was encouraged in a variety of ways by the embassy staff to expand his associations with the bench and bar of the Republic of Vietnam. There was rarely any other person or office in the American mission that could do this until the U.S. Agency for International Development, in 1968, created a civilian legal advisory position. For most of the period of this monograph the military lawyers of MACV and its service components were the only U.S. lawyers in Vietnam interested officially in law matters, military or civilian.
Finally, no discussion of legal matters in Vietnam is complete without a tribute to the South Vietnamese military lawyers who were the counterparts of the MACV judge advocates. Dedicated professional advocates, scholarly in both Vietnamese and French legal systems, these men also showed themselves eager to obtain a firm grasp of American jurisprudence. They were patriotic lawyers, judges, and law professors called to serve their country by using their skills to solve the peculiar problems caused by so unique a war. The Vietnamese lawyers were quick to impart knowledge of their legal system and equally quick to learn the American military and civilian law systems. Some concepts and high principles from American law have been incorporated into the Vietnamese military law and procedures -a tribute to the excellent rapport established by the MACV judge advocate advisers with members of the Vietnamese legal profession.
American military attorneys undertook a variety of programs and grasped numerous opportunities to educate the Vietnamese in American civilian laws. The recipients of these educational programs were those who now sit, or will sit, in positions of influence, shaping the future affairs and institutions of the South Vietnamese government. In truth, it may be said that the MACV military lawyers left the Vietnamese a legacy—American law, and respect for the potential of law in the conduct of affairs of a free and civilized people.